2004 Supreme(SC) 12

2004(1) Supreme 207
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha & Arun Kumar, JJ.
Ramrao and Ors. -Appellants
versus
All India Backward Class Bank Employees Welfare Association and Ors. -Respondents
Civil Appeal Nos. 4593-4594 of 2002
With
(Civil Appeal Nos. 4595-4596 and 4597 of 2002)
Decided on 5-1-2004
Counsel for the Parties :
For the Appearing Parties : V.N. Ganpule, Sr. Advocate, R.S. Hegde, Ms. Savitri Pandey, Dinesh P., P.P. Singh, B.K. Pal, Sapam Biswajit Meite, Ashok Kumar Singh, Mrs. Rachana Joshi Issar, Advocates.

IMPORTANT POINTS
1. For the purpose of effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless cut off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India.
2. Once dereservation is made, the vacancies become available for being filled up by general category candidates and thus, the Bank employer was not required to re-examine the question of availability of the Scheduled Tribe candidates for appointment on dereserved vacancies.

Headnote:SERVICE LAW-Regional Rural Banks Act, 1976-Regional Rural Banks (Appointment & Promotion of Officers and other Employees) Rules 1981-Rules 5(b)(ii), 10(1)(b)-Promotion to posts of Officers and Field Supervisors-Eligibility criteria-Board of Directors of the Bank passed a resolution approving the proposal to fill in 23 posts of Officers and 45 posts of Field Supervisors by promotion fixing the cut off date for eligibility as on 31-8-1989-Promotions were to be made on application of principle of seniority-cum-merit-Out of 45 posts of Field Supervisors, 13 including the backlog were proposed to be reserved for Scheduled Tribe category-Another circular issued notifying the vacancies-Order of dereservation-Writ Petition filed by respondent 1 questioning the cut off date of 31-8-1989 fixed by Bank-Another writ petition filed questioning also the order of promotion-Neither the promotees nor Union of India or NABARD were impleaded as parties-High Court upheld fixation of cut off date-Absence of dereservation as an issue-Effect of-Whether High Court was justified in directing the bank to examine availability of ST candidates for promotion-(No).

       Held : Order of dereservation was admittedly not in issue before the High Court. In the aforementioned fact situation, we are of the opinion that the High Court in absence of any specific challenge to the dereservation policy adopted by the Bank could not have gone into the said question. It is true that the High Court is entitled to take into consideration the subsequent events, but the same can only be a relevant factor for the purpose of moulding the reliefs. But while moulding such reliefs, the High Court could neither have considered grant of a relief wherefor no factual foundation existed was laid in the pleadings of the parties. It has been accepted at the Bar that no factual foundation was laid down in the writ petition before the High Court as to whether the Bank complied the requirement of Clause 7.7 of the procedure providing for exchange of reservation between SC/ST and vice-versa. The question as to whether any eligible scheduled caste candidate was available for promotion to the post of Officer or not is essentially a question of fact. It was, thus, not open to the High Court to advert to the said question. (Paras 25 and 26)

       It is true that the order of promotion was in question in Writ Petition No. 1551 of 1990 at the instance of one Ashok but even in the said writ petition the Promotees were not impleaded as parties. As in the case of the Association, even in the writ petition filed by Ashok, the order of dereservation passed by Union of India or NABARD or the Sponsor Bank had not been questioned. Admittedly, Union of India or NABARD were not parties in the said writ petitions. An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction the orders of promotion effected in their favour had been directed to be withdrawn indisputably were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon. In absence of the Promotees as parties, therefore, it was not permissible for the High Court to issue the directions by reason of the impugned judgment. (Para 27)

       It is not the contention of the Association that procedures for effecting promotion had not been followed. The promotees were, admittedly eligible for promotion and they had, thus, legally been promoted. The only question which was raised related to compliance on the part of the Bank as regard the procedure of dereservation. The High Court, therefore, was required to consider the said question only in the event, the factual foundation therefor had been laid down in the writ petition. The Association did not file even any supplementary affidavit or an application for amendment of the writ petition praying for a relief as regard quashing of the order of dereservation or bringing the appellants herein as parties thereto in the writ petition. In absence of any challenge to the order of dereservation and in absence of the Promotees having been impleaded as parties, the impugned directions could not have been issued by the High Court, more so when the appellants herein had not been given an opportunity of being heard. Once dereservation is made, the vacancies became available for being filled up by general category candidates and, thus, therefor the respondent Bank was not required to reexamine the question of availability of the Scheduled Tribe candidates for appointment on dereserved vacancies. The view taken by the High Court that even after dereservation was made, the Bank was required to reexamine the availability of ST candidates on the dereserved vacancies, was, therefore, not correct particularly when the High Court itself found that the cut off date being 31.8.1989 was correctly fixed by the Bank. (Para 28)

       It is now well-settled that for the purpose of effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless cut off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. In the instant case, the cut off date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be said to be arbitrary, irrational, whimsical or capricious. (Para 29)