WP/20541/1998 of L I C OF INDIA Vs 1. L I C OF INDIA REP BY on 29 December 2004

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.12.2004

CORAM

THE HONOURABLE MR.JUSTICE V. KANAGARAJ

WRIT PETITION No.20541 of 1998

Life Insurance Corporation of India, Schedule Castes andScheduled Tribes EmployeesWelfare Association, rep. byits General Secretary....PetitionerVs.1. Life Insurance Corporation of India, rep. by its Chairman, Central Office, Yogakshema, Mumbai-400 021.2. The Senior Divisional Manager, Life Insurance Corporation of India, L.I.C. Building, Anna Salai, Chennai-2.3. The Executive Director (Personnel), Central Office, Yogakshema, Mumbai-400 021....Respondents* * *Petition filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorari as statedtherein. * * *

* * *

The Life Insurance Corporation Scheduled Caste andScheduled Tribes Employees Welfare Association represented byits General Secretary has sought to issue a writ ofcertiorari to call for the records in Circular No.3850/ASP/98Dept. Personnel/ER/A dated 22.6.1998 on the file of the thirdrespondent herein and quash the same. By the said Circular,the relaxation given to the Scheduled Caste and ScheduledTribe employees in the minimum qualifying service forpromotion to the cadre of Higher Grade Assistants as threeyears has been withdrawn. The further grievance of thepetitioner association is that the respondents have notconsidered the candidates belonging to Scheduled Castes andScheduled Tribes who have put in three years of service andhence the writ petition.

2. The pleadings of the petitioner association is thatthe petitioner is a registered Association established forthe welfare and protection of the interests of ScheduledCastes and Scheduled Tribes employed in the Life InsuranceCorporation of India. The Life Insurance Corporation, beinga statutory corporation established under the Life InsuranceCorporation of India Act, 1956 and being a part of 'State' asdefined under Article 12 of the Constitution of India, isunder a Constitutional obligation to provide for reservationfor the Scheduled Caste and Scheduled Tribe employees both atthe recruitment level as well as by way of promotion. It issubmitted that from the post of Assistants/Typists, there isa next cadre, viz. Higher Grade Assistant and thequalification prescribed for the post of Higher GradeAssistant/Typist is provided in the Instructions forimplementation of the Life Insurance Corporation of IndiaClass-III and Class-IV Employees Promotion Rules, 1987 asfollows :

Higher Grade Section HeadsAssistants Stenographers Assistants and (a) Section Heads or (b) 5 years service in the scale of all other in the scale of employees in the Assistants and a scale of Section pass in the Heads or Assistants Departmental test or on acquiring the prescribed qualifications or(c) 10 years service in the scale of Assistants.

Higher Grade Stenographers 5 years serviceAssistants as Stenographers(Stenographers)It is provided in the Rules that for the purpose ofpromotion, what is required is five years service in thescale of Assistants and a pass in the Departmental test oracquiring prescribed technical qualification or ten yearsservice in the scale of Assistants or Section Heads and theselection procedure prescribed is written examinationfollowed by oral interview; that Assistants/Typists who havepassed the departmental test in the past will not be requiredto pass the departmental test again for promotion to the saidcadre and that means, once an Assistant has passed thedepartmental test for the post of Higher Grade Assistant, heis eligible to be included in the panel for the post ofHigher Grade Assistants; that as per Class-IV of theinstructions for promotion to Higher Grade Assistants, thepreparation of the panel is to be done as provided below:"6.(i) there shall be prepared a panel of alleligible employees in the order of total marksobtained on the basis of criteria of selectionspecified in Rule No.5.

(ii) out of the panel prepared in accordancewith sub-rule (1), all the candidates in the orderof merit equal to 5 times the number of vacancies

may be called for interview by the PromotionCommittee."

Under Rule 5 of the Promotion Rules, the conditions ofeligibility and criteria for selection is provided as follows:

"(i) The categories of employees eligible forpromotion to various cadres, their conditions ofeligibility for promotion and criteria for theirselection shall be as specified in the Schedule.(ii) Notwithstanding anything contained insub-rule (i), the Chairman may direct that anemployee who has excelled in any field of sportsor athletics at the national or internationallevel or has received any national orinternational award in any cultural, literary orscientific activity, may be promoted to the nexthigher cadres."3.It is further submitted that every year, therespondent Corporation prepares the panels for promotion toHigher Grade Assistants from the post of Assistants/Typists;that the candidates who have passed the departmental test areeligible to be included for the panel for promotion to beselected by the Promotion Committee on interview; that in theyear 1998, the Corporation issued a notification on 9.12.1998notifying promotion of 40 candidates to the Chennai Division-I and Zonal Office, Chennai including Zonal Training Centre,Chennai and Internal Audit Department, South Zone, Chennai;that as per the said notification, the panel of candidates tobe interviewed before the Promotion Committee was preparedand call letters for the said interview were issued on15.12.1998, but for reasons best known to them, theCorporation did not include the names of such of thoseScheduled Caste and Scheduled Tribe employees who had passedthe departmental tests earlier in the said panel.

4. It is further submitted that in the year 1990, thefirst respondent had issued an order relaxing the minimumqualifying service in respect of the Scheduled Caste andScheduled Tribe employees for promotion to the cadre ofHigher Grade Assistants from five years to three years; thathowever, since the said relaxation was arbitrarily donewithout any jurisdiction, it was withdrawn by the second

respondent by his order dated 22.6.1998; that based on theorder dated 22.6.1998, the respondents had rejected theclaims of those Scheduled Caste and Scheduled Tribe employeeswho have qualified with the three years qualifications andhaving passed the departmental test and did not call forinterview such of those Scheduled Caste and Scheduled Tribeemployees who have the three years service and have alsopassed the departmental tests; that the Circular dated22.6.1998 is challenged in this writ petition.

5. It is also contended on behalf of the petitionerAssociation that the impugned order was passed by theExecutive Director of the Corporation, whereas under Rule 8of the Rules, only the Chairman has the jurisdiction and theauthority to withdraw the relaxation granted by him and assuch, the impugned order is without jurisdiction.

6. In the counter affidavit, the respondents wouldsubmit that the respondents have followed the instructionscontained in the office Memo. dated 22.2.1997; that eventhough it is permissible to prescribe reasonably qualifyingmarks or valuation for SCs/STs consistent with the efficiencyof the administration and the nature of duties attached tothe office concerned in the matter of direct recruitment andthe same is not permissible in the matter of promotion; thatwith regard tot he relaxation of service, the Chairman hasthe power (with certain restrictions) by a specialinstruction to relax the rule in the case of employeesbelonging to the SC/ST employees; that as far as personneland administrative matters are concerned, the ExecutiveDirector is also empowered on behalf of the Chairman to issueinstructions; that the petitioners contention that 22 SC/STcandidates who have passed the departmental test in 1997 havenot been selected for promotion is only as a result of thewithdrawal of the concessions as per the impugned circulardated 22.6.1998 and not for any other reason. On suchaverments, the respondents would seek to dismiss the abovewrit petition.

7. During arguments, the learned counsel appearing onbehalf of the petitioner association would cite item No.1 (v)of the impugned order relating to relaxation in the minimumqualifying service for promotion to the cadres of HGA (Admn.)

and AAO wherein it is stipulated:

"Instructions issued by the Chairmanfrom time to time in exercise of thepowers vested in him under Rule (8) ofthe Promotion Rules 87."

The learned counsel would also cite paragraph 4 of theimpugned order dated 22.6.1998:

"AccordingtotheGovt.O.M.No.36012/23/96-Estt(Res.)Dated22.2.1997 (Copy enclosed) conveyingthe above decision of the Govt.henceforth there shall be no separatestandards of evaluation for candidatesof SC/ST for promotion and assessmentof all candidates for this purposewill be with reference to uniformstandard. Any instruction whichprovidesforlowerqualifyingmarks/lesser standard of evaluation inthe matter of promotion for candidatesbelonging to SC/ST may therefore haveto be treated as having been modifiedto this extent."

In paragraph 5 of the impugned order, it is further averredas follows; "In view of the Govt. orders, theChairman has reviewed the position andhas decided that all instruction issuedby us which provide for lower qualifyingmarks/less standard of evaluation in thematter of promotion of candidatesbelonging to SC/ST mentioned in (1) abovewill stand withdrawn with immediateeffect."

8. Citing the above relevant paragraphs from theimpugned order passed by the Executrive Director (Personnel)dated 22.6.1998,the learned counsel would submit that the

question involved is fixation of lower qualifying marks andlesser standard of evaluation for candidates of SC/ST forpromotion and assessment of all the candidates for thispurpose with reference to uniform standard.

9. The learned counsel would point out that thisnotification has taken away clause (ii) and (iv) in paragraph1. The learned counsel would also point out that thiscircular has been issued in violation of Article 16 (4)(A)of the proviso to Article 335 of the Constitution of Indiaand allegedly following the judgment of the HonourableSupreme Court reported in 1996 (8) Judgment Today (SupremeCourt)page 643 (S.Vinod kumar and another Vs. Union of Indiaand others 643). In the said judgment, the Honourable ApexCourt, while clarifying its earlier judgment in INDIRASAWHNEY ETC. V. UNION OF INDIA AND OTHERS reported in 1992(6)SC 273 = 1992 Suppl.(3) SCC 215 has held:

"... so far as the provision forlower qualifying marks or lesser level ofevaluation in the matter of promotion isconcerned, it is not permissible underArticle 16(4) in view of the commandcontained in Article 335 of theConstitution. In other words, even if itis assumed for the sake of argument thatreservation is permitted by Article 16(4)in the matter of promotions, a provisionfor lower qualifying marks or lesserlevel of evaluation is not permissible inthe matter of promotions, by virtue ofArticle 335. If so, there can be noquestion of such a provision or"concession", as it is called by theTribunal, being saved by the declarationin Para 829 of the said judgment."

10. The learned counsel continuing his argument wouldsubmit that subsequently the Parliament enacted Article 335by 82[nd] amendment dated 8.9.2000 and would cite the memorandumdated 3.10.2000 and would conclude his argument saying thatthe respondents are bound to act in accordance with thememorandum.

11. On the contrary, on the part of the learned counselappearing for the respondents would cite paragraph 13 of theimpugned order and would say that the reservation inpromotion in favour of SC/ST candidates will continue. Thelearned counsel would further point out that the amendment toArticle 335 comes into operation only on 8.9.2000 whereas theinterview commenced on 15.12.1998 and citing para 14 of thewrit petition, the learned counsel would say that it is inviolation of the proviso to Article 335 of the Constitution.The learned counsel would end up his argument after the 82[nd]amendment to the Constitution having gone under water andwould pray to dismiss the above writ petition.

12. In consideration of the facts pleaded having regardto the materials placed on record and upon hearing thelearned counsel for both it could be assessed that thepetitioner association seeking to quash the circular dated22.6.1998 issued by the Executrive Director (Personnel)thereby offering instructions or making provisions to theLife Insurance Corporation of India Clause III and Clause IVEmployees Promotion Rules, 1987 thereby providing to thelower qualifying marks lesser standard of evaluation infavour of SC/ST candidates. According to the petitionerAssociation, the executive order is contrary to the statutoryrules framed under the L.I.C. of India Act, 1956 and the LifeInsurance Corporation of India, Clause III and Clause IVEmployees Promotion Rules. It is the further contention ofthe petitioner Association that the said order is withoutjurisdiction and the same is contrary to the spirit ofreservation policy and is designed in defeating the veryconstitutional obligation. The petitioner Association wouldfurther point out that the subject was considered by the HighCourt of Rajasthan which refused to strike down therelaxation made available under Section 8 of the saidPromotion Rules. It would be further argued that therelaxation of the memorandum of qualifying service for theScheduled Caste/Scheduled Tribe employees for promotion, thepost of higher grade assistant is a constitutional right andit cannot be withdrawn by the respondents much less withoutan opportunity for the members of the petitioners associationheld and therefore the impugned order is also contrary to theprinciples of natural justice. The further contention of the petitioner Association is that while it is the Chairman underRule 8 of the Rules, who could exercise jurisdiction andauthority to withdraw the relaxation granted by himself andas such the impugned order passed by the Executive Director(Personnel) of the Life Insurance Corporation of India iswithout jurisdiction and at this score also, the impugnedorder is liable to be quashed.

13. On a perusal of the materials placed on record, itcomes to be known that subsequent to the filing of this writpetition, the Government has brought in 82nd Amendment to theConstitution of India thereby incorporating a proviso toArticle 335 which reads as follows:

"Provided that nothing in this Article shallprevent in making of any provision in favour of themembers of the scheduled Castes and ScheduledTribes for relaxation in qualifying marks in anyexamination or lowering the standards ofevaluation, for reservation in matters of promotionto any class or classes of services or posts inconnection with the affairs of the Union of aState."

14. In pursuance of the said enabling proviso of Article335 of the Constitution, the Government has issuedO.M.No.36012/23/96-Estt. (Res.) Vol.II, dated 3.10.2000,therebyrestoring,withimmediateeffects,therelaxations/concessions in matters of promotion forcandidates belonging to Scs/STs by way of lower qualifyingmarks, lesser standards of evaluation that existed prior to22.7.1997. In other words, the effect of these instructionswould be that the Department of Personnel and Training'sO.M.No.36012/23/96-Estt. (Res), dated 22nd July, 1997 becameinoperative from the date of issue of the said O.M. Sincethe impugned order dated 22.6.1998 was issued by therespondents following the orders of the Government of Indiain O.M.No.36012/23/96-Estt (Res.) dated 22.2.1997 which hasbecome inoperative now, pursuant to the 82nd Amendment of theConstitution of India, nothing survives in the above writpetition and the same becomes liable only to be dismissed asinfructuous.

In result, the above writ petition is dismissed asinfructous.

No costs.gs/ks/Rao

Sd/Asst.Registrar

/true copy/Sub Asst.RegistrarTo1. The Chairman, Life Insurance Corporation of India, Central Office, Yogakshema, Mumbai-400 021.2. The Senior Divisional Manager, Life Insurance Corporation of India, L.I.C. Building, Anna Salai, Chennai-2.3. The Executive Director (Personnel), Central Office, Yogakshema, Mumbai-400 021.+ 1 CC to Mr. M. Jegadeesan, Advocate (SR NO 58215)+ 1 CC to Mr. K. Shanmugakani, Advocate (SR NO 58048) Order in W.P. No.20541 of 1998Delivered on29.12.2004

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