ORDER
A.P. Shah, J.
1. Whether the respondent No. 1 Bank has properly given effect to the concession provided to the Scheduled Castes and Scheduled Tribes in the matter of promotion within Class – I as per Government of India Office Memorandum No. 1/9/69. Estt. (Scheduled Castes) dated 26-3-1970 and Deptt. of Personnel and A. R. Office Memorandum No. 1/10/74-Estt. (Scheduled Castes) dated 23-12-1974, is the sole question which falls for consideration in this writ petition under Article 226 of the Constitution of India. The writ petition is filed by the Association of Scheduled Castes, Scheduled Tribes and Other Backward Classes along with a scheduled class of employee working in the respondent No. 1 Bank. The relief sought for in this petition pertains to the promotions to Junior Management Grade scale II and Junior Management Grade scale III (“JMGS – II” and “JMGS III” for short). The petitioners are seeking to issue a writ of certiorari to quash and set aside the promotions vide order dated 7th September, 1999 from JMGS-I to JMGS-II and JMGS-II to IMGS-III. The petitioners are also seeking a direction to the respondent No. 1 Bank to strictly follow the concession available to the Scheduled Castes and Scheduled Tribes and to promote the Scheduled Castes and Scheduled Tribes employees listed in Exhibits “M” and “N” to the writ petition.
2. For a proper consideration of the issues arising herein, it is necessary to refer to the Office Memorandum issued by the Government of India on the subject of concession to Scheduled Castes/Scheduled Tribes employees in the matter of promotion within Class – I service. The Office Memorandum reads as under:
“9.2: Promotion by selection method.
9.2 (a) Promotion by selection within group A (Class I).
In promotions by selection to posts within Group A (Class II) which carry an ultimate salary of Rs. 2000/- per month, or less, (Rs. 2250/- per month or less in the revised scale) there is no reservation, but the Scheduled Caste and Scheduled Tribes Officers, who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has been drawn up, would be included in that list provided they are not considered unfit for promotion. Their position in the select list would, however, be the same as assigned to them by the Departmental Promotion Committee on the basis of their record of service. They would not be given for this purpose, one grading higher than the grading otherwise assignable to them on the basis of their record of service.
In order to improve the chances of Scheduled Castes and Scheduled Tribes officers for selection to the higher categories of posts in group A (Class I).
(i) Scheduled Castes/Scheduled Tribes officers in Group A (Class I) Services/posts should be provided with more opportunities for institutional training and for attending seminars/symposia/conferences. Advantage would also be taken or the training facilities available at the Lal Bahadur Shastri National Academy of Administration, Mussoorie, National Police Academy, Hyderabad, Indian Institute of Public Administration, New Delhi, the Administrative Staff College, Hyderabad, etc. and
(ii) It would be the special responsibility of the immediate superior officers of the Scheduled Castes/Scheduled Tribes Officers in Class I to give advice and guidance to the latter to improve the quality of their work.”
3. We may refer to the significant features of the aforesaid Office Memorandum. They are (a) this Office Memorandum does not speak of reservation but speak of concession and facility being provided to Scheduled Castes/Scheduled Tribes; (b) this concession and facilities are limited to posts within Class I which carry an ultimate salary of Rs. 2,250/- in the revised scale of pay per month or less; (c) the concession provided to Scheduled Caste/Scheduled Tribes officers is to the effect that those Scheduled Castes/Scheduled Tribe officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which a select list has been drawn up, would be included in the select list provided they are not considered unfit for promotion. It is this format which has given rise to controversy and differing interpretations by the management of the Bank on one hand and the Association of the Scheduled Castes and Scheduled Tribes on the other, (d) The position of Scheduled Castes/Scheduled Tribes candidates so included in the select list would be the same as assigned to them by the Departmental Promotion Committee on the basis of their record of service and (e) for the aforesaid purpose Scheduled Castes/Scheduled Tribe will not be given one grading higher than the grading otherwise assignable to them on the basis of their record of service.
4. By letter dated 31st December, 1977 the Ministry of Finance, Department of Economic Affairs (Banking Division), Government of India, addressed to all the Nationalised Banks as well as to the State Bank of India and its subsidiary banks, it was intimated that the Ministry has decided “to extend the scheme of reservation in promotions also”. The letter stated that according to the Reserve Bank of India it would be difficult to formulate the scheme uniformly applicable to all the banks though the basic policy of reservation could always be enunciated. The letter stated that the Reserve Bank of India has already formulated a scheme on the subject applicable to its employees. While enclosing a copy of the Reserve Bank of India – Scheme, the public sector banks were requested to implement Government’s orders suitably in their existing scheme of promotions with such procedural modifications as may be necessary. It seems that the Union of India has thereafter issued various clarifications in respect of the implementation of the policy enunciated in the Office Memorandum. It is not necessary to refer to all of them, but suffice it to say that it has been abundantly clarified by the Union of India that there is no reservation for Scheduled Castes and Scheduled Tribes in promotion by selection and only certain concessions and facilities are to be provided to the Scheduled Castes and Scheduled Tribes Officers in order to improve their chances for selection to the higher category of posts in the Officers cadre in accordance with the directions contained in the Office Memorandum. The last such clarification is the Office Memorandum No. 3601/6/83-Estt. (SCT) dated November 1, 1990 issued by the Ministry of Personnel, Public Grievances and Pensions addressed to all the Ministries and Departments of Government of India including Ministry of Finance (Banking Division). It would be appropriate to read it here:
“2. Though in the O. M. cited above it has been clearly mentioned that in promotion by selection within Class I (now Group A) to posts which carry an ultimate salary of Rs. 2,000/- per month or less (since revised to Rs. 5700/-) the Scheduled Castes/Scheduled Tribes will be given a concession namely “those Scheduled Castes/Scheduled Tribes who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which select list has to be drawn up, would be included in that list provided they are not considered unfit for promotion”, doubts have been expressed in certain quarters as to whether the concession given hereinabove is a reservation or a concession.
3. It is hereby clarified that in promotion by selection within Group “A” to posts which carry an ultimate salary of Rs. 5700/- p.m. there is no reservation.”
5. In National Federation of S.B.I, and Ors. v. Union of India and Ors., , the precise nature and character of the concession provided by the said Office Memorandums fell for consideration. The Supreme Court after a detailed examination of the said Office Memorandum as well as the clarifications issued by the Union of India from time to time explained the nature and character of the concessions provided under the said Office Memorandums in the following terms :–
“17. We may now turn to the meaning and nature of the “concession” contained in the Office Memorandum dated March 26, 1970. We have already set out the significant features of the said concession contained in Para 2 of Office Memorandum in para 5 of this judgment. We shall now explain what exactly does the formula mentioned under (c) in paragraph 5 of our judgment mean? For the sake of convenience, we shall repeat the formula. “In promotions by selection to posts within Class-I…………
the Scheduled Castes/Scheduled Tribes Officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn up would be included in the list provided they are not considered unfit for promotion”. It is unnecessary to reiterate that the said Office Memorandum, does not provide for reservation as contemplated by Article 16(4) of the Constitution of India; it only provides for a concession which the State can always provide under Article 16 as explained in Indira Sawhney v. Union of India, . The concession is evidently designed and intended to help the Scheduled Castes/Scheduled Tribes officers obtain promotions which they may not otherwise get. Towards that purpose, it is provided that those Scheduled Castes/Scheduled Tribes officers who are senior enough in the zone of consideration so as to be within the number of vacancies available shall be included in the select list provided they are not considered unfit for promotion. The said formula has been explained with reference to an illustration in the letter dated November 6, 1983, referred to above. Be that as it may, we shall elaborate and explain it. Take a case where twenty vacancies arise which have to be filled by promotion by selection; according to the relevant rules, thrice the number of vacancies are to be considered – in other words, a list of sixty eligible candidates has to be prepared who alone will be considered for promotion to the said twenty posts, which list is but another name for “the zone of consideration” referred to in the Office Memorandum: (ordinarily, this list is prepared on the basis of seniority-cum-eligibility): if any Scheduled Castes/Scheduled Tribes officer happen to fall within Serial No. 1 to 20 in the said list, they shall be included in the select list without further ado. i.e., without subjecting them to the process of selection and without comparing their merit and grading with the merit and grading of the other officers within the zone of consideration. But for the said concession, it may be noted, these Scheduled Castes/Scheduled Tribes Officers may not get selected even though they may fall within Serial Nos. 1 to 20 in the zone of consideration for the reason that the candidates below Serial No. 20 mayhave a better record of service and grading than them. Since the promotion is on the basis of selection, the more meritorious (the officer having better grading) will get selected notwithstanding his position in the zone of consideration. It appears quite obvious that candidates belonging to Scheduled Castes/Scheduled Tribes were not getting selected by following the normal procedure of selection and hence, the said concession was provided. According to it, it is enough if a Scheduled Castes/Scheduled Tribes candidate comes within Serial Nos. 1 to 20 in the zone of consideration in the illustration given above. He would be automatically included in the select list, even though his grading on the basis of his record and performance may be fair inferior to the grading of the other officers below Serial No. 20 in the Zone of consideration provided, of course, such Scheduled Castes/Scheduled Tribes officer is not found unfit for promotion. So far as Scheduled Castes/Scheduled Tribes candidates below Serial No. 20 in the zone of consideration are concerned, they will, of course, be not entitled to any such concession and, therefore, have to compete with other candidates within the zone of consideration. It is equally clear that the O. C. candidates between Serial Nos. 1 to 20 in the zone of consideration will not be entitled to tile aforesaid concession; they will have to compete with all others in the zone of consideration (S. Nos. 1 to 60) for selection to the said vacancies. This, in short, is the concession, Since it is only a concession and not a reservation, the several letters of the Ministry of Finance referred to above, viz., letters dated May 30, 1981, November 7, 1983, March 25, 1987 and the clarificatory office memorandum dated November 1, 1990 repeatedly say that while there is no reservation for Scheduled Castes and Scheduled Tribes in this behalf (i.e. in the matter of promotion by selection to posts within Class-I) a concession is provided to them. It is because of this circumstance again that para 9.2 in the seventh condition of the Brochure on the subject of reservation for Scheduled Castes and Scheduled Tribes in services says that while there is no reservation, the Scheduled Castes/Scheduled Tribes candidates are entitled to the concession mentioned therein.”
6. Pursuant to the Office Memorandum and in the light of the Judgment of the Supreme Court in National Federation of S.B.I, (supra), the respondent No. 1 has circulated a promotion policy on 30th August, 1997 which inter alia prescribes eligibility criteria, passing marks for written test, marks for annual assessment reports, minimum qualifying standards for promotion, for inter-scale promotions from JMGS I to MMGS II and MMGS II to MMGS III. In the said promotion policy the term “zone of consideration” is defined as follows:
(1) The basis will be seniority list of officers as of 31st March of the relevant categorisation for the promotion Process. (2) The number of candidates would be minimum 3 times the number of vacancies. (3) If deemed necessary the zone of consideration would be modified by obtaining sanction of the Competent Authority, which presently, is the Board of Directors. 7. Clause III of the policy contains the provisions for reservation/concession for Scheduled Castes and Scheduled Tribes candidate and reads as follows: 1. There are no reservations for SC/ST Category in inter scale/grade promotions of officers on merit basis.
2. Scheduled Caste/Scheduled Tribe candidates who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has been drawn up, would be included in the list provided they are not considered unfit for promotion, ‘To illustrate, if 200 vacancies are to be filled in and 3 time the number of vacancies is considered as falling within the “zone of consideration”, then an SC/ST Officer whose seniority falls within the first 200 will be eligible for promotion provided that he is not found unfit for Promotion.” Fit for promotion would mean the candidate has secured minimum marks to quality for promotion i.e. aggregate marks under all weightages scored is minimum 45 out of 100 and the candidate is not disqualified for promotion.
3. SC/ST candidates will be provided pre-promotional training. We hasten to add that eligibility criteria is seven years service in MMGS I to MMGS II and five years service in case of MMGS II to MMGS HI.
8-9. In the instant case we are concerned with the promotions effected by the Bank in the year 1999. It seems that there were 213 vacancies for the promotional posts in MMGS II and 68 in MMGS III. The Bank has given effect to the policy of concession in the following manner. The number of vacancies, for promotional posts are 213. The general seniority list of Junior Management Grade Scale I which is the feeding cadre contains names of 2090 officers. Out of them 1389 were eligible candidates as they have completed prescribed years of service. According to the Bank, this list of 1389 is the zone of consideration. Thereafter the written and oral examinations were held by the Bank for which 886 out of 1389 were appeared and the merit list of candidates that is the candidates securing minimum 45 percentage of marks was prepared. Out of the list of 612 candidates who have secured the minimum 45 percent of marks only 213 are to be selected as there are only 213 vacancies. The bank has selected all the Scheduled Castes and Scheduled Tribes candidates who fall within number of vacancies within the zone of consideration. In other words those Scheduled Castes and Scheduled Tribes candidates who fall in the first 213 in the zone of consideration were included in the select list. The same method was followed in filling up 68 vacancies in MMGS III.
10-11. Mr. Gonsalves, learned Counsel appearing for the petitioners strenuously contended that the method adopted by the Bank in giving effect to the concession in the Office Memorandum is totally defective and contrary to the decision of the supreme court in the case of National Federation of S.B.I, (supra). He submitted that it is also contrary to the Banks own Circular dated 15th March, 1999. According to Mr. Gonsalves the zone of consideration and the merit list at the one and the same. In other words, the merit list prepared by the Bank of those who have passed the written and oral tests by obtaining minimum 45 percentage of marks would be the zone of consideration. He stated that the correct method to be followed is set out in Clause 6 of the Banks circular, which is as follows :
“All the employees eligible for promotion undergo a written test. Thereafter they are interviewed on the basis of their marks in the written tests, interview, confidential report and qualification marks and overall merit list is prepared. Thereafter the concession for SC/ST comes into play. The zone of consideration is three times the number of vacancies. Employees falling within the zone of consideration are then taken into account. The entire zone of consideration is then converted into a list based on seniority alone. Then SC/ST employees who in this list falling within the number of vacancies are put into a select list 1. The remaining employees from the zone of consideration are again rearranged according to their order of merit. From the order of vacancies those falling in the Select-1 are automatically promoted, the remaining vacancies are filled in from the order of merit.”
12. On the other hand Mr. Sakhare learned Counsel appearing for the Bank, submitted that the reliance placed on the Circular dated 15th March, 1999 is misconceived. The said circular contains inherent errors and the examples stated in the said circular are not in accordance with the rule of promotion enunciated in the promotion policy document dated 30th August, 1997 in respect of the promotion within Class I. He submitted that the interpretation sought to be given by Mr. Gonsalves to the terms “zone of consideration” is not correct. Zone of consideration is based on general seniority list and within this zone of consideration the merits of each candidate has to be judged by the written and the oral tests, He submitted that the Bank by its letter dated 2nd February, 1996 addressed to the Dy. Secretary, Ministry of Finance, Government of India sought clarification as regards interpretation of the concession applicable to Scheduled Castes and Scheduled Tribes candidates. The Government of India, Ministry of Finance, Department of Economics Affairs (Banking Division) vide communication dated 8th May, 1996 clarified that the zone of consideration is based on the general seniority list, it was stated in the said letter that within this zone of consideration the merit of each candidate is judged by interview/test and performance appraisal etc. and then a merit list is drawn up of all the candidates included in the zone of consideration and as per stipulation of para 9.2 (a) all Scheduled Castes/Scheduled Tribes candidates who are senior enough to be covered within the number of vacancies are to be selected for inclusion in the final select list provided they are not unfit for promotion. The said letter further clarifies that, “this means that out of the general seniority list the SC/ST candidates falling within the total number of vacancies declared shall be automatically selected provided they are not declared unfit”. By the said letter the interpretation put forward by the SC/ST Association was categorically rejected by the Union of India. The learned Counsel also relied upon a letter dated 3rd August, 2001 issued by the Indian Banks Association, wherein the Indian Banks Association has said “We are to clarify that “Zone of Consideration” for promotion by selection within officers cadre is meant to cover all officer Candidates who satisfy the prescribed eligibility criteria which has been laid down in the bank’s promotion policy for being considered for promotion to a particular cadre. It is the number of persons to be considered for promotion from one scale to another. For this purpose, it is the general seniority list in the feeder cadre which is to be considered in which are placed both the general and SC/ST candidates according to their inter-se seniority based on their date of entry to the feeder cadre”. The learned Counsel submitted that all the Nationalised Banks have followed the same method of implementing the concession as contained in Office Memorandum. He submitted that right from 1996 the Bank has followed the same method of promotion in Scale II and Scale III.
13. We have given our anxious thought to the submissions made by both the rival parties and we are of the considered view that the interpretation given by the Bank to the Office Memorandum seems to be correct. The sole object of giving concession to the Scheduled Castes and Scheduled Tribes employee is to improve their chances for selection to the higher category of posts in officers cadre. There is no reservation for Scheduled Castes and Scheduled Tribes and the office Memorandum merely gives an opportunity to the senior Scheduled Castes and Scheduled Tribes candidates who fall within the number of vacancies in the zone of consideration to improve their chances of promotion. If we accept the interpretation of Mr. Gonsalves it would mean that the merit list which contains the list of the candidates who have secured minimum marks will have to be first converted into a list based on seniority alone and then after putting the Scheduled Castes and Scheduled Tribes candidates who are falling within the number of vacancies into a select list, the said list will have to be again rearranged for the remaining candidates according to the order of merit. In our opinion, the conversion and reconversion of the merit list is not contemplated by the Office Memorandum though the circular of the Bank dated 15th March, 1999 indicates that this method is required to be followed in giving effect to the concession as per Office Memorandum. The Bank has clarified that the circular dated 15th March, 1999 was issued through inadvertence. Infact the position has been already clarified by the Union of India vide letter dated 8th May, 1996 wherein it is amply made clear that the zone of consideration is the seniority list. Mr. Karnik, learned Counsel appearing for the Union or India has fully supported the stand taken by the Bank. Mr. Gonsalves, however, submitted that at least two banks i.e. State Bank of India and Canara Bank have accepted the interpretation as suggested by the petitioners and their promotional policy shows that the zone of consideration is restricted only to those who have appeared for the written test and oral test and secured the minimum number of marks. Mr. Gonsalves submitted that the Supreme Court has observed that there is no distinction between zone of consideration and the select list/merit list and infact equated the zone of consideration with the select list. In our opinion, it is not possible to read example given in the Judgment of the Supreme Court in this fashion. It is seen that the Supreme Court has merely observed that “a list of sixty eligible candidates has to be prepared who alone will be considered for promotion to the said twenty posts, which list is but another name for “the zone of consideration” referred to in the Office Memorandum (Ordinarily, this list is prepared on the basis of seniority-cum-eligibility)”. In our opinion the observations on the other hand lend support to the stand taken by the Bank and the Union of India that the zone of consideration is nothing but the seniority list of the eligible candidates. Further, it is required to be noted that while giving the said example the Supreme Court was not considering the scope of zone of consideration in the list of the rules for the promotion which require securing minimum passing mark in oral and written tests. Thus for the purpose of giving effect to the concession as per the Office Memorandum the seniority list of eligible candidates is rightly recorded as the zone of consideration by the Bank and not the merit list of those who have secured minimum passing marks in the written test, etc. We do not find any illegality in the manner in which the Bank has given effect to the concession as per the Office Memorandum.
14.. In the result, in view of the foregoing discussion, Writ Petition is dismissed.
P. A. to give ordinary copy of this order to the parties, concerned.
15. Certified copy expedited.