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PETITIONER: G.S.I.C. KARMACHARI UNION & ORS.

       Vs.

RESPONDENT: GUJARAT SMALL INDUSTRIES CORPN. & ORS.

DATE OF JUDGMENT:       12/12/1996

BENCH: K. RAMASWAMY, S.B. MAJMUDAR, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This writ petition under Article 32 of the Constitution has been  filed challenging  the validity  of the Resolution dated August 29, 1987 where under the respondent-Corporation had resolved to implement the roster system and promotion of Scheduled and  Tribes employer  as per  the  directives  and Resolution of  the Gujarat Government on January 31, 1976 to give effect  to the  policy of  reservation in promotions in all Class-I,  Class-II and Class posts in grades or services in which the element of direct recruitment, if any, does not exceed 50%.  The decision  on the fitness or unfitness of an Officer  would   be  taken  by  the  departmental  Promotion committee which  would be  constituted by the Departments. A 100 point  roster as  per  percentages  of  reservation  for Scheduled Castes  and Scheduled  Tribes,  to  determine  the number of  vacancies reserved  in a  year would be followed. According to  the points  in the  roster, if  their are  any vacancies reserved  for each  of the  two classes  mentioned separate lists  would be drawn up of the eligible candidates for each  of these  categories and  general  candidates  and arranged in  order of  their inter-se  seniority in the main list. The  Scheduled Castes  and Scheduled  Tribes employees should be  adjudged by  the Departmental Promotion committee separately in regard to their fitness. In paragraph 4 of the Resolution, it  was stated  that  these  orders  would  take effect from January 1, 1976.      On  April  30,  1984,  the  respondent-Board  passed  a Resolution that  in Article  16(4) and  Article 335  of  the Constitution provision  has been  made for  backward classes for  appointment   and,  therefore,   their  should   be  no difficulty in  providing reservation in appointment to posts to give  the benefit  to the  backward classes; and that the percentage of  reservation as  is  kept  in  the  Government service would  be applicable  to the Corporation. As per the orders of  the Board, for every type of recruitment at every stage or  service or  place, a  separate roster register, as per the  prescribed format,  is to  be Kept.  The Board  had given order  for filling  up the posts as per the percentage for  Scheduled   Castes  an   Schaduled  Tribes.   But   for introduction of  roster system  in the direct recruitment or

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promotion the Corporation had not yet issued any orders. The Corporation, therefore,  resolved  to  give  effect  to  the objectives of  the Government  and authorized  the  Managing Director to follow the roster system scrupulously as per the directions of  the Government  in IMPD,  vide  letter  dated September 29,  1983 for  class-I to class-IV employees which are as under:      (1) For SC/ST      (i) For direct recruitment      Class I  upto Sr. Executive’s level      and Class II, II and IV employees.      (ii) For promotion      Class I  upto Executive  level  and      Class II, III and IV employees.      (2) For  Socially and Educationally      Backward   Class   and   Physically      handicapped      (i) For direct recruitment only      Class I, Class II, Class III and      Class IV employees."      Subsequently,  they   passed  the  impugned  Resolution giving effect  to the  policy of  reservation and the roster system w.e.f.  1.1.1976. The question is: from what date the Corporation would give effect to the roster system?      It is  true, as  contended by  Shri P.S.  Poti  learned senior counsel  for the  State, that  when the policy of the Government envisaged  under Article 16(4) read with Articles 14 and  16(1) and  335 is given effect to the reservation in initial requirement  and promotion  can  be  made.  But  the question of  retrospectively the policy does not arise; what is being done is to give effect to the constitutional policy of providing  adequate  representation  to  the  members  of Scheduled Castes  and Scheduled  Tribes in  all  Classes  of service or  posts where they are not adequately represented. therefore, the arbitrariness does not arise since it is part of  the   scheme  of   the  constitution.   Unless  adequate representation  is  given  to  the  employees  belonging  to Scheduled Castes  and Scheduled  Tribes in  promotions also, the adequacy  to representation in all classes and grades of service, where  there is  no element  of direct  recruitment cannot be  achieved. Obvious, therefore, Article 16(4-A) was brought on the Constitution by Constitution (77th Amendment) Act, after the majority Judgment of this Court by a Bench of 9 Judges in Indira Sawhney vs. Union of India & Ors. [(1992) Supp. 3  SCC 210].  The Preamble  of  the  Constitution  and Article 38 accord social and economic Justice as fundamental rights to  all people in all institutions of national leave. Article 46  enjoins the  State to accord social and economic justice  to  the  Scheduled  Castes  and  Scheduled  Tribes. Article 51A  enjoins every  citizen  to  improve  excellence individually and  collectively so that the nation constantly rises  to   higher  levels,   socially,   economically   and culturally. Right to development assured by the Constitution is held  to  be  a  fundamental  right.  So  the  policy  of reservation  in   the  preamble  of  the  Constitution,  the fundamental rights  under Articles  14, 15(1), 15(4), 16(1), 16(4), 16(4A)  46 and  335 and the other related articles is to give effect to the above constitutional objectives.      On the facts, it is not necessary for us to go into the question of  retrospectivity   for the reason that after the aforesaid Resolution  and similar other Resolutions by other institutions  came  to  be  passed,  followed  by  agitation carried on  by the  antireservationists in  the  State,  the Gujarat State Government had constituted as Expert Committee to go  into the  question which  had made 11 recommendations

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for implementation.  One of  the recommendations made by the said  committee   was  to  give  effect  to  the  policy  of reservation prospectively.  The Government  had accepted the recommendation and agreed thus:      "Orders for  implementation on  the      recommendations  of   the  Sadhwani      Committee Nos.  5, 6,  9, 10 and 11      will have prospective effect."      Item 11  relates to  giving effect to the roster system prospectively. In  that view  of the  matter, the Government having conceded  to the  claims of  anti-reservationists and passed the  resolution to  give  effect  to  the  policy  of reservation in  promotions  prospectively,  the  respondent- Corporation was  justified in  passing  the  Resolution  for giving effect  to the  policy of reservation in all posts of classes I to IV from April 30, 1984. The subsequent impugned Resolution giving  effect to  the roaster  from  January  1, 1976, there  for, would not be justified in the light of the Resolution passed  by the  Government  on  August  18,  1985 referred to earlier.      It is  seen that  pending writ  petition some  officers belonging to Scheduled Castes and Scheduled Tribes have come to be  promoted. Since they are only marginal promotions, we do not  like to  interfere with the promotions already made. Subject to sustaining the promotions already, there shall be a direction  that the  Corporation would  keep operating the roster w.e.f. April 30, 1984 and onwards.      The writ petition is disposed of accordingly. No costs.