VISHWAS ANNA SAWANT AND ORS.versusMUNICIPAL CORPORATION OF GREATER BOMBAY AND ORS.

A                   VISHWAS ANNA SAWANT AND ORS.
                                        v.
    MUNICIPAL CORPORATION OF GREATER BOMBAY AND ORS.

                                 APRIL 22, 1994

B          [K. RAMASWAMY AND N. VENKATACHALA, JJ.]

           Constitution of India, 1950 : Articles 16 and 46-Backward dasses-
    Reservation in promoti01t-Municipal corporation Resolution dated Septem-
    ber 12, 1975-Benefit of-Grant to one employee and denial to other~eld
C   unjustified.

           By a resolution dated September 12, 1975 the respondent- Municipal
    Corporation resolved to provide reservation for backward classes in
    promotions. In Municipal Corporation of Greater Bombay & ors. v. Mrs.
    Kalpana Sadhu Kamble & Ors., [1988) Supp. 2 S.C.R. 679, this Court
D   upheld the rule of reservation in promotions. Consequently, the corpora-
    tion. resolved to enforce the rule of reservation in promotions and decided
    that the names of candidates belonging to backward classes who became         ' '
    eligible for promotion from 1975 onwards would be included in the deemed
    select list as per rules after they were declared fit for promotion by
E   Selection Committee. Accordingly, the Corporation prepared· a
    senioritywise list or the backward classes employees considered fit for
                                                                                    .-
    promotion to the post of Asstt. Engineers and gave the fitment in the
    vacancies available to them at the respective dates in the roster, but they
    were not given promotion. M, an employee approached the High Court for
    granting the relief in a writ petition which was filed in a representative
F   capacity not only for himself but also for all backward class citizens. He
    was given the benefit or promotion, when he initiated the contempt
    proceedings, bnt when the appellants approached the High Court by an
    independent writ petition, the same benefit was not given to them. They
    preferred appeal before this Court.
G         Allowing the appeal and setting aside the order of the High Court,
    this Court

          HELD : 1. the right to consideration for promotion is a fundamental
    right guaranteed to scheduled castes and scheduled tribes in fulfilment of
H   the mandate under Article 16(1) read with Article 46 of the Constitution
                                       656
                      V.ASAWANT v. MUNICIPALCORPN. BOMBAY                        657

         to render socio-economic justice. The corporation is enjoined to give effect   A
>\       to the constitutional mandate. (659-G-H)

               2. The High Court was not justified in refusing relief to the appel-
         lants. The appellants stand in the same position as M and therefore the
         Corporation cannot take a different and inconsistent stand denying
         promotion to the appellants who stand on par with M. Appellants were           B
         nor declared unfit for promotion by any resolution passed by the Corpora-
         tion Promotion Committee or competent officer. On the other hand the
         Corporation relied on the interview conducted by it, which method or
 ·•      principle was declared by the High Court to be illegal. Under these
         circumsta11ces, the . action of the respondent-Corporation in not giving       C
         promotion to the appellants to the post of Asstt. Engineers from the post
         of Sub-Engineers is clearly illegal. (659-E, 660-A-C]

              Municipal Corporation of Greater Bombay & Ors. v. Mrs. Kalpana
         Sadhu Kamole & Ors., (1988) Supp. 2 S.C.R. 678, referred to.
                                                                                        D
                 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4073 of
     ,   1994.

 '            From the Judgment and Order dated 6.4.93 of the Bombay High
         Court in W .P. No. 359 of 1993.
                                                                                        E
                 Ms. Indira Jaising and Sanjay Parikh, for the Appellants.

                 N.B. Shetye and D.N. Misra for the Respondents.

                 The following Order of the Court was delivered : .
                                                                                        F
                 Leave granted.

                Sequential to the resolution dated May 23, 1974 of the Govt. of
         Maharashtra to provide reservation for backward classes in promotions,
         namely Scheduled Castes and of their converts to Buddhism, Scheduled
         Tribes and the denotified tribes an nomadic tribes al 13%, 7% and 4%           G
         respe.otively in Fifty Point Roster, the first respondent resolved on August
         12, 1975 to proved reservation in the services of the Corporation at the
         stage of promotion. It carried into effect to make promotions on the basis
         of seniority subject to fitness. During 1980, the sub-Engineers belonging to
         reserved classes became eligible, but were not promoted. A representation      H
                                                                                    j
    658                   SUPREME COURT REPORTS                  [1994] 3 S.C.R.

A in that behalf was made to give them appointment by promotion in accord·
     ance with the above resolution. Writ Petition No. 176 of 1980 was filed by
     Vishnu Des Patel and others in a representative capacity questioning the·
     policy of reservation in promotion. Equally Writ Petition No. 968 of 1990
     was filed by Manti Lal Mahadev Mane and-Others in a representative
     capacity, seeking implementation of the reservation. In the meljllwhile the
B    Corporation adopted the principle of interview for considering the claims
     of the reserved employees for promotion and rejected their claims on that
     basis. The High Court in its judgment dated March 14-15, 1984 partly
     allowed the writ petition negativing the reservation in promotion in certain
     posts and upheld in respect of others. The matter was carried in appeal
C    to this Court. In Writ Petition No. 545 of 1979, by judgment dated April
     15, 1984, the High Court upheld that the Corporation carmot introduce the
    principle of interview and allowed the writ petition. In Municipal Corpora-
    tion of Greater Bombay & Ors. v. Mrs. Kalpana Sadhu Kamble & Ors., [1988]
    Suppl. 2 SCR 679, upheld the rule of reservation in promotion and by
D   resolution dated March 17, 1979 the Corporation resolved to enforce the
    rule of reservation in promotion pursuant to the resolution dated Septem-
    ber 12, 1975 and resolved that the names of the candidates belonging to
    backward classes who became eligible for promotion in and from the year
    1975 onward should be included in the deemed select list as per rules after
    they are declared fit for promotion by the Selection Committee by screen-
E   ing confidential history sheets of the respective employees, if they are not
    already declared fit by the Promotion Committee. In furtherance thereof,
    the Corporation prepared senioritywise list of the backward classes
    employees considered fit for promotion to th~ post of Asstt. Engineers, as
    per reservation policy adopted from September 12, 1975 and March 14-15,
F   1989 and gave the fitment in the vacancies available to them at the respec-
    tive dates in the roster, but they were not given promotions. Mr. Mane filed
    a contempt petition in the High Court pursuant to which he was given
    promotion, but denied the same to the other employees. Consequently the
    appellant filed Writ Petition No. 359 of 1993 which the High Court dis-
    missed on April 6, 1993. Thus this appeal by special leave.
G
          Though notice was ·issued to the contesting respondents and served
    on them, they are neither appearing in person, nor represented through a
    counsel. The Municipal Corporation, pursuant to the judgment of this
    Court in Municipal Corporation of Greater Bombay's case gave reservation
H   to the backward class employees in promotions namely Scheduled Caste~.
                      V.A.SAWANT v. MUNIC!PALCORPN.BOMBAY                       659

           Scheduled Tribes and denotified Tribes an Nomadic Tribes at the percent- A
>· \       age mentioned in their circulars pursuant to the Resolution No. 567 dt.
           Sept. U, 1975. They have also stated in paragraph 4 theirin that the
           candidates belong to the backward classes who became eligible for promo-
           tion in the year 1975 and onwards should be inclnded in the deemed select
           list as per the rules, after they are declared fit for Promotion by the B
           Promotion Committee, by screening the Confidential sheets of the respec-
           tive employees. If they are already declared fit for promotion by the
           Promotion Committee, the exercise need not be reiterated. Pursuant to '
       +   that, the respondent Corporation prepared the memo in which they have
           stated that they have worked out, pursuant to Circular of the Bombay·
           Municipal Corporation dated August 14, 1989, the persons who are C
           eligible to be considered for promotion and the papers have been sub-
           mitted to the Commissioner on March 19, 1990 for approval and the
           approval was awaited. They have also stated to a representation made by
           the appellants that they are still awaiting the approval from the Commis-
           sioner. In the letter of the City Engineer, February 6, 1992 since promotion D
           was not given to them and similar benefit was extended to one Mr. Mane
           co-employee belonging to the backward class, they have filed the above
           writ petition but denied the retie! on the ground of delay as well on the
           ground that from 19.7.82, the policy of the promotion had been withdrawn
           and the appellants are not entitled to the promotion.
                                                                                       E
                  We have heard the counsel on both sides and we find that the High
           Court was not justified in refusing relief to the appellants. It is seen that
           pursuant to the resolution referred to above, there was no independent
           exercise done by the Corporation declaring the appellants not fit for
           promotion. On the other hand, they were noted in the sheets prepared by F
           them which is marked as Statement 'Tin the S.L.P. paper book that instead
       )
           of conducting fresh exercise, they relied on the screening done in 1976,
           1980 etc. and they reiterated that they are not found fit. That is the
           justification now sought to be given by the respondent in not giving promo-
           tion to the appellants. We find that the stand taken by them is wholly
           unjustified. The right to consideration for promotion is a fundamental right G
           guaranteed to scheduled castes and scheduled tribes in fulfilment of the
           mandate under Art. 16(1) read with Art. 46 of the Constitution to render
           socio- economic justice. This court has upheld the said right in Mrs.
           Kalpana Sadhu Kamb/e's case. Thereby the Corporation is enjoined to give
           the effect to the constitutional mandate. It is seen that when Mr. Mane had H
                                                                                     ).

    660                   SUPREME COURT REPORTS                   [1994] 3 S.C.R.

A approached the High Court for granting the relief in the previous writ
    petition which was filed in a representative capacity not only for him,,elf
    but also for all backward class citizens, he was given the benefit of promo-
    tion, when he initiated the contempt proceedings. But when the appellants
    had approached the High Court by an independent writ petition, the same
    benefit was not given to them. The appellants stand in the same position
B   as Mane and that therefore the Corporation cannot take a different and
    inconsistent stand denying promotion to the appellants who stand on par
    with Mane. It is seen from the record that they were not declared unfit for
    promotion hy any resolution passed by the Corporation Promotion Com-
    mittee or competent officer. On the other hand the Corporation relied on
c   the interview conducted by it, which method or principle was declared by
    the High Court to be illegal. Under these circumstances, the action of the
    respondent-corporation in not giving promotion to the appellants to the
    posts of Asstt. Engineers from the Posts of Sub-Engineers is clearly ille,gal.
    The appeal is allowed. The order of the High Court is set aside. The Writ
D   Petition is allowed as prayed for and respondent-Corporation is directed
    to give promotion to the appellants with all consequential benefits w.e.f.
    April 24, 1980 from the deemed dates which the Corporation itself had
    assigned. The parties are directed to bear their owo costs.

    T.N.A.                                                      Appeal allowed.