P & T SCHEDULED CASTE/TRIBE EMPLOYEES' WELFARE ASSOCIATION (REGD.) & ORS.versusUNION OF INDIA & ORS.

                                                                              A
       P & T SCHEDULED CASTE/TRIBE EMPLOYEES'
          WELFARE ASSOCIATION (REGD.) & ORS.
                                     v.
                     UNION OF INDIA & ORS.
                                                                              B
                           AUGUST 29, 1988

        [E.S. VENKATARAMIAH, S. NATARAJAN AND
                     N.D. OJHA, JJ.]

      Constitution of India, 1950: Articles 16, 330, 332, 334 and 335-
Promotion posts in P & T department-Reservation for Scheduled
                                                                              c
Caste, Scheduled Tribe employees-Advantage enjoyed lost in the New
Scheme of 1983-Scheduled Casie, Scheduled Tribe employees of other
departments continue to enjoy the advantage-Government directed to
confer ·similar advantage to Scheduled Caste, Scheduled Tribe
employees of Post and Telegraph Department.                                   D

      Civil Services-P & T department-Promotion-Re~·ervation of
vacancies for SC, ST employees-New Scheme, 1983-Al/ employees to
get promotion after 16 years-Advantage of SC, ST employees getting
promotion within a shorter period lost-Govt. directed to issue order
conferring the additional advantage on SC, ST employees in P & T              E
department, as are enjoyed by SC, ST employees in other departments.

      In supersession of its earlier order issued in 1968, the Union
Government communicated in 1972 its policy regarding reservations
for the Scheduled Castes and the Scheduled Tribes in posts filled by promo-
tion on the basis of seniority subject to fitness. Whenever such promo-       F
tions were to be made in appointments to Class-I, Class-II, Class-III
and Class-IV posts in grades or services in which the element of direct
recruitment, if any, did not exceed SO per cent, lS per cent and 7'h per
cent of the vacancies were to be reserved for SCs and STs respectively.
Detailed instructions were issued to the appointing authorities to make
promotions accordingly so that the SCs and STs could have an                  G
advantage of getting promotion to a higher grade much earlier than the
others.

      In 1974, further instructions were issued with regard to reserva·
tion of Scheduled Castes and Scheduled Tribes in posts filled by promo·
!Ions/appointments to Selection Grade Posts directing reservation of IS       H
                                    623
    624         SUPREME COURT REPORTS                I!988] Supp. 2 S.C.R.

A per cent/71/i percent of the vacancies for SCs/STs.

          In the Posts and Telegraphs Department, the aforesaid policy
    continned till 1983 when an agreement was arrived at between the
    Ministry of Communications and certain associations of Post and Tele-
    graphs employees, and a fresh order relating to the policy of promotion
B   to he adopted in the P & T Department was issued in supersession of the
    scheme of reservation followed till then. Under the policy, all officials
    belonging to basic grades in Group C and Group D to which there was
    direct recruitment either from outside and/or by means of limited com-
    petitive examination from lower cadres and who had completed 16
    years of service in that grade would be placed in the next higher grade.
C   Whether an employee belonged to general category or to the category
    of SCs and STs, he would get his promotion on the completion of 16
    years' service. Under the pr.,·ious scheme it was possible for the SC and
    ST employees to secure promotion within a period of IO to 12 years,
    while the other employees had to wait for nearly 20 to 23 years. Thus,
    the comparative advantage enjoyed by employees belonging to SCs and
D   STs was take11 away. No specific order was issued by the Government
    regarding reservation for SCs and STs, though clause 6 of the new
    scheme provided for it. But the earlier orders providing for reservation
    for SCs and STs were made inapplicable. Aggrieved by the new policy,
    which deprived the SC and ST employees of the advantage which they
    were enjoying, the petitioners approached this Court by way of the
E   present writ petition.

         Petitioners prayed for a direction to the Govt. of India for issuing
    an order under clause 6 of the new scheme conferring such additional
    advantage to them as are enjoyed by SC and ST employees in other
    departments.
F
         The Respondent contended that the new scheme was advanta-
    geous to all the employees since all of them would get automatic promo-
    tion after con1pleting 16 years of service in.a cadre and that it was done
    with the consent of the Federations of Employees of the P & T
    Department.
G
          Allowing the writ petition,

       HELD: I. The advantage of promotion within a shorter period is
  being enjoyed by persons 'belonging to the Scheduled Castes and t•·ie
  Scheduled Tribes in other Departments and only the petitioners have
H been deprived of it. Such deprivation violates the equality clause of the
                        P & T EMPLOYEES ASSN. v. U.0.1.                    625

    Constitution. While it may be true that no writ can be issued ordinarily
                                                                                  A
    compelling the Government to make reservation under Article 16(4)
    which is only an enabling clause, the circumstances in which the mem-
    bers belonging to the Scheduled Castes and Scheduled Tribes in the
    Posts and Telegraphs Department are deprived of indirectly, the
    advantage of ·such reservation which they. were enjoying earlier, while
    others who are similarly situated in the other departments are allowed        B
    to enjoy it, make the action of Government discriminatory and invite
    intervention by this Court. [629G-H; 630A-B]

          2. One of the methods by which the Government can confer some
    extra advantage on the employee_s belonging to the Scheduled Castes
    and the Scheduled Tribes iu cases of this nature where promotion to
    higher cadre is a time-bound one is to direct that the employees belong-
                                                                                  c
    ing to the Scheduled Castes and the Scheduled Tribes may be promoted
    to the higher cadre on completion of a shorter period of service than
    what is ·prescribed for others. In this particular case it is open to the
    Government to direct that while all others would be entitled to be
    promoted to the higher cadre on completition of 16 years of service, the      D
    members belonging to the Scheduled Castes and the Scheduled Tribes
    may be promoted to the higher cadre on completion of, say 12 or 13
    years of service. There may be other methods of achieving the same
    result. In what way it should be done is a matter left to the discretion of
    the Government. This should be decided by the Government taking into
    consideration all aspects of the case. [630B-F]                               E

           3. The Government of India shall within four months issue an
    order under clause 6 of the letter dated 23. l 1. I983 confert;jng some
    additional advantage on the employees belonging to the Scheduled
    Castes and the Scheduled Tribes in the Posis & Telegraphs Department
]   commensurate with similar advantages which are being enjoyed by the           F
    employees belonging to the Scheduled Castes and the Scheduled Tribes
    in the other departments. Any order that may be issued by the Govern·
    ment shall operate prospectively. All promotions that have been made
    so far pursuant to the policy contained in the letter dated 23.12.1983
    and that may be made hereafter till the date on which the direction to he
    issued by the Government under clause 6 comes into operation, shall           G
     however, ramain undisturbed. [630F-H; 631A]

         ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 1003-
    1005 of 1984.

          (Under Article 32 of the Constitution of India).                        H
     626         SUPREME COURT REPORTS                 [1988] Supp. 2 S.C.R.

           R.K. Garg, Pankaj Katra and P.K. Jain for the Petitioners.
A
          V.C. Mahajan, Ms. A. Subhashini, C.V. Subba Rao, Grish
     Chander, S.K. Mehta, Dhruv Mehta, Aman Vachher, S.M. Sarin and
     Jagannath Goulay (N.P.) for the Respondents.

a          The Judgments of the Court was delivered by

            VENKATARAMIAH, J. People belonging to the Scheduled
     Castes and the Scheduled Tribes and to other weaker sections of
     society in India are the zealously protected children of the Indian
     Constitution. Article 46 of the Constitution provides that the State
C    shall promote with special care the educational and economic interests
     of the weaker sections of the people, and, in particular, of the
     Scheduled Castes and the Scheduled Tribes, and shall protect them
     from social injustice and all forms of exploitation. While clause (1) of
     Article 15 of the Constitution provides that the State shall not discri··
     minate against any citizen on grounds only of religion, race, caste, sex,
D    place of birth or any of them, clause (4) of that Article provides that
     nothing in the said Article or in clause (2) of Article 29 of the Constitu-
     tion shall prevent the State from making any special provision for the
     advancement of any socially and educationally backward classes of
     citizens or for the Schedule Castes and the Scheduled Tribes. Simi-
     larly, while clause (1) of Article 16 of the Constitution provides that
E    there shall be equality of opportunity for all citizens in matters relating
     to employment or appoiniment to any office under the State and
     clause (2) of the said Article provides that no citizen shall, on grounds
     only of re¥gion, race, caste, sex, descent, place of birth, residence or
     any of them, be ineligible for, or discriminated against in respect of
     any employment or office untler the State, clause (4) of the said Arti-
f'   cle provides that nothing in that Article shall prevent the State from
     making any provision for the reservation of appointments or posts in
     favour of any backward class of citizens which, in the opinion of the
     State, is not adequately represented in the services under the State.
     Article 330 and Article 332 of the Constitution provide for reservation
     of seats for the Scheduled Castes and the Scheduled Tribes in the Lok
G    Sabha and in the Legislative Assemblies of the States till such period
     as is provided in Article 334 of the Constitution. Article 335 of the
     Constitution, which is relevant for purposes of this case, provides that
     the claims of the members of the Scheduled Castes and the Scheduled
     Tribes shall be taken into consideration, consistently with the main-
     tenance of efficiency of administration, in the making of appointments
H    to services and posts in connection with the affairs of the Union or of a
     State.
                                                  -
           P & T EMPLOYEES ASSN. v. U.0.1. [VENKATARAMIAH, J.]          627

             The present case is, however, one in which a concession which A
     had been extended to the employees belonging to the Scheduled
     Castes and the Scheduled Tribes by way of reservation of vacancies at
     the stage of promotion has been withdrawn in a rather concealed way.
     Petitioners 1 and 2 in this Writ Petition are the P & T Scheduled
     Caste/Tribe Employees' Welfare Assocation (Regd.) Delhi and the
     Federatioff of all India Scheduled Castes & Scheduled Tribes B
     Employees P & T Department, New Delhi and Petitioner 3 is an
     employee in the Posts & Telegraphs Department. By the Jetter bearing
     No. 27/2/71-Estt. (SCT) dated 27.1L1972 issued by the Department of
     Personnel, the Government communicated its policy regarding the
     reservations for the Scheduled Castes and the Scheduled Tribes in
     posts filled by promotion/promotions on the basis of seniority subject C
     to fitness. The said policy was.adopted by the Government in superses-
     sion of the orders contained in an earlier Government Order dated
      11. 7. 1968. Under the said policy a reservation of 15 per cent of vacan-
     cies was made for the Scheduled Castes and 7-1/2 per cent for the
     Scheduled Tribes wherever promotions were to be made on the basis
     of seniority subject to fitness, in appointments to all Class I, Class II, D
     Class III and Class IV posts in grades or services in which the element
     of direct recruitment, if any, did not exceed 50 per cent. In order to
     implement the above reservation the Government directed the
    .appointing authorities to maintain a separate 40-point roster to
     determine the number of reserved vacancies in a year in which points 1,
     8, 14, 22, 28 & 36 had to be reserved for the Scheduled Castes and E
     points 4, 17 and 31 had to be reserved for the Scheduled Tribes.
     Detailed instructions were issued to the appointing authorities to make
     promotions in accordance with the directions contained therein so that
     members belonging to the Scheduled Castes and the Scheduled
     Tribes could have an advantage of getting promotion to a higher
     cadre much earlier than the employees who did not belong to the F
     Scheduled Castes and the Scheduled Tribes. By the letter of the
     Department of Personnel & Administrative Reforms bearing O.M.
     No. 8/11/73-Estt. (SCT) dated 12.9.1974 addressed to all the Ministries
     further instructions were issued with regard to the reservation of the
,    Scheduled Castes and the Scheduled Tribes in posts filled by pro-
     motions/appointments to Selection Grade posts directing reservation G
     of 15 per cent of vacancies for Scheduled Castes and 7-1/2 per cent for
     Scheduled Tribes. As regards the Posts & Telegraphs employees work-
     ing under the P & T Board, the Ministry of ~ommunications by its
     letter No. 31-19/74-PE-l dated 15.6.1974 gave.certain further direc-
     tions with regard to the filling-up of. posts by promotion conferring
     certain other advantages on persons' belonging to the Scheduled Castes H
                            ...
    628         SUPREME COURT REPORTS               I 1988] Supp. 2 S.C.R.
    and the Scheduled Tribes. The policy of reservation contained in the
A
    above three Government letters was continued till the year 1983 in the
    Post & Telegraphs Department. It would appear that in the year 1983
    an agreement was arrived at between the Ministry of Communications
    and certain associations of employees .working in the Posts & Tele-
    graphs Department and as a con·seq uence of the 'said agreement a fresh
B   order relating to the policy of promotion to be adopted· in the Posts &
    Telegraphs Department was issued in supersession of the scheme of
    reservation, which was being followed till then. The said New policy,
    the validity of which is challenged before us, is contained in the letter
    bearing No. 31-26/83-PE-I dated 17.12.1983 addressed to all heads of
    circles. Under this new policy it was decided that with effect from
C   30.11.1983 all officials belonging to basic grades in Group C and
    Group D to which there was direct recruitment either from outside
    and/or by means of limited competitive examination from lower
    cadres, and who had completed 16 years of service in that grade would
    be placed in the next higher grade. This policy, it is alleged, was
    introduced in order to remove the effects of stagnation of employees in
D   a particular grade for nearly 20 to 23 years without being promoted to
    higher grade. It would appear that under the scheme which was pre-
    vailing prior to 30.11.1983 it was possible for members belonging to
    the Scheduled Castes and the Scheduled Tribes to secure promotion to
    the higher cadre within a period of 10 to 12 years while the other
    employees had to wait for nearly 20 to 23 years. Thus an advantage
E   had been conferred on the employees belonging to the Scheduled
    Castes and the Scheduled Tribes since they could secure promotion
    within a shorter period. Under the new policy irrespective of the fact
    whether an employee belonged to the general category or to the cate-
    gory of the Scheduled Castes and the Scheduled Tribes he would be
    able to get promotion tci the higher cadre on the completion of 16
F   years. Thereby the comparative advantage which the members belong-
    ing to the Scheduled Castes and the Scheduled Tribes were enjoying
    was taken away and all the employees, namley, the employees belong-
    ing to the Scheduled Castes, the Scheduled Tribes and to the other
    categories were placed at par. However, clause 6 of the said letter
    dated 17.12.1983 which contained the new policy reads thus:
G

                "6. For promotions under the time-bound one promotion
                scheme the normal orders relating to reservation for SC/ST
                communities will not apply unless any specific order in this
                regard is subsequently issued."
H
       P & T EMPLOYEES ASSN. v. U.0.1. lVENKATARAMIAH, J.]           629

        It is admitted that no specific order has been issued by the A
  Government pursuant to clause 6 so far. But the earlier orders provid-
  ing for reservation in favour of the Scheduled Castes and the
·Scheduled Tribes were made inapplicable. Aggrieved by the action
  taken by the Government in implementing the policy contained in
  letter dated 23.12.1983, which had the effect of depriving the members
  belonging to the Scheduled Castes and the Scheduled Tribes of the B
  advantage which they were enjoying, the petitioners have filed this
  petition questioning the said action. The petition is resisted by the
 ·respondents. It is urged on behalf of the Government that the 'time-
  bound one promotion scheme' contained in the letter dated 23. 12.83
  was advantageous to all the employees since all of them would get
   automatically promoted to a higher cadre on completing 16 years of
  service in a cadre and that it had been issued with the consent of the C
  Federations of Employees of the Posts & Telegraphs Department.

       It is not disputed that in many of the other departments of the
 Union Government the scheme of reservation of posts for the
 Scheduled Castes and the Scheduled Tribes is in vogue in cases of          D
 promotions from the lower grades to the higher grades when they are
 done on the basis of seniority subject to fitness and under the said
 policy the persons belonging to the Scheduled Castes and the
 Scheduled Tribes working in the other departments have been con-
 ferred an extra advantage which was not available to the candidates
 belonging to other categories and that .in the Posts & Telegraphs          E
 Department also the employees belonging to the Scheduled Castes and
 the Scheduled Tribes were enjoying a similar advantage before
 30.11.1983 on which date the policy contained in the letter dated
 23.12.1983 came into force. Even the letter dated 23.12.1983 while it
 sets at naught the normal orders relating to reservation for the
 Scheduled Castes and the Scheduled Tribes in the Posts and Tele-           F
 graphs Department in force in the other departments provides for the
 issue of specific orders by the Government under which the members
 belonging to the Scheduled Castes & the Scheduled Tribes could gain
 some extra advantage. Admittedly no such order has been issued till
 today. The petitioners have prayed that a direction should be issued to
 the Government to issue specific orders conferring on them such an         G
 extra advantage. We feel that the claim made by the petitioners is fully
 justified in view of the fact that similar advantage is being enjoyed by
 persons belonging to the Scheduled Castes and the Scheduled Tribes in
 other Departments and only they have been deprived of it. Such depri-
 vation violates the equality clause of the Constitution. While it may be
 true that no writ can be issued ordinarily compelling the Government       H
    630         SUPREME COURT REPORTS               I 1988] Supp. 2 S.C.R.

A   to make reservation under Article 16(4) which is only an enabling
    clause, the circumstances in which the members belonging to the
    Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs
    Department are deprived of indirectly the advantage of such reserva-
    tion which they were enjoying earlier while others who are similarly
    situated in the other departments are allowed to enjoy it make the
B   action of Government discriminatory and invite intervention by this
    Court.

        One of the methods by which the Government can confer some
  extra advantage on the employees belonging to the Scheduled Castes
  and the Scheduled Tribes in cases of this nature where promotion to
C higher cadre is a time-bound one is to direct that the employees be-
  longing to the Scheduled Castes and the Scheduled Tribes may be
  promoted to the higher cadre on completion of a shorter period of
  service than what is prescribed for others. In this particular case it is
  open to the Government to direct that while all others would be
  entitled to be promoted to the higher cadre on completion of 16 years
D of service, the members belonging to the Scheduled Castes and the
  Scheduled Tribes may he promoted to the higher cadre on completion
  of, say, 12 or 13 years of service. There may be other methods of
  achieving the same result. The claim for conferment of some extra
  advantage on the Scheduled Castes and the Scheduled Tribes
  employees working in the Posts & Telegraphs Department which may
E be commensurate with the extra advantage which members belonging
  to the Scheduled Castes and the Scheduled Tribes are enjoying in the
  other departments of the Government of India without detriment to
  the maintenance of efficiency in the service appears to be a reason-
  able one. In what way it should be done is a matter left to the discre-
  tion of the Government. This should be decided by the Government
F taking into consideration all aspects of the case.

          We therefore, issue a direction to the Government of India to
    issue an order under clause 6 of the letter dated 23.11.1983 conferring
    some additional advantage on the employees belonging to the
    Scheduled Castes and the Scheduled Tribes in the Posts & Telegraphs
G   Department commensurate with similar advantages which are being
    en joyed by the employees belonging to the Scheduled Castes and the
    Scheduled Tribes in the other departments of the Government of
    India. The Government shall issue such an order accordingly within
    four months from today. Any order that may be issued by the Govern-
    ment shall operate prospectively. All promotions that have been made
H   so far pursuant to the policy contained in the letter dated 23.12.1983
       P & T EMPLOYEES ASSN. v. U.0.1. [VENKATARAMIAH, J.]            631

and that may be made hereafter till the date on which the direction to       A
be issued by the Government under clause 6 comes into operation,
shall however remain undisturbed.

       This petition is accordingly allowed. No costs.

G.N.                                                     Petition allowed.
                                                                             B