1. The two employees' associations of the respondent-Indian Institute of Sciences (hereinafter, 'the Institute') have preferred these two writ petitions questioning the reasonableness and constitutional permissibility of the Resolution XII passed by the Governing Council of the Institute at its meeting held at 20-12-1996 by which retrospective amendments have been made to the 'Scheme for Career Advancement of the Employees of the Institute'. Both the associations feel aggrieved by the clauses which benefits the members of the other counterpart.
2. The Institute was established in 1909 with two departments. Today, it has 43 departments/centers/units/labs covering a wide range of engineering and basic sciences. It has about 500 faculties, 1700 students and 1500 support staff. It has the largest computing facility for any academic institute in the country and has the best library in science andtechnology. It has acquired a place of pride in the national endeavours to progress through science and technology.
3. The Central Government, pursuant to the powers conferred on it under Section 3 of the University Grants Commission Act, 1956, on the advice of the Commission holding the Institute to be an institution of higher education by the notification No. F. 8-77 of 1957-T.1 dated 12-5-1958 declared it to be a deemed University for the purposes of the said Act.
4. The Institute is mainly funded for its maintenance by the Ministry of Human Resources and Development. The extract of the accounts as placed on record shows that out of the actual subject estimate for the financial years 1995-96, 1996-97 and 1997-98 being Rs. 40,36,14,822, Rs. 40,00,01,112 and Rs. 51,59,12,000 respectively, the grants of the Central Government figure at Rs. 31,73,00,000, Rs. 31,64,00,000 and Rs. 45,36,00,000 respectively. Thus, the Government grant is almost 90% of the total receipt.
5. The properties and the affairs of the Institute are administered and managed by the 'Board of Management' and the 'Governing Council' constituted under a statutory scheme framed by the Central Government under Section 5 of the Charitable Endowments Act, 1890. The said scheme has been published in the Official Gazette in S.O. 2084 dated 22-5-1967. The said notification reads as under:
IN THE MATTER OF CHARITABLE ENDOWMENTS ACT, 1890
S.O. 2084.--Upon the application of the Council of the Indian Institute of Science, Bangalore and the Board of the Management of the said Institute being the persons acting in the administration of the Trust and in exercise of the powers conferred by Section 5 of the Charitable Endowments Act, 1890 (Act VI of 1890), the Central Government with the concurrence of the said Council and the said Board of Management and the Joint consent of the Trustees of the Public Charities known as Sir Dorabji Tata Trust and the Sir Ratan Tata Trust and with the approval of the Visitor of the said Institute, pleased to declare that in the place and stead of the scheme for the administration and management of the properties and funds of the Indian Institute of Science, Bangalore, set forth in Schedule-H to the vesting Order made on the 27th May, 1909, in the above mentioned matters in pursuance of Sections 4 and 7 of the aforesaid Act, and as modified from time to time, the revised scheme as set forth in the Schedule-H hereto annexed be substituted with effect from the 22nd May, 1967'.
6. From the above facts, it can plainly be concluded that.-
(i) the Institute is an educational institution engaged in discharging a Governmental function, that is, imparting of education;
(ii) it is a deemed University regulated by the statutory provisions of the University Grants Commission Act;
(iii) it is administered and managed under a statutory scheme framed under Charitable Endowments Act;
(iv) for its day-to-day management, it primarily depends on public funds.
7. Despite the above, Sri Lakshminarayana, the learned Senior Counsel, appearing for the SC/ST Employees' Association has questioned the very maintainability of the writ petition on the ground that the Full Bench of this Court in W.P. No. 16853 of 1986 (disposed of on 4-4-1997) has held that the Institute is not a State within the ambit of Article 12 of the Constitution of India for the reason set out in Paragraph 9 wherein it has been held that.-
'It can thus be seen that none of these cardinal elements laid down by various decisions of the Supreme Court are present in this case. There is no Government funding to the Institute to run the same; there is no deep and pervasive control of the Government in its administration; and, no Governmental function is discharged by the first respondent (that is, the Institute)'.
8. Anyhow, the Full Bench left the question open as to 'whether the first respondent-Institute is 'other authorities' amenable to the jurisdiction of this Court under Article 226 of the Constitution of India'.
9. Sri Acharya, the learned Senior Advocate appearing for the general category Employees' Union has submitted that since, in view of the judgment of the Supreme Court in the case of Unnikrishnan v State of Andhra Pradesh and in the judgment of the Apex Court in the cases of Sri Anadi Mukta Sadgu.ru Shree Muktajee Vandasjiswami Suvarna Jay-anti Mahotsav Smarak Trust and Others v V.R. Rudani and Others and K. Krishnammacharyulu v Sri Venkateshwara Hindu College of Engineering, the Institute is discharging Governmental functions and also that the Governmental funding to the Institute is almost to the extent of 90% therefore, the Full Bench judgment should be held to be per incu-riam. But, after so submitting, he himself realised that this may not be a very appropriate suggestion keeping in view the recent judgment of the Supreme Court in the case of State of Uttar Pradesh v C.L. Agrawal, in para 19 whereof, it has been held.-
'We are dismayed that the Division Bench hearing the said writ petition should have proposed to examine the issue 'notwithstanding the aforesaid pronouncement of the Full Bench judgment. . . '. If the judgments in the case of Supreme Court Employees' Welfare Association and H.C. Puttaswamy, were cited and the respondents to the said writ petition submitted thatthe Full Bench judgment was erroneous by reason thereof, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said writ petition to a Full Bench. Judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court'.
10. In the case of Unnikrishnan, supra, the Supreme Court has held that education is one of the most important functions of the Indian State but it has no monopoly therein (paragraph 161). It has further been held that (paragraph 169 at 2246).-
'The private educational institutions merely supplement the effort of the State in educating the people as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State'.
11. Again, in the case of Sri Anadi Mukta Sadguru SMVSJM Trust, supra, it has been held that even if a person is held as not to be an authority for the purpose of Article 12, still its action can be subjected to judicial scrutiny under Article 226 provided it is shown that the function or duty discharged by it has a public element. In paragraph 19, it has been held that.-
'The term 'authority' used in Article 226, in the context, must receive a liberal meaning like the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'Any person or authority' in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied'.
12. In the recent judgment of the Supreme Court in the case of Krishnamacharyulu, supra, it has been held that the State has obligation to provide facilities and opportunities to the people to avail of the right to education and the private institutions cater to the needs of educational opportunities. Therefore, the writ petition under Article 226 of the Constitution of India was held to be maintainable though the respondent-college was private in nature.
13. Keeping in view the law so laid by the Supreme Court in the above referred judgments, it will be too late in the day to say that the present writ petition is not maintainable against the Institute since theInstitute aptly fits in with the expression 'any person or authority' used in Article 226 of the Constitution of India.
14. The other important question pertaining to jurisdiction is that even if the writ petition is maintainable against the Institute despite it not being a 'State' under Article 12 of the Constitution of India, can the impugned resolution passed by its Governing Council be subjected to the forensic test of Articles 14, 15 and 16 of the Constitution. In this regard, Sri Acharya, learned Senior Counsel, has very rightly submitted that it is not only permissible to do so, but on the other hand it is imperative on the part of the management to establish that its impugned resolution stands the test of equality and reasonableness enshrined in Articles 14, 15 and 16. In support of his submission, he has referred to paragraph 162 of the Unnikrishnan's case, supra, wherein it has been held.-
'Private educational institutions may be aided as well as unaided. Aid given by the Government may be cent per cent or partial. So far as aided institutions are concerned, it is evident, they have to abide by all the rules and regulations as may be framed by the Government and/or recognizing affiliating authorities in the matter of recruitment of teachers and staff, their conditions of service, syllabus, standard of teaching and so on ..... These are and shall be understood to be the conditions of grant of aid. The reason is simple: public funds, when given as grant-and not as loan-carry the public character wherever they go. Public funds cannot be donated for private purposes. The element of public character necessarily means a fair conduct in all respects consistent with the constitutional mandate of Articles 14 and 15'.
15. So far as reservation for Scheduled Castes and Scheduled Tribes in the services in the Institute are concerned, there does not appear to be any dispute in this regard. The Registrar of the Institute has come on record through affidavit to affirm that, pursuant to the letter of the Government of India dated 22-2-1970, the Institute has fallen in line with the Government policy in respect of reservations. The Governing Council of the Institute resolved that.-
'The reservation of posts for Scheduled Castes and Scheduled Tribes generally on the lines indicated on the Government of India Communication, be implemented with effect from 1st April, 1971 and the Director be authorised to take all necessary steps like, classification of posts, maintenance of roster, etc., in this behalf.
GENESIS AND CAUSE OF THE PRESENT DISPUTE
16. The Institute with effect from 1-7-1978 introduced a scheme for career advancement of its employees on the basis of periodic evaluation of their performance. It is not at all in dispute that the evaluation scheme was intended only to give monetary benefits of the higher scales of pay to the employees without affecting their seniority in their respective cadres nor it had any bearing on the future promotional prospects in higher cadres. Admittedly, in each cadre of employees, there are three or four scales of pay which can be successively attained by each and everyemployee provided he has been found fit for the higher pay scale on periodical evaluation of their efficiency and performance by achieving the minimum cut-off percentage of marks. There is no reservation in this regard.
17. Initially, the period of evaluation was five years for all categories of employees. Subsequently, under tripartite agreement between the two associations and the management, the qualifying evaluation period was made three years for SC/ST employees and five years for general category employees. This was made effective from the evaluation batch of 1-7-1983. The matter was again reviewed as per the said agreement. On review, it was found that at the end of three years as compared to five years, it has caused distortions in service conditions of the employees. Accordingly, the Governing Council of the Institute in its meeting held in December 1985, decided to again enforce the uniform qualifying period of five years for the employees of both the associations from then onwards. It is a matter of record that after the implementation of the recommendation of the Fourth Central Pay Commission in the Institute as well, with effect from 1-1-1986 a uniform qualifying period of six years of evaluation was implemented for both the categories of employees.
18. However, the members of general category association went on agitation during December 1991, demanding rectification of distortions resulted from the three year evaluation given to SC/ST employees earlier from 01-07-1983 and an amicable settlement was arrived at with them in 1991. But the SC/ST employees union made a representation to the National Commission for SC/ST constituted under Article 338 of the Constitution of India, on various matters relating to reservations and concessions to SC/ST employees, inter alia, also demanding continuation of three year's evaluation for their members. They also started agitation to support their said demands from 03-06-1996 and resorted to relay hunger strike.
19. Subsequently, the SC/ST Commission made its recommendations, inter alia, on the evaluation aspect as well (Annexure-C). It read thus.-
'Evaluation in the present form has element of selection because all the people evaluated are not picked up. Evaluation has an element of benefit, since the evaluation gives some increase in the salary which is not called as promotion. Whenever there is an element of selection or element of upgradation or promotion the guidelines stipulates the relaxation. Hence, Institute should provide one year relaxation compared to general candidates under standard norms from the date the facility has been withdrawn'.
20. Keeping in view the above recommendations of the Commission, the Council passed the impugned resolution dated 20-12-1996 which reads as follows:
'Resolution XII.--That (i) one year relaxation in the evaluation period of SC and ST employees as compared to employees other than SC and ST categories be extended to SC andST employees in the evaluations under the six years evaluation scheme after the discontinuation of the 3 year evaluation in respect of SC and ST employees under Groups B, C and D category except those who were appointed in the scale of Rs. 1640-2900 and above and who were on roll in those categories as on 28th September, 1996; (ii) letter of actual placement in the higher scale of pay wherever admissible be issued; (iii) after extending one year relaxation in evaluation, the evaluation of SC and ST employees who had completed 5 years of service and became due for evaluation on or before 31st December, 1995 be taken up and completed; (iv) the same qualifying, mark as are obtaining to general category of employees be adopted in respect of evaluations of SC and ST employees to be conducted at above in (iii); (v) employees belonging to other than SC and ST category who were on roll as on 28th September, 1996, be paid arrears for the period from 1st April, 1990 to 31st December, 1990 as monetary benefit in implementing the negotiated settlement of December 1991 with regard to advancement process only; (vi) if the pay of the senior general category employee becomes less than that of a junior SC and ST employee within the same cadre and scale of pay, consequent on the implementation of one year relaxation in evaluation for SC and ST employees, as recommended by the National Commission, the pay of such senior general category employee be stepped up to that of the junior SC/ST employee from the date such senior employee becoming eligible for the higher scale of pay after being successful/qualified in the evaluation; (vii) further evaluations beyond 31st December, 1995 in respect of Groups B, C and D category of employees be not taken up until the future evaluation policy of the Institute in respect of Groups B, C and D category of employees is formulated by the Council after adoption of the recommendations of the 5th Central Pay Commission; and (viii) a Standing Committee be appointed by the Director to examine individual cases if anomalies are brought to attention as a result of implementation of all these recommendations'.
21. The effect of implementation of the above resolution is that out of the otherwise two similarly situated employees, falling respectively in SC/ST and general categories, though discharging similar duties and equally qualified and competent, the SC/ST candidate is granted higher scale of pay at the end of five years whereas the general candidate is given the said higher scale at the end of six years. This scheme of evaluation and placement in higher scale is ex facie in derogation of the well established doctrine of 'Equal Work Equal Pay' having its roots in Articles 14, 15, 16 and 39(d) of the Constitution of India. In the case of Randhir Singh v Union, of India and Others, which is the leading case on the topic, it has been held by the Supreme Court that: (at page 822)
'Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle 'Equal pay for Equal Work' is deducible from these Articles and may be properly applied to cases of unequal scales of pay based on no classification though those drawing the different scales of pay do identical work under the same employer'.
22. In order to counter the plea of 'Equal Work Equal Pay', and in an effort to substantiate the permissibility of preferential treatment in giving higher pay scale to SC/ST employees on a shorter period of evaluation, Sri Laxminarain, learned Counsel appearing for SC/ST Employees' Association, has submitted that granting of such a preference or relaxation is permissible under Article 16(4) of tbe Constitution since it is only one of the facets of reservation. In support of his submission, he has relied upon the judgments of the Supreme Court in the cases of State of Kerala and Another v N.M. Thomas and Others , Akhil Bharatiya Soshit Karamchari Sangh (Railway) v Union of India , Comptroller and Auditor General of India, New Delhi v K.S. Jagannathan , P and T SC/ST Employees' Welfare Association v Union of India , Indra Sawhney v Union of India, State Bank of India SC/ST Employees' Welfare Association v State Bank of India , Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad v G. Sethumadhava Rao.
23. On the other hand, Sri Acharya, learned Counsel appearing for the general category Employees' Association, has submitted that admittedly, the grant of one year's relaxation in the evaluation period is intended only for giving monetary benefits in higher scales of pay and it has no proximity or nexus with grant of reservation in any grade or cadre of service. Therefore, none of the decisions cited by Sri Laxminarain can have any bearing on the issue involved. He has alternatively submitted that if placement in the higher scale of pay in the same cadre is taken to be a promotion or any facet thereof, even then, in view of the latest judgment of the Supreme Court in S. Vinod Kumar and Another v Union of India and Others , no relation or preference can be given to SC/ST candidates.
24. Article 16 of the Constitution of India reads as follows:
'Article 16(1) There shall be equality of opportunity for allcitizens in matters relating to employment or appointment to any office under the State.
(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.
25. In Thomas case, supra, the rule of the State Government allowing the employees belonging to SC/ST an extended period of two years for passing the departmental or special test for promotion was held valid as being just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office.
26. In Akhil Bharatiya Soshit Karamchari Sangh's case, supra, the Supreme Court held that the directive to give the eligible SC/ST candidates one grade higher than what otherwise was assignable to them for the purpose of promotion by selection from Class III to Class II is valid since, under Articles 15(4) and 16(4) lesser marks are prescribed as sufficient for SC/ST or extra marks are added to give them an advantage: the regarding is one more method of boosting the chances of selection of these depressed classes.
27. In Comptroller and Auditor General's case, supra, the Apex Court has held that granting of relaxation of standard in the case of SC/ST standards in qualifying examination for promotion to higher grades was permissible under Article 16(4) of the Constitution though that amounts to giving a treatment different to SC/ST candidates from that given to others in matters relating to employment or appointment to any office under the State. It has further been held that it does not amount to violating the fundamental right to equality of opportunity for all citizens in such matters guaranteed by Article 16(1) of the Constitution.
28. In P and T SC/ST Employees' Welfare Association's case, supra, it has been held by the Supreme Court that (paragraph 5).-
'One of the methods by which the Government can confer some extra advantage on the employees belonging to the SC/ST in cases of this nature where promotion to higher cadre is a time-bound one is to direct that the employees belonging to the SC/ST may be promoted to the higher cadre on completion of a shorter period of service than what is prescribed for Others', (para 5)
29. In the case of National Federation of State Bank of India v Union of India, the Supreme Court held the Office Memorandum providing for certain concessions and facilities to SC/ST officers in their promotions not only from Class I to Class II but also within Class I as being valid and permissible under Article 16(4).
30. In a nine-Bench judgment of the supreme Court in the case of the Indra Sawhney, supra, the Court has dealt with various facets of reservation under Article 16(4). Paragraph 58 of the judgment is relevant for our propose. It reads thus.-
'The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression 'reservation'. Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are 'any provision for the reservation of appointments or posts'. The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration-the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour. The other type of measure is the one in Thomas case, supra'.
31. It has further been held in the said Indra Sawhney's case, supra, that.-
'In our opinion, therefore, where the State finds it necessary for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservations can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if certain preference or a concession is provided in their favour. This can be done under clause (4) itself. In this sense, clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of 'the backward class of citizens'. Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classi-fication or special treatment is permissible in their favour apart from or outside of clause (4) of Article 16'.
32. In paragraph 9 of the S. Vinod Kumar's case, supra, the Supreme Court has considered the extent and nature of concessions/exemptions which can be granted for making the reservations effective and meaningful but have further held that no such concession and relaxations can be granted in matter of promotions. The said paragraph reads as under.-
'9. To the same effect are the observation of Sawant, J., in Para 549 which we have extracted hereinabove. The learned Judge also speaks of: (SCC page 566)
'concessions/exemptions, etc., such as relaxation of age, extra attempts for passing the examinations, extra training period, etc'.
The other learned Judges in their separate opinions have merely held that reservation in the matter of promotions is not permissible under Article 16(4). They have not separately dealt with the concessions and facilities which can be extended to these reserved categories. [Of course, one of the learned Judges who constituted the majority, Ahmadi, J., (as the learned Chief Justice then was) was of the opinion that it was not necessary to consider in that case the question whether Article 16(4) permits reservation in the matter of promotions.] In the light of the fact that Pandian and Sawant, JJ., have agreed with the conclusions arrived at in the majority judgment and in the absence of any contrary proposition in the opinion that so far as the provision for lower qualifying marks or lesser level of evaluation in the matter of promotion is concerned, it is not permissible under Article 16(4) in view of the command contained in Article 335 of the Constitution. In other words, even if it is assumed for the sake of argument that reservation is permitted by Article 16(4) in the matter of promotions, a provision for lower qualifying marks or lesser level of evaluation is not permissible in the matter of promotions, by virtue of Article 335. If so, there can be no question of such a provision or 'concession', as it is called by the Tribunal, being saved by the declaration in para 829 of the said judgment'.
33. From a review of the above pronouncements of the Supreme Court, it has to be concluded that under the scheme of equality envisaged under the head 'right to equality' in Part III of the Constitution of India comprising of Articles 14 to 18, according to the law as it stands on the date, relaxations, concessions/exemptions and preferences can be given to the backward class of citizens only if such concessions/exemptions have a proximity or reasonable nexus to the grant of reservation in initial appointments. No such concessions/exemptions are permissible in the matters of granting promotion. Further, such concessions, exemptions, etc., cannot be absolute in nature so as to create disparity between employees situated similarly in the same cadres like giving of higher pay scale or better service conditions.
34. For the reasons aforesaid, in my opinion, the impugned resolution passed by the Governing Council of the Institute is Constitutionally invalid and accordingly, quashed. Before parting, I may refer to the judgment in All India Indian Overseas Bank SC / ST Employees' Association v Union of India, wherein after considering the provisions of Article 338 in the context of the powers exercisable by the National Commission for SC/ST, in Paragraph 10, it has been held by the Supreme Court that.-
'Interestingly, here, in clause (8) of Article 338, the words used are 'The Commission shall. . . . have all the powers of the Civil Court trying a suit'. But the words 'all the powers of a Civil Court' have to be exercised 'while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5)'. All the procedural powers of a Civil Court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a Civil Court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution'.
35. In the above view of the matter, the Commission ought not to have made any recommendation to the Institute as has been done under Annexure-C requiring compliance. Anyhow, despite the making thereof, the said recommendations have no binding force and therefore, it was not imperative on the part of the Governing Council of the Institute to carry out the same.
36. For the said reasons, both the writ petitions stand allowed in part to the extent they have impugned the respective clauses of the impugned Resolution XII of the Council. Parties to bear their own costs.