JUDGMENT
N.V. Balasubramanian, J.
1. The question that arises in the writ appeal is whether there should be reservation as found in Article 335 of the Constitution of India in the Nationalised Bank for the post of special assistants. The learned single Judge who heard the matter along with other three writ petitions dismissed the claim of the reservation made by the appellant/writ-petitioner, and against the said order, the present writ appeal has been preferred.
2. We heard Sri Anantharaju, learned counsel for the appellant and Sri Sampathkumar, learned counsel for the respondents.
3. The submission of Sri Anantharaju, learned counsel for the appellant is that the post of special assistant is a selection post and the reservation under Article 335 of the Constitution of India should be made available for the selection to the post of special assistants. Learned counsel also submitted that a member from the scheduled caste community should also be included in panel for selection. His main submission is that the respondent- bank has failed to follow the rule of reservation. Learned counsel referred to the affidavit filed in support of the writ petition and submitted that the Government of India had already issued instructions whereby the reservation is made compulsory and there shall be reservation in the selection of candidates to fill up the posts of special assistants and the selection made without the application of the rule of reservation is unconstitutional. Learned counsel strongly relied upon the decision of the Supreme Court in the case of Syndicate Bank SC and ST Employees Association v. Union of India, 1990 (Supp) SCC 350 : 1990-II-LLJ-354, and submitted that the benefit of the reservation policy to members of SC and ST cannot be denied on the ground that promotional posts are to be filled by method of selection. Learned counsel also referred to the decision of the Supreme Court in Indra Sawhney v. Union of India, and submitted that the reservation for appointment can be made by way of executive order. Learned counsel referred to the concluding paragraph, viz., Para. 700 of the said judgment and submitted that this Court is constitutionally obliged to exercise the power of judicial review and interfere in the matter of selection to the post of special assistants as the reservation policy has not been followed by the respondent-bank. Learned counsel also referred to the Thirty Seventh report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes (1982-83) and submitted that though the Committee has recommended in the year 1982-83 that the post of special assistants should be treated as a promotional post and taken out of the clerical cadre, the Government of India has not implemented the recommendation of the said Committee.
4. Sri Sampathkumar, learned counsel for the respondents, on the other hand, submitted that the post of special assistants is not a promotional post and only special allowance is given to special assistants but they continue to be in clerical cadre. According to the learned counsel, since there is neither promotion, nor selection, the rule of reservation is not applicable. Learned counsel submitted that the persons working in clerical cadre are required to perform certain special functions and on the basis of bipartite settlements, the persons working in clerical cadre are required to shoulder some higher responsibility for which they are given special allowance. Learned counsel submitted that there is no question of any selection involved in the appointment of special assistants and therefore, the rule of reservation is not applicable.
5. We have carefully considered the submissions of the learned counsel for the appellant and the learned counsel for the respondents. There can be no quarrel over the proposition of law that the benefit of reservation policy to the members of SC/ST community cannot be denied on the ground that promotional posts are to be filled by method of selection, and it is open to make reservation for appointment by way of executive order. The Government of India by letter No. F. No. 10/72/8 6-SCT(B), dated November 28, 1986, addressed to all the nationalised banks clarified the position in regard to reservations for SC/ST in promotions. In the said letter the Government of India has directed all nationalised banks to apply the rule of reservation for promotional posts also.
6. As already observed, it is open to the Government to apply the rule of reservation by executive order. But, the main question that arises is whether the post of special assistant is a selection post or a promotional post. There was a bipartite settlement between the respondent-bank and the labour unions and under the bipartite settlement it was agreed that certain special allowances should be granted to those persons who are performing the functions of a special assistant. The bipartite settlement also shows that the persons working as special assistants shall continue to be in clerical cadre and the common seniority in the clerical cadre is not disturbed even though they are required to perform the functions of a special assistant. To consider the question raised in the writ appeal, the nomenclature of the post is not material and what is relevant is whether the posts of special assistants form a separate cadre from the clerical cadre in the nationalised bank. We find notwithstanding the special functions required to be performed by special assistants, the persons continue to be in clerical cadre and there is no selection process involved as in the case of promotion from one cadre to another cadre. It is also not a case of promotion.
7. We are of the view that promotion means a transposition of employees from lower cadre to higher cadre involving higher scale of pay. Since special assistants continue to be in clerical cadre, there is no promotion from the lower cadre to higher cadre, and therefore it cannot be stated that there is a promotion when clerical assistants are required to perform the duties of special assistants for which they are paid certain special allowance. As a matter of fact, the Committee on the Welfare of Scheduled Castes and Scheduled Tribes, in its 37th Report of the year 1982-83. after noticing the duties of special assistants, also found that special assistants are included in clerical cadre and only certain special allowance has been attached to the said post. According to the said Committee, clerks who have completed six years of service are entrusted with the duties of special assistants and the post is not a promotional post. We are of the view that since the cadre continues to be the same, the rule of reservation does not apply.
8. Sri S. PADMANABHAN, J., in W.P. No. 55 of 1981 has considered a similar question in the case of appointment of a head cashier and the learned Judge, by the judgment, dated July 16, 1982, held that the category of head cashier is not a promotional post or a selection post and the rule of reservation is not applicable even though the head cashier is entitled to some additional allowance. Learned Judge held that when an employee is doing the duties which attract a functional special allowance under bipartite settlements, the said employee shall continue to be in the clerical or subordinate cadre and he does not cease to be in the clerical cadre because he is asked to perform the special functions of a head cashier which carries functional special allowance. We approve the view of the learned single Judge rendered in W.P. No. 55 of 1981 and the ratio of the decision of the learned single Judge would squarely apply in the case of special assistants. Therefore, the special assistants continue to be in the clerical cadre and they are granted certain special allowance, but it is neither promotional post nor a selection post and hence the rule of reservation does not apply. In this view of the matter, we confirm the judgment of the learned single Judge impugned in the writ appeal and dismiss the writ appeal
9. Though we dismiss the writ appeal, we find that the Committee on the Welfare of Scheduled Castes and Scheduled Tribes in its 37th Report of the year 1982-83 has directed the nationalised banks to take the post of special assistants out of the clerical cadre and treat the same as a promotional post. The committee also felt that out of special assistants, there was only one who belongs to scheduled caste community in the year 1982. The committee therefore recommended that a representative of the employees belonging to scheduled caste. scheduled tribe organisation should be associated in all such negotiations with the employees’ unions. The said recommendation was made in the year 1982-83 and it is stated by the learned counsel for the appellant that the said recommendation has not been implemented till date. We also find that the Chairman of the respondent-bank as well as the representative of the Ministry of Finance has assured before the committee that when the bipartite agreement entered into between the banking industry and the employees’ unions comes to an end and when a new agreement is signed, the rule of reservation would be applied. We are surprised to find that even after a period of 19 years, neither the Government of India, nor the banking industry has taken any concrete steps to create a special cadre for special assistants. Hence, we direct the Registrar-General of this Court to forward a copy of the judgment to the Secretary, Department of Banking, Ministry of Finance, North Block, New Delhi, requiring him to take steps to implement the 37th Report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes of the year 1982-83 in the matter of creating a new cadre of special assistants in nationalised banks as early as possible.
10. With the above observations, the writ appeal stands dismissed. No costs.