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Sunday, February 7, 2016

Review - when there is an error apparent on the face of record, it should be corrected in review = whether there is any reservation in the promotions from one officer grade/scale to higher grade/scale, when such promotions are to be made on selection basis, i.e. on merits. The position taken by the appellant banks was that there is no rule of reservation for promotion in Class-A (Class-I) to the post/scales having basic salary of more than ?5,700 per month and OM dated August 13, 1997 at best provides only a concession in the manner officers belonging to SC/ST category are to be considered for promotion.=an act of the Court should not prejudice anyone and the maxim actus curiae neminem gravabit gets squarely applicable...”=We find adequate force in the aforesaid submission of the learned Attorney General. We have already reproduced those paragraphs of the judgment, i.e. paragraph Nos. 26 to 32, wherein after interpreting OM dated August 13, 1997, it is categorically held that this OM does not provide for any reservation. This is so stated in the opening lines of paragraph 34 as well by emphasizing that there is no reservation in promotion by selection within Group-A posts, which carry an ultimate salary of ?5,700 per month and it is only concession that applies. This conclusion is followed with the observation that contention of the banks in this behalf has been accepted. In spite thereof, in the very next line of paragraph 34, it is observed: “34... Significantly, what follows is that reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than ?5,700 per month (pre-revised).” It is clearly an error on the face of the record inasmuch as no such consequence follows. In fact, the aforesaid quoted portion is directly in conflict with not only the earlier portion of paragraph 34, but the entire conclusion on the issue on which there is a detailed discussion from paragraph Nos. 26 to 32 and even in earlier paragraphs of the judgment. It is this error, which is apparent on the face of the record, viz. the reservation is provided in promotion by selection respect of posts carrying salary of less than ?5,700 per month, that has led to further error that such reservation in the matter of promotion is applicable from Scale I upward up to Scale VI. What constitutes an error apparent on the face of the record = Once we find an error apparent on the face of the record and to correct the said error, we have to necessarily allow these review petitions.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   REVIEW PETITION (CIVIL) NO. 891 OF 2015
                                     IN
                        CIVIL APPEAL NO. 209 OF 2015

|CHAIRMAN & MANAGING DIRECTOR                     |                      |
|CENTRAL BANK OF INDIA & ORS.                     |…..PETITIONERS        |
|VERSUS                                           |                      |
|CENTRAL BANK OF INDIA SC/ST EMPLOYEES            |…..RESPONDENTS        |
|WELFARE ASSOCIATION & ORS.                       |                      |

                                   W I T H
                   REVIEW PETITION (CIVIL) NO. 837 OF 2015
                                     IN
                        CIVIL APPEAL NO. 213 OF 2015

                                   W I T H
                   REVIEW PETITION (CIVIL) NO. 892 OF 2015
                                     IN
                        CIVIL APPEAL NO. 211 OF 2015

                                   W I T H
                   REVIEW PETITION (CIVIL) NO. 903 OF 2015
                                     IN
                        CIVIL APPEAL NO. 210 OF 2015

                                   W I T H
                  REVIEW PETITION (CIVIL) NO. 1104 OF 2015
                                     IN
                        CIVIL APPEAL NO. 212 OF 2015



                                    A N D
                  REVIEW PETITION (CIVIL) NO. 2131 OF 2015
                                     IN
                        CIVIL APPEAL NO. 209 OF 2015


                               J U D G M E N T


A.K. SIKRI, J.
                 By our judgment dated January  09,  2015,  we  had  decided
batch of appeals which were preferred by the  Union  of  India  as  well  as
certain banks.  In these appeals, the validity of the judgment of  the  High
Court of Madras was questioned which held that in the matter  of  promotions
in the officer grades, there shall be reservation provided for the  officers
belonging to the Scheduled Caste (SC) and Scheduled  Tribe  (ST)  categories
working in these banks.  This decision of the High Court was  predicated  on
the interpretation to the provisions of Office Memorandum (OM) dated  August
13, 1997  issued  by  the  Central  Government,  along  with  certain  other
connected Office Memoranda.  It was concluded by the  High  Court  that  the
aforesaid OM dated August 13,  1997  provides  for  such  a  reservation  in
favour of the SC/ST employees.  The plea of the  appellant  banks  was  that
the said OM does not make any  provisions  for  reservation  in  respect  of
SC/ST employees.

The question, therefore, that needed determination by this Court was  as  to
whether there  is  any  reservation  in  the  promotions  from  one  officer
grade/scale to higher grade/scale, when such promotions are to  be  made  on
selection basis, i.e. on merits.  The position taken by the appellant  banks
was that there is no rule of reservation for promotion in Class-A  (Class-I)
to the post/scales having basic salary of more than ?5,700 per month and  OM
dated August 13, 1997 at best provides  only  a  concession  in  the  manner
officers belonging to SC/ST category are to be considered for promotion.

After hearing the counsel for the parties, judgment dated January  09,  2015
was rendered.  Provisions of OM dated August  13,  1997  and  other  related
Office Memoranda were considered by  this  Court  in  that  judgment.   This
Court, after interpreting the said OM, came to the conclusion that  this  OM
did not provide for any reservation.  Operative portion of the  judgment  in
arriving at the aforesaid conclusion reads as under:
“26.  While considering  this  question,  we  have  to  keep  in  mind  that
reservation policy of the Central Government is applicable to the  appellant
Banks.  It is the common case of both the  parties.   In  fact,  as  already
noted above, there is a specific provision to this effect in  the  promotion
policies framed by the appellant Banks.

27)  Next thing which is to be kept in mind is  the  two  office  memoranda,
one dated 1.11.1990 and the other dated 13.8.1997, which are referred to  by
the counsel for the parties.  We have already reproduced the  aforesaid  two
office  memoranda.   Insofar  as,  Office  Memorandum  dated  1.11.1990   is
concerned, a bare reading of this provision would reflect the following  two
aspects:

(a)   In promotion by selection within Class-I  (Group-A)  post,  the  SC/ST
candidates are to be given 'concession'.

(b)   This concession is available to those SC/ST employees who  are  senior
enough in the zone of consideration for promotion so as  to  be  within  the
number of vacancies for which select list has to be drawn up.

            Thus, first requirement is that such SC/ST candidates  who  come
within the zone of consideration for  promotion  are  senior  enough  to  be
within the number of vacancies.  Once they come within  the  aforesaid  zone
of consideration, they have to be included in the list,  provided  they  are
not considered unfit for promotion.  It clearly follows from the above  that
once they come under the zone of consideration for promotion  so  as  to  be
within the number of vacancies for which select list has  to  be  drawn  up,
for such SC/ST employees the only embargo to deprive them  of  promotion  is
when they are found unfit for promotion.   For  other  officers  in  general
category, depending upon the rule of promotion, there may be  much  stricter
criteria based on comparative merit or selection by  merit,  etc.   However,
in case of such senior enough SC/ST candidates, the criteria appears  to  be
seniority, subject to fitness.

(c)   This OM specifically clears the doubt that the aforesaid provision  is
only a concession  and  not  reservation  in  favour  of  SC/ST  candidates,
inasmuch as para 3 of the OM states that “It is  hereby  clarified  that  in
promotion by selection within Group-A post, which carry ultimate  salary  of
? 5,700/- per month, there is no reservation”.  It is clear from  the  above
that insofar as Office Memorandum dated 1.11.1990 is  concerned,  there  was
no  provision  for  reservation  made  in  favour  of  SC/ST  candidates  in
promotion by selection within Group-A posts carrying an ultimate  salary  of
?5,700 per month.

28)  No doubt, this Office Memorandum was issued in the year 1990,  that  is
much before amendment in Article 16 of the Constitution, which  was  carried
out in the year 1995 by inserting Clause 4A.  However,  as  already  pointed
out above, Clause 4A is an enabling provision which empowers  the  State  to
make reservations in the matter of promotions as well as in favour of  SC/ST
employees. There was no such provision  till  1.11.1990  in  the  matter  of
promotion by selection within Group-A post which carry  an  ultimate  salary
of ?5,700/- per month.

29)  Having understood this, we come to Office  Memorandum  dated  13.8.1997
to  find  out  as  to  whether  this  Memorandum  makes  any  provision  for
reservations in the matter  of  promotion  in  favour  of  SC/ST  employees,
inasmuch as no  other  Office  Memorandum  or  Circular  or  Rule,  etc.  is
produced on record for this purpose.

30)  We have already noted above that a nine Judge Bench  decision  of  this
Court in Indra Sawhney (supra) held that Clause 4 of  Article  16  does  not
cover the cases of promotion, meaning thereby, as per  the  said  clause  no
reservation in favour of SC/ST  persons  in  the  matter  of  promotions  is
permissible.  It is to  nullify  the  effect  of  this  dicta  in  the  said
judgment that Clause  4A  was  inserted  in  Article  16  by  Constitution's
Seventy-Seventh Amendment with effect from 17-06-1995.  However, it is  also
a matter of record that in Indra Sawhney's  case  (supra),  this  Court  had
also clarified that reservation for SC/STs in promotion would  continue  for
a period of five years from 16-11-1992.  What it meant was that if there  is
a  provision  of   reservation   made   in   the   matter   of   promotions,
notwithstanding the dicta in the said case that such a  reservation  is  not
permissible, those provisions were allowed to continue for a period of  five
years from  16-11-1992.   Thereafter,  before  the  expiry  of  five  years,
constitutional provision was incorporated  in  the  form  of  Clause  4A  by
making provision for reservation  in  the  matter  of  promotions  as  well.
These facts are taken note of in first two paras of Office Memorandum  dated
13-08-1997.  Thereafter, in the 3rd para  of  the  said  Memorandum,  it  is
provided:

“3.  In pursuance of Article 16(4A), it has been  decided  to  continue  the
Reservation in promotion as at present, for the  Scheduled  Castes  and  the
Scheduled Tribes in the services/posts under the Central  Government  beyond
15.11.1997 till such time as the representation of each  of  the  above  two
categories in each cadre reaches the prescribed percentages  of  reservation
whereafter, the reservation in promotion  shall  continue  to  maintain  the
representation  to  the  extent  of  the  prescribed  percentages  for   the
respective categories.”

31)  What is decided is to continue the reservation in promotion, which  was
prevalent at that time, for the SC/ST employees, which was  to  continue  in
terms of the judgment of this Court in Indra  Sawhney  (supra)  till  15-11-
1997, even beyond 15-11-1997, till such time as the representation  of  each
of  the  above  two  categories  in  each  cadre  reaches   the   prescribed
percentages of reservation whereof.  It is, thus, crystal clear from a  bare
reading of this para that the existing provision relating to reservation  in
promotion was allowed to continue beyond 15-11-1997.  Thus, this  Memorandum
did not make any new provision for reservation in  promotion  in  favour  of
SC/ST employees.

32) We have already noticed above that in matters of promotion within Group-
A posts, which carry an ultimate salary of ?5,700/- per month, there was  no
provision for any reservation.  On a conjoint reading of  these  two  Office
Memorandums, in the absence of any other provision or Rule  evidencing  such
a reservation in the matter of promotions, it cannot be said that there  was
reservation in promotion within Group-A posts upto the  ultimate  salary  of
?5,700/- per month.  The High Court in the impugned  judgment  has  gone  by
the lofty ideals enshrined in Articles 15 and  16  of  the  Constitution  as
well as the fact that in these Banks there is no adequate representation  of
SC/ST category of officers in Group-IV and above.  That may be so.   It  can
only provide justification for making a provision of this nature.   However,
in the absence of such a provision, same cannot be  read  by  overstretching
the language of Office Memorandum dated 13-08-1997.  It is for the State  to
take stock of the ground realities and take a decision as to whether  it  is
necessary to make provision for reservation in promotions to  the  aforesaid
post as well.”


As  pointed  out  above,  since  the  main  issue  that   had   arisen   for
consideration stood answered in favour of the  appellant  banks,  in  normal
course, the appeals should have been allowed reversing  the  judgment  dated
December 09, 2009 rendered by the High Court.  However,  during  the  course
of the arguments, the respondent employees had produced  copy  of  OM  dated
November 08, 2004 issued by the Department of Enterprises, as per which  the
salary limit of ?5,700 mentioned in  the  OM  dated  August  13,  1997,  was
treated as equivalent to ?18,300 on the implementation of the Fifth  Central
Pay Commission Report in respect of those public sector  undertakings  which
were following the Central Pay pattern and in  the  case  of  public  sector
undertakings  following  Industrial  Dearness   Allowance   (IDA)   pattern,
monetary ceiling was fixed as ?20,800.  On that basis, this Court  proceeded
further to discuss that aspect with the observation that the High Court  had
failed to consider the same.  Discussing this aspect, this Court  held  that
even when there was no policy of reservation  for  the  post  carrying  pay-
scale of more than ?5,700 per month, the reservation was  there  in  respect
of the post carrying basic pay  of  upto  ?5,700  per  month  and  with  the
implementation of the Fifth Central Pay Commission Report, it  would  follow
that such reservation was applicable  to  the  post  carrying  pay-scale  of
?18,300.  On that basis, it was held that since pay-scale of the posts  upto
Scale VI was ?18,300, insofar as promotions from Scale I to Scale II,  Scale
II to Scale III, Scale III to Scale IV, Scale IV to Scale V and Scale  V  to
Scale VI  are  concerned,  reservation  is  to  be  provided.   It  is  this
direction/portion of the judgment in respect of  which  the  instant  review
petitions are filed.  Thus, it would be  apt  to  reproduce  the  discussion
touching upon this aspect in the judgment.  The same reads as under:
“33.  Having  said  so,  one  other  aspect  which  has  to  be  necessarily
addressed to at this stage calls for our attention.  This aspect,  which  we
are going to point out now, has been totally glossed  over  by  the  learned
Single Judge as well as the Division  Bench  of  the  High  Court  in  their
respective judgments.

34.  It is provided in Office  Memorandum  dated  01-11-1990,  and  we  have
repeatedly stated above, that  there  is  no  reservation  in  promotion  by
selection within only those Group-A posts which carry an ultimate salary  of
?5,700/- per month.  In such cases, it is only concession that applies.   We
have accepted the contention of the appellant Banks in this behalf,  as  per
the discussion contained hereinabove.  Significantly, what follows  is  that
reservation is provided in promotion by  selection  qua  those  posts  which
carry an ultimate salary of less than ?5,700/- per month (pre-revised).

35.  The Department of Public Enterprises had issued  an  Office  Memorandum
dated 08-11-2004 as to the  salary  limit  of  ?5,700/-  mentioned  for  the
purposes of reservation as ?18,300/- (5th Central  Pay  Commission)  and  in
the  case  of  Public  Sector  Undertakings  who  are  following  Industrial
Dearness  Allowance  (IDA)  pattern,  the  monetary  ceiling  was  fixed  as
?20,800/- (from 01-01-1996, i.e. 5th Central Pay Commission).  The said  pay
ceiling is achieved in the appellant Banks  only  when  an  officer  reaches
Scale-VII.  As a fortiorari, the policy of no reservation in the  matter  of
promotion is applicable only  from  Scale-VII  and  above.   It,  therefore,
clearly follows that insofar as promotion from Scale-I to  Scale-II,  Scale-
II to Scale-III, Scale-III to Scale-IV,  Scale-IV  to  Scale-V,  Scale-V  to
Scale-VI are concerned,  reservation  is  to  be  provided.   The  appellant
Banks, therefore, cannot take umbrage under  the  aforesaid  Memorandum  and
deny reservation in favour of SC/ST employees while carrying out  promotions
upto to Scale-VI.

36.  Upshot of the aforesaid discussion would  be  to  allow  these  appeals
party.  While setting aside the impugned judgment of the High Court  to  the
extent it holds that Office Memorandum dated 13-08-1997  makes  a  provision
for reservation, it is clarified that at present there is no  provision  for
reservation in promotion by selection only in respect of those  posts  which
carry an ultimate salary of ?5,700/- per month (revised to ?18,300/- by  5th
Central Pay Commission and ?20,800/- per month in respect  of  those  Public
Sector Undertakings following  IDA  pattern).   Qua  appellant  Banks,  that
would be in respect  of  Scale-VII  and  above.   Therefore,  to  carry  out
promotions from Scale-I upwards upto Scale-VI, reservation in  promotion  in
favour of SC/ST employees has to be given.  It  would  have  the  effect  of
allowing the writ petitions filed  by  the  respondents/unions  partly  with
directions to the appellant Banks to make provision for  reservations  while
carrying out promotions from Scale-I to to Scale-II and upward  upto  Scale-
VI.

                                                        (emphasis supplied)”

Review petitions are filed by the Union of India as well  as  certain  banks
which were parties to the appeals.  In these review petitions,  applications
for  intervention/impleadment  are  filed  by  Indian   Banks'   Association
supporting the plea taken in the review petitions.  On the other  hand,  All
India  Central  Bank  SC/ST/OBC  Employees  Association-Kolkata,   Bank   of
Maharashtra SC/ST &  OBC  Employees'  Association-Pune  and  State  Bank  of
Travancore SCs & STs Welfare Association have also  filed  applications  for
intervention/impleadment with intent to oppose the review petitions.

Notice was issued to the respondent-employees/associations in  these  review
petitions.   They  have  filed  their  counter  affidavits  to  the   review
petitions.  We have heard counsel for all the parties  before  us.   It  was
also pleaded by the counsel on either side that since the  issue  raised  in
the review petitions has bearing on  the  merits  of  the  case,  the  issue
raised itself be finally decided.

Mr. Mukul Rohatgi, learned Attorney  General  appearing  for  the  Union  of
India, submitted that a fundamental error, which was an  error  apparent  on
the face of the record, had  crept  in  in  paragraph  34  of  the  judgment
wherein it was  observed  that  reservation  is  provided  in  promotion  by
selection qua those posts which  carry  an  ultimate  salary  of  less  than
?5,700 (pre-revised).  He pointed out that in the  earlier  portion  of  the
same paragraph (which is reproduced and highlighted above), this  Court  had
reiterated, after detailed discussion,  that  there  is  no  reservation  in
promotion by selection in Group-A posts which carry an  ultimate  salary  of
?5,700 per month and in such cases it is only the concession  that  applies.
He further submitted that in such a situation, OM dated  November  08,  2005
issued by the Department of Enterprises, that too at  the  fag  end  of  the
hearing of the appeals, had no relevance at all. He further  submitted  that
promotions were only up to Scale VI  in  these  banks  as  the  hierarchical
structure would reveal that Scale VII and above were  in  fact  Board  level
posts which are filled up by the Government  and  not  by  the  Departmental
Promotion Committee of the concerned banks.  In this manner, he argued  that
in spite of deciding the main issue against the respondents, because of  the
aforesaid error in the judgment, the said  benefit  was  still  bestowed  by
giving reservations to the officers belonging to SC/ST category  from  Scale
I to Scale VI.  He further demonstrated that  in  these  banks,  there  were
four categories  of  employees,  namely,  sub-staff  (Class  IV),  clerical,
officers and Board level posts.  The  promotions  were  provided  from  sub-
staff to clerical as well  as  from  clerical  to  junior  management  grade
(Scale-I).  However, there was no further  promotion  from  Scale-I  upward.
The learned Attorney General further argued that  the  entire  case  of  the
respondent employees was based on OM dated August 13, 1997 and relying  upon
the same, the respondent employees had argued  that  this  OM  provides  for
reservation.   However,  this  precise  contention  of  the  employees   was
specifically turned down and repelled by this  Court   by  interpreting  the
said OM to mean that it does not  provide  for  any  reservation,  but  only
gives certain concessions to the employees  belonging  to  SC/ST  categories
while considering their cases for promotion.  As a consequence,  no  further
discussion was required.

We find adequate force in the aforesaid submission of the  learned  Attorney
General.  We have already reproduced those paragraphs of the judgment,  i.e.
paragraph Nos. 26 to 32, wherein after  interpreting  OM  dated  August  13,
1997, it is categorically held  that  this  OM  does  not  provide  for  any
reservation.  This is so stated in the opening  lines  of  paragraph  34  as
well by emphasizing that there is no reservation in promotion  by  selection
within Group-A posts, which carry an ultimate salary  of  ?5,700  per  month
and it is only concession that applies.  This conclusion  is  followed  with
the observation that contention  of  the  banks  in  this  behalf  has  been
accepted.  In spite thereof, in the very next line of paragraph  34,  it  is
observed:
“34... Significantly, what  follows  is  that  reservation  is  provided  in
promotion by selection qua those posts which carry  an  ultimate  salary  of
less than ?5,700 per month (pre-revised).”

It is clearly an error on the  face  of  the  record  inasmuch  as  no  such
consequence follows.  In fact, the aforesaid quoted portion is  directly  in
conflict with not only the earlier portion of paragraph 34, but  the  entire
conclusion on the issue  on  which  there  is  a  detailed  discussion  from
paragraph Nos. 26 to 32 and even in earlier paragraphs of the judgment.   It
is this error, which is apparent  on  the  face  of  the  record,  viz.  the
reservation is provided in promotion by selection respect of posts  carrying
salary of less than ?5,700 per month, that has led  to  further  error  that
such reservation in the matter of  promotion  is  applicable  from  Scale  I
upward up to Scale VI.  What constitutes an error apparent on  the  face  of
the record is explained in State of Rajasthan & Anr. v.  Surendra  Mohnot  &
Ors.[1], with the aid of an earlier judgment, in the following manner:
“25.  To appreciate what constitutes an error apparent on the  face  of  the
record, the observations of the Court in Satyanarayan Laxminarayan Hegde  v.
Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, are useful: (AIR p.137)

“An error which has to be established by a long-drawn process  of  reasoning
on points where there may conceivably be two opinions can hardly be said  to
be an error apparent on the face of the record.  Where an alleged  error  is
far  from  self-evident  and  if  it  can  be  established,  it  has  to  be
established, by lengthy and complicated arguments, such an error  cannot  be
cured by a writ of certiorari according to the rule governing the powers  of
the superior court to issue such a writ.”

26.  In the case  at  hand,  as  the  factual  score  has  uncurtained,  the
application for review did not require a long-drawn  process  of  reasoning.
It did not require any advertence on merits which is in the province of  the
appellate court.  Frankly speaking it was a manifest and palpable error.   A
wrong authority which had nothing to do with the lis was cited and that  was
conceded to.  An already existing binding precedent was ignored.  At a  mere
glance it would have been clear to the Writ  Court  that  the  decision  was
rendered on the basis of a wrong authority.   The  error  was  self-evident.
When such self-evident errors come to the notice of the Court and  they  are
not rectified in exercise of review jurisdiction or jurisdiction  of  recall
which  is  a  facet  of  plenary  jurisdiction  under  Article  226  of  the
Constitution, a grave miscarriage of justice occurs...”


The Court also made the following pertinent observations:
“28.  We have already stated the legal position with regard to legal  impact
as regards the concession pertaining to the position in  law.   That  apart,
we think that an act of the Court should not prejudice anyone and the  maxim
actus curiae neminem gravabit gets squarely applicable...”

Learned counsel appearing for the respondent  employees  could  not  dispute
the aforesaid error having been occurred.  It is for this reason,  the  main
argument on the part of the counsel for the respondents was that insofar  as
Union of India is concerned, review petition was not maintainable as it  had
not challenged the judgment of the High Court.  It was also argued that  the
review petition filed by banks was against the public policy  as  there  was
no adequate representation of SC/ST employees in the  higher  posts  and  by
not providing such a reservation, the Government was  failing  to  subscribe
to the Constitutional spirit behind reservation  provisions.   Counsel  also
endeavoured to argue that the appeals which were filed against the  judgment
of the High Court themselves were not maintainable as a circular was  issued
by the Union of India impressing upon the banks to follow  the  judgment  of
the High Court.

The aforesaid arguments of learned  counsel  for  the  respondent  employees
fail to cut any ice as there are not germane to the  issue  with  which  the
Court is concerned with in these  review  petitions.   Even  if  the  review
petition filed by the Union of India is  to  be  discarded,  that  would  be
immaterial inasmuch as the banks,  which  were  the  appellants,  have  also
filed the review petition on the same grounds and, therefore, this Court  is
necessarily called upon to decide the  issue  at  hand.   Further,  when  an
error is pointed out and the  Court  also  finds  that  there  is  an  error
apparent on the face of the record, it would not shy  away  from  correcting
that error.

We would be candid in our remarks  that  once  an  error  is  found  in  the
order/judgment, which is apparent on the face of record and meets  the  test
of review jurisdiction as laid down in Order XLVII Rule (1) of  the  Supreme
Court Rules, 2013 read with Order XLVII  Rule  (1)  of  the  Code  of  Civil
Procedure, 1908, there is no reason to feel hesitant  in  accepting  such  a
mistake and rectify the  same.   In  fact,  the  reason  for  such  a  frank
admission is to ensure that this mind of patent error  from  the  record  is
removed which led to a wrong  conclusion  and  consequently  wrong  is  also
remedied.    For adopting such a course of action, the Court  is  guided  by
the doctrine of ex debito justitiae as well as the fundamental principal  of
the administration of justice  that  no  one  should  suffer  because  of  a
mistake of the Court.  These principles are  discussed  elaborately,  though
in a different context, in A.R. Antulay v. R.S. Nayak[2].

We would also like to reproduce the following observations in S. Nagaraj  v.
State of Karnataka[3]:

“18.  Justice is a virtue which transcends all barriers.  Neither the  rules
of procedure nor technicalities of law can stand in its way.  The  order  of
the Court should not be prejudicial to anyone.  Rule  of  stare  decisis  is
adhered for consistency but it is not as inflexible  in  Administrative  Law
as in Public Law.  Even the law bends before  justice.   Entire  concept  of
writ jurisdiction exercised by the higher courts is founded  on  equity  and
fairness.  If the Court finds that the order was passed under a mistake  and
it  would  not  have  exercised  the  jurisdiction  but  for  the  erroneous
assumption which in fact did not exist and its perpetration shall result  in
miscarriage of justice then it cannot on any  principle  be  precluded  from
rectifying the error.  Mistake is accepted as  valid  reason  to  recall  an
order.   Difference  lies  in  the  nature   of   mistake   and   scope   of
rectification, depending on if it is of fact or  law.   But  the  root  from
which the power flows is the anxiety  to  avoid  injustice.   It  is  either
statutory or inherent.  The latter is available where the mistake is of  the
Court.  In Administrative Law the  scope  is  still  wider.   Technicalities
apart  if  the  Court  is  satisfied  of  the  injustice  then  it  is   its
constitutional and legal obligation to set it right by recalling its  order.
 Here as explained, the Bench of which one of us (Sahai, J.)  was  a  member
did commit an error in placing all the stipendiary graduates  in  the  scale
of First Division Assistants due to State's failure to bring  correct  facts
on record.  But that  obviously  cannot  stand  in  the  way  of  the  Court
correcting its mistake.  Such inequitable consequences as have surfaced  now
due to vague affidavit filed by the State cannot be permitted to continue.”

The argument of public policy pressed by the respondents  is  of  no  avail.
We are conscious of the fervent plea  raised  by  the  respondent  employees
that employees belonging to SC/ST  category  should  be  made  eligible  for
promotion by providing the reservation in the promotional posts as well,  as
their representation is abysmally minimal.  However, whether  there  is  any
such justification in the demand or not is for the  State  to  consider  and
make a provision in this behalf.  This  was  so  recorded  in  the  judgment
itself in the following manner:

“24.  In the first instance, we make it  clear  that  there  is  no  dispute
about the constitutional position envisaged in Articles 15 and  16,  insofar
as these provisions empower the State to take affirmative action  in  favour
of SC/ST category persons by making reservations for them in the  employment
in the Union or the State (or for  that  matter,  public  sector/authorities
which are treated as State under  Article  12  of  the  Constitution).   The
laudable objective underlying these provisions is also to be  kept  in  mind
while undertaking any exercise pertaining to the issues  touching  upon  the
reservation of such SC/ST employees.  Further, such a  reservation  can  not
only be made at the entry  level  but  is  permissible  in  the  matters  of
promotions as wells.  At the same time, it is also to be borne in mind  that
Clauses 4 and 4A of Article 16 of the Constitution  are  only  the  enabling
provisions which permit the State  to  make  provision  for  reservation  of
these category of persons.  Insofar as making of provisions for  reservation
in matters of promotion to any class or classes of post is  concerned,  such
a provision can be made in favour of SC/ST category  employees  if,  in  the
opinion of the State, they are not adequately represented in services  under
the State.  Thus, no doubt, power lies with the State to make  a  provision,
but, at the same time, courts cannot issue any  mandamus  to  the  State  to
necessarily make such a provision.  It is for the State to act, in  a  given
situation, and to take such an  affirmative  action.   Of  course,  whenever
there exists such a provision for reservation in the matters of  recruitment
or the promotion, it would bestow an enforceable right in favour of  persons
belonging to SC/ST category and on failure on the part of any  authority  to
reserve the posts, while making selections/promotions, the beneficiaries  of
these provisions can approach the Court to get their rights enforced.   What
is to be highlighted is that existence of provision for reservation  in  the
matter of selection or promotion, as the case may be, is the  sine  qua  non
for seeking mandamus as it is only when such a  provision  is  made  by  the
State,  a  right  shall  accrue  in  favour  of  SC/ST  candidates  and  not
otherwise.”



Once we find an error apparent on the face of the record and to correct  the
said error, we have to necessarily allow these review petitions.


In view of the foregoing, the  review  petitions  are  allowed  by  deleting
paragraph Nos. 33 to  36  of  the  judgment  and  the  directions  contained
therein, as well as the directions contained in paragraph No. 37.   Instead,
after paragraph No. 32, following paragraph shall be inserted  and  numbered
as 33, and paragraph No. 38 should be re-numbered as 34:

“33.  Result of the aforesaid discussion would be  to  allow  these  appeals
and set aside the judgment of the High Court.  While doing so, we  reiterate
that it is for the State to take stock of the ground realities  and  take  a
decision as to whether it is necessary to make a provision  for  reservation
in promotions from Scale I to Scale II and upward, and if so,  up  to  which
post.  The contempt petition also stands disposed of.


34.  In the peculiar facts of this case, we leave the parties to bear  their
own costs.”


All the interlocutory applications for impleadment/intervention  also  stand
disposed of.


Before we part with, we would like to observe  that  we  have  mentioned  in
para 15, which was also recorded in the main judgment,  that  the  grievance
of the employees belonging to SC/ST category is  that  there  is  negligible
representation of employees belonging to their community  in  the  officers'
category at all levels.  Keeping in view the statistical figures which  have
been placed on record showing their representation in officers'  scales,  it
would be open to the concerned authority, namely, the State  and  the  Banks
to consider whether their demand is justified and it is feasible to  provide
reservation to SC/ST category persons in the  matter  of  promotion  in  the
officers' category and if so, upto which scale/level.

                             .............................................J.
                                                            (J. CHELAMESWAR)



                             .............................................J.
                                                                (A.K. SIKRI)

NEW DELHI;
JANUARY 08, 2016.
-----------------------
[1]   (2014) 14 SCC 77
[2]   (1988) 2 SCC 602
[3]   1993 Supp (4) SCC 595

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