Judgment:
ORDER
Hanumanthappa, J.
The points for consideration in this Writ Petition are :-
1) Whether Time Bound Advancement of pay scale given to an employee/official be construed as an 'indirect time-bound promotion'?
2) Whether the benefit of Time Bound Advancement of pay scale be extended taking into consideration the roster ordered by the Government in its order dated 27.4.1978 in view of Article 16(4) to give adequate representation to Scheduled Caste Scheduled Tribe persons in the matter of recruitment, seniority and promotion?
2. A few facts which are necessary to dispose of this Writ Petitionare: The petitioner herein is an Association of the employees ofScheduled Caste and Scheduled Tribe in respondent HandicraftsDevelopment Corporation. The respondent is a State Undertaking, Ithas different categories of employees in its organisation. As per theCadre and Recruitment Rules of the respondent, there are differenttypes of posts to be filled up by way of direct recruitment andpromotion. According to the petitioner's Association, it is alwaysespousing the cause of its members belonging to SC/ST in the matterof recruitment and promotion. It is dissatisfied with the way in whichthe Corporation is treating its members in the matter of promotion andother benefits. According to it, Corporation is trying to circumvent theguidelines of the Government Order dated 27.4.1978 and theCirculars issued by the Government time and again in the matter ofrecruitment and promotion. It is the complaint of the petitioner that theCorporation is not taking steps to give promotions to the personsbelonging to SC/ST on the basis of roster. One such action ofrespondent Corporation is the Office Order at Annexure-A dated4.3.1992 captioned as Time Bound Advancement of Pay Scale to thestaff of the Corporation pursuant to the Resolution dated 20.1.1992 ofthe Corporation. In the preamble of the said Office Order ft ismentioned that the same shall be granted to employees holding theposts carrying pay scales specified in Column (2) thereof. Theconditions stipulated to receive the said benefit are (1) the employeeshall put in not less than 15 years continuous service in the same poston or after. 20.1.1992; (2) there should be satisfactory record ofservice, which will be determined in the same manner as merit isdetermined for promotion on seniority-cum-merit basis; and (3) theemployee should be qualified and eligible for promotion in accordance with the Rules applicable to the promotional post. Issuance of the said order drived the petitioner to this Court.
3. According to the petitioner, the order at Annexure-A is nothing but an intelligent way of circumventing the orders issued by the Government and also to prevent the persons belonging to Scheduled Castes/Scheduled Tribes seeking promotion since the said order, confers monetary benefit on officials. According to it, the order at Annexure 'A' is not only arbitrary but is violative of Article 16(4) of the Constitution and also contrary to the taw laid down by the Supreme Court in P and T SCHEDULED CASTE/TRIBE EMPLOYEES WELFARE ASSOCIATION v. UNION OF INDIA, : (1989)ILLJ76SC which has been referred to by this Court in W.P.Nos. 5700/80 and connected Writ Petitions disposed of on 12.1.1990., ITI SC & ST Employees Welfare Association v. Union of India
4. Mr. Ravivarma Kumar, learned Counsel for the petitioner, contended that apart from the order at Annexure-A being violative of Article 16(4) of the Constitution, it has put an end to the promotional avenues to SC/ST persons; that the pay scales indicated in Column 3 of the order when compared, the only conclusion that can be arrived at is the said pay scales are meant only for those who do not belong to SC/ST. it is also his case that though the Government Order mandate the State authorities to follow the roster, as the same has not been followed, backlog has crept in the respondent Corporation and because of the said backlog or failure to comply with the Government Orders, now the beneficiaries under Annexure-A are only those who belong to other categories than SC/ST. Thus contending, he submitted that the order at Annexure-A be quashed and a direction be given to the respondent Corporation that while extending the benefit of time bound advancement pay, the same shall be extended to members of SC/ST working in the Corporation without insisting the first condition, namely, one should have put-in 15 years service.
5. Mr. Subba Rao, learned Counsel for the respondent, submitted that time bound advancement pay scale is not a 'promotion' but it is only a monetary benefit extended to employees since there is stagnation for good number of employees, which includes SC/ST persons who are also deprived of promotional avenue. The saidScheme shall not be construed as 'promotion'. He further submittedthat in the Cadre and Recruitment Rules different cadres mentionedand the method of promotion are provided and it is incorrect to saythat the time bound advancement pay will take away the avenues ofpromotion. He has further submitted that the respondent Corporationhas not deviated from any of the orders of Government while makingthe appointments; that the order at Annexure-A in no way contraveneArticles 16(4) of the Constitution or the law said down by the SupremeCourt. He also pointed-out that there is no direction for givingpreferential treatment to SC/ST in the matter of time boundadvancement pay. He has vehemently contended that the benefit oftime bound advancement pay is a monetary benefit extended topersons who have put in considerable years of service without anypromotion and the same cannot be extended ignoring the length ofservice as contended by the learned Counsel for the petitioner. Thusarguing, he prayed for dismissing the Writ Petition.
6. The controversy revolves round the proper understanding oftime bound advancement pay in Annexure-A. In order to appreciatewhether the said benefit could be construed as indirect promotion ornot, one has to look into the Cadre and Recruitment Rules. As long asCadre and Recruitment Rules are there and provision for promotion isthere, it cannot be said that the time bound advancement Scheme isan intelligent way of preventing SC/ST persons seeking promotion. Itis not the case of the petitioner Association that the time boundadvancement Scheme does not apply to SC/ST persons.Mr. Subbarao pointed-out that this Scheme is applicable to all theposts and has nothing to do with the chances of promotion. Promotionmeans jumping from lower cadre to higher cadre. There is no cadreas such for time bound advancement pay. Even though an employeeobtains the benefit of the Scheme and receives higher salary, heremains in the same cadre. As such, it cannot be said that time boundadvancement is 'promotion', All categories of employees in the payscales 1 to 12 mentioned in Column No. (1) in Annexure-A will haveequal chance of getting the benefit if they fulfil the conditions. Thatdoes not mean that employees who receive the benefit will secureautomatic promotion. In other words, time bound advancement pay isnothing but a monetary benefit or financial incentive given to anemployee who does not get promotion within the 15 years period in view of limited avenues for promotion depending upon the vacancies arise in the promotional cadres contained in the recruitment Rules and not a promotion as such. Accordingly, the first question is answered in the negative.
7. With regard to the second question relating to the concession to be shown to SC/ST persons while giving effect to time bound advancement Scheme, Mr. Ravivarma Kumar, learned Counsel for the petitioner, placed reliance on Articles 16(4) and 335 of the Constitution of India and the decision of the Supreme Court in P & T SC/ST Employees Welfare Association case : (1989)ILLJ76SC as also the Decision of this Court in WP.No. 5700/80 and connected Petitions. In order to appreciate whether Article 18(4) and Article 335 of the Constitution should be extended to time bound advancement pay or not it is proper to understand the true effect of those Articles, Article 16(4) reads thus:-
'(4) Nothing in this 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 335 reads thus:-
'335. The claim of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State'.
8. From a reading of the above two Articles it is clear that while making appointments reservations should be provided to backward classes and the claim of members of SC/ST shall be taken into consideration in order to see that proper and adequate representation is provided to persons belonging to these, categories, who were denied of such opportunities for various economic, social and other historical reasons, it is also stated that white doing so, maintenance of efficiency of administration shall be one of the factors to be taken into consideration. It is not mentioned that such reservation shall be extended while giving monetary benefit or incentives to the employees. As already stated, time bound advancement pay is an incentive or monetary benefit given to employees who do not get promotion for considerable years of service so as to maintain efficiency of administration. While the benefit accrues to all class of employees, in the matter of promotion the Rules governing service conditions takes care of reservation for SC/ST employees. Reservation for SC/ST provided in matters of appointments or selections cannot be extended to schemes conferring monetary benefits for various reasons.
9. Even in the authorities relied upon by Mr. Ravivarma Kumar, the point raised now was not the question raised for consideration. In those cases, clear case of discrimination was made out. On the other hand, it has been said that the time bound advancement Scheme is extended to all the employees without any discrimination and strictly following the norms prescribed in Annexure-A. Similar scheme exists for Government servants also under the Karnataka Civil Service Rules. In what way promotional avenues for SC/ST employees affected, is not shown. Therefore, the authorities relied upon by Sri Ravivarma Kumar, on facts, have no application to the present case.
10. A reading of Article 16(4) makes it clear that making provision for reservation while appointing or promoting for SC/ST and backward classes is the duty of the State. Petitioner Association cannot compel the respondent Corporation to discharge the duties of the State. The Corporation cannot be equated to State. State Government has not issued any orders providing reservation in the matter of time bound advancement Scheme. In the absence of any specific provision or order, it is incorrect to claim that the time bound advancement Scheme in Annexure-A should be extended to SC/ST employees following the roster. Thus Point No. 2 is also answered in negative.
11. Mr. Ravivarma Kumar may be right in saying that some of the authorities/institutions/Bodies are indirectly depriving the benefits given to SC/ST people under Article 16(4) of the Constitution. According to him the present order at Annexure-A is one such, namely depriving the employees belonging to SC/ST to get promotion. This Court cannot take cognizance of the same as long as brain and intelligence dictates so in such cases. Unless the persons belong to this unfortunate class equip intellectually, things bound to happen like that and it is for the State and the executive to correct the same. It is not for the Courts to lay the guidelines. So long as efficiency in administration requires to be maintained, all benefits cannot be extended blindly ignoring the restrictions or conditions that may be required to maintain efficiency.
12. I am unable to agree with the complaint of the petitioner Association that respondent Corporation is depriving the benefits of reservation to the members of SC/ST. In Annexure-C, the Office Order dated 31.8.1988 issued by the respondent Corporation, the experience for promotion has been relaxed by two years in case of SC/ST candidates. This clearly proves that the Corporation is giving concession to SC/ST employees wherever they deserve. Such concession cannot be extended to all matters. Accordingly, question No. (2) is answered in negative.
13. Before parting with this case, it is proper to make note of the submission of Mr. Subbarao that the time bound advancement policy adumberated in Annexure-A shall not be construed by the petitioner Association or its members that it will deprive promotional avenues to them. As long as such feeling is there, I do not think that any member of the petitioner Association will have a genuine grievance in the matter of promotion as if their chances of promotion is denied or deprived of.
14. The feeling of the petitioner Association is that respondent Corporation had made appointments without making provision for reservation strictly in accordance with the Government order and that if there was strict compliance, many persons belonging to SC/ST category would have been in higher positions and because of the failure to fill-up the backlog vacancies it adversely affected the interests of SC/ST employees. The said grievance is not the issue involved in this Writ Petition. If that is the feeling of petitioner Association, it has to get it agitated in separate proceedings.
15. In the result, the Writ Petition fails and the same is dismissed.