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TMI Blog2004 (1) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2001 passed by the High Court of Judicature at Bombay Bench at Aurangabad in Writ Petition No. 255/1990. Writ Petition No. 1551/1990 has been filed by All India Backward Class Bank Employees Welfare Association (hereinafter referred to as "Association") which is the respondent No. 1 in the aforementioned appeals and the appellant in Civil Appeal No. 4597/2002. FACTS: The Promotees are employees of Marathwada Gramin Bank (hereinafter referred to as "Bank"). A circular bearing No. Ho/ST/Cir NO. 35/88 (159) dated 8.11.1988 was issued by the Respondent Bank notifying the eligibility criteria for internal promotion to the posts of Officers and Field Supervisors. The Board of Directors of the Bank passed a resolution dated 10.11.1989 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 therefor as on 31.8.1989. The promotions were to be made on application of the 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. On or about 27.11.1989 the Respondent Bank issued another ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor the Union of India or NABARD were impleaded as parties. In the said writ petitions the order of de-reservation was also not questioned. HIGH COURT JUDGMENT : By reason of the impugned judgment, a Division Bench of the High Court held that the cut off date fixed by the respondent Bank was valid. It further held that the Bank did not have any questionable motive in fixing the said cut off date and the explanation given by it being a plausible one could not be rejected. The contention raised by the Association to the effect that the said circular dated 8.11.1988 was issued for the purpose of frustrating the reservation policy did not find favour with the High Court, as upon a perusal of the select panel, it became explicit that the candidates from the SC categories had been appointed. The High Court further observed that even if in place and stead of 31.12.1989 being the cut off date the same was to be taken as 31.3.1990, nothing had been brought on records to show that any Scheduled Tribe candidate would have become eligible. The High Court further opined that the Scheduled Tribe candidates having been appointed sometimes in the year 1994 onwards, the requirements of six year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is against that part of the judgment wherein 'cut off' date fixed by the Bank has been found to be valid. SUBMISSIONS : The learned counsel appearing on behalf of the Promotees contended that the High Court committed a manifest error in passing the impugned judgment as in the writ petitions neither they were impleaded as parties nor the order of dereservation was in question. Besides, supporting the impugned judgment, the contention of the Association, on the other hand, is that keeping in view the fact that 29 vacancies are existing in the Bank as the concerned employees have either resigned, dismissed or died, the appellants as also the Scheduled Tribe Candidates can be accommodated against the said posts. It was urged that although the Association itself did not question the order of promotion, the same was done by Ashok in his writ petition and, thus, the High Court cannot be said to have committed an error in passing the impugned judgment. Furthermore, 13 other writ petitions were filed by other employees of the Bank questioning the appointment of the appellants herein which had also been disposed of relying on or on the basis of the impugned judgment. It was ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, it is respectfully submitted that although, it is true that due to one or the other reasons certain officers ceased to work with the respondent bank, but according to the Man Power Norms in Regional Rural Banks' introduced by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi, vide its Order/ Memorandum, F.No. 3/(24)/99 RRB dated 22.1.2001 and adopted by the Board of Directors of the respondent Bank, in the meeting dated 18.5.2001, there is no shortfall in manpower in the officer grade, of the respondent Bank and, on the contrary, there exists an excess manpower in the said grade. ii) It further needs to be kindly considered by your Lordships that the accumulated losses of the respondent bank are to the tune of ₹ 53.47 cores as on 31.3.2001. In view of the implementation of manpower planning norms and in view of the accumulated losses of the respondent Bank, it is not possible for the respondent Bank to add manpower in officer cadre, without getting the corresponding number of posts vacated, inter alia, by reversion of the petitioner." GRANT OF PROMOTIONS : The respondent Bank is a Regional Rural Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. However, if even after this relaxation suitable candidates are not available, the vacancies to be filled by direct recruitment and the vacancies so filled will be notionally carried forward to the subsequent years till the back log, if any, is cleared. Thereafter, the stipulated quota of fifty per cent from open market and fifty per cent by promotion will be adhered to". The candidates eligible for promotion were subjected to an interview by the Selection Committee constituted in terms of Rule 10(1)(b) of the Rules pursuant whereto and in furtherance whereof the appointments in questions were made. DERESERVATION : It appears that the respondent Bank initially reserved 8 posts of 'officers' for the Scheduled Tribe Candidates and 13 thereof for the posts of 'Supervisors'. Chapter VII of the brochure admittedly laid down the procedure for dereservation. Clause 7.6 provides for carry forward of reservations whereas Clause 7.7 deals with exchange of reservation between SC/ST and vice-versa. Clause 7.9 provides for reservation and carry forwarding of a single vacancy reserved for scheduled caste or scheduled tribe candidates which may be filled up by a genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 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. ANALYSIS : 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works (1975) 1 SCC 305: (1975) 2 SCR 573 at p. 579 and Sushma Sharma (Dr) v. State of Rajasthan (1985 Supp SCC 45 : 1985 SCC (L&S) 565: (1985) 3 SCR 243) at p. 269.) If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employee seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date but, the fact that some persons or a section of society would face hardship, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said : "...The employee may continue in service in the interregnum by virtue of clause (i) but that cannot alter the date on which the benefits that were due to an employee under the VRS to be calculated. Clause (c) itself indicates that any increase in salary after the cut off point/date cannot be taken into consideration for the purpose of calculation of payments to which an employee is entitled under the VRS." The High Court in its impugned judgment has arrived at a finding of fact that the Association had failed to prove any malice on the part of the authorities of the Bank in fixing the cut off date. A plea of malice as is well-known must be specifically pleaded and proved. Even such a requirement has not been complied with by the writ petitioners. CONCLUSION : An upshot of the above discussions is that the High Court could not have issued the impugned directions in absence of the promotees having not been impleaded as parties. Furthermore, the order of dereservation was not under challenge. In these appeals, this Court is not concerned with the effect of the orders passed by the High court in the writ petitions filed by 13 Scheduled Tribe candidates. We must ..... 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