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PETITIONER:

S.VINOD KUMAR AND ANR.

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 01/10/1996

BENCH:

B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P.JEEVAN REDDY,J.

Leave granted. Heard the counsel for the parties.

In Indra Sawhney etc. v. Union & Ors.etc. [1992

Suppl.(3) S.C.C.215], this Court had, while declaring that

Article 16(4) does not contemplate or permit reservation in

the matter of promotions, declared that for the several

reasons stated therein, the reservations already made shall

continue for a period of five years from the date of the

said judgment. In Para 829 [at Page 747] of the majority

judgment, it was directed that "our decision on this

question shall operate only prospectively and shall not

affect promotions already made, whether on temporary,

officiating or regular/permanent basis. It is further

directed that wherever reservations are already provided in

the matter of promotion-be it Central Services or State

Services, or for that matter services under any corporation,

authority or body falling under the definition of 'State' in

Article 12-such reservations shall continue in operation for

a period of five years from this day". Then, in the next

para, Para 831, the majority judgment made the following

observations:

"We must also make it clear that it

would not be impermissible for the

State to extend concessions and

relaxations to members of reserved

categories in the matter of

promotion without compromising the

efficiency of the administration.

The relaxation concerned in State

of Kerala v. N.M.Thomas (1976) 2

SCC 310, and the concessions namely

carrying forward of vacancies and

provisions for in-service

coaching/training in Akhil

Bharatiya Soshit Karamchari Sangh

v. Union of India, (1981) 1 SCC

246, are instances of such

concessions and relaxations.

However, it would not be

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permissible to prescribe lower

qualifying marks or a lesser level

of evaluation for the members of

reserved categories since that

would compromise the efficiency of

administration. We reiterate that

while it may be permissible to

prescribe a reasonably lesser

qualifying marks or evaluation for

the OBCs, SCs and STs - consistent

with the efficiency of

administration and the nature of

duties attaching to the office

concerned - in the matter of direct

recruitment, such a course would

not be permissible in the matter of

promotions for the reasons recorded

hereinabove."

Sawant, J. expressed himself on this aspect in Para

549, which reads:

"There is no doubt that the meaning

of the various expressions used in

Article 16, viz., 'matters relating

to employment or appointment to any

office', and 'appointments or

posts' cannot be whittled down to

mean only initial recruitment and

hence the normal rule of the

service jurisprudence of the loss

of the birth marks cannot be

applied to the appointments made

under the article. However, as

pointed out earlier, the exclusive

quota is not the only form of

reservation and where the resort to

it such as in the promotions,

results in the inefficiency of the

administration, it is illegal. But

that is not the end of the road nor

is a backward class employee

helpless on account of its absence.

Once he gets an equal opportunity

to show his talent by coming into

the mainstream, all he needs is the

facility to achieve equal results.

The facility can be and must be

given to him in the form of

concessions, exemptions etc. such

as relaxation of age, extra

attempts for passing the

examinations, extra training period

etc. along with the machinery for

impartial assessment as stated

above. Such facilities when given

are also a part of the reservation

programme and do not fall foul of

the requirement of the efficiency

of the administration. Such

facilities, however, are imperative

if, not only the equality of

opportunity but also the equality

of results is to be achieved which

is the true meaning of the right to

equality."

The question before the Madras State Administrative

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Tribunal was whether the saving of reservations provided in

Para 829 takes within its purview the provisions providing

for lesser qualifying marks in the qualifying examination

for promotion. The Tribunal held that inasmuch as the

expression "reservation" provided in Article 16(4) takes

within its fold concessions and facilities including

provision for lesser qualifying marks in the qualifying

examination for promotion, such a provision is also saved by

virtue of the declaration contained in Para 829. The

declaration made by the Tribunal reads thus:

"14. We therefore hold that the

status quo in the matter of

reservations in promotion required

to be maintained by the Supreme

Court for five years, would also

include status quo being maintained

in the matter of prescribing lesser

qualifying marks in the qualifying

examination for promotion, within

which period the authorities could

take the steps indicated in the

judgment.

15. In view of what is stated

above, we hold that the impugned

Memorandum cannot be assailed and

are legally sustainable."

The memorandum referred to in Para 15 aforesaid is the

Memorandum dated January 21, 1977 which provided that where

the promotions are made on the basis of seniority subject to

fitness and where a qualifying examination is held to

determine the fitness of the candidates for such promotions,

suitable relaxation in the qualifying standard in such

examination should be made for Scheduled Castes/Scheduled

Tribes to the extent of the relaxation to be decided on each

occasion, whenever such examination was held, taking into

account all relevant factors including the number of

vacancies reserved, performance of Scheduled Caste/Scheduled

Tribe candidates as well as the general candidates in that

examination, the minimum standard of fitness for appointment

to the post and the overall strength of the cadre and that

of the Scheduled Caste/Scheduled Tribe in that cadre

[Purport of the Office Memorandum taken from Para-2 of the

Tribunal's judgment]. Pursuant to the said Office

Memorandum, the Government of Tamil Nadu has been issuing

orders from time to time providing lesser qualifying marks

for passing the qualifying examination prescribed for

promotion, in the case of Scheduled Caste/Scheduled Tribe.

The precise question raised before the Tribunal was

whether the said provision is saved by the declaration

contained in Para 829 of this Court's judgment.

Having heard the counsel for the parties and considered

the various opinions in Indra Sawhney, we are of the opinion

that the very posing of the question as well as the answer

given by the Tribunal are erroneous and unsustainable.

According to Para 831, extracted hereinabove, while it

is "permissible to prescribe a reasonably lesser qualifying

marks or evaluation for the OBCs, SCs and STs - consistent

with the efficiency of administration and the nature of

duties attaching to the office concerned - in the matter of

direct requirement, such a course would not be permissible

in the matter of promotion for the reasons recorded

hereinabove". At the same time, it is held that "it would

not be impermissible for the State to extend concessions and

relaxations to members of reserved categories of the

administration. The relaxation concerned in Thomas and the

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concessions namely carrying forward of vacancies and

provisions for in-service coaching/training in Karamchari

Sangh are instances of such concessions and relaxations.

However, it would not be permissible to prescribe lower

qualifying marks or a lesser level of evaluation for the

members of reserved categories since that would compromise

the efficiency of administration." The relaxation concerned

in State of Kerala v N.M. Thomas [1976 (2) S.C.C.310] is

also set out in Para 713 of the majority judgment. The

concession was providing "temporary exemption to members

already in service belonging to any of the Scheduled Castes

or Scheduled Tribes from passing all tests (unified, special

or departmental test) for a period of two years..... They

were required to pass the tests within the period of

exemption." So far as the concessions in Akhil Bharatiya

Soshit Karamchari Sangh v. Union of India [1981 (1)

S.C.C.246] are concerned, they are specified in Para 831

itself as referring to carrying forward vacancies and

provisions for in-service coaching/training. It is thus

clear from a reading of Para 831 that so far as promotions

are concerned, it is not permissible to provide lesser

qualifying marks of evaluation in favour of OBCs/SCs/STs

since that would compromise the efficiency of

administration, while the same can be provided in the matter

of direct recruitment. So far as promotions are concerned

the only provision permitted other than the provision for

reservation is providing the concessions and reservations

like the ones provided in Thomas and Karamchari Sangh, which

do not take in provision for lower qualifying marks or a

lesser level of evaluation.

To the same effect are the observations of Sawant,J. in

Para 549, which we have extracted hereinabove. The learned

Judge also speaks of "concessions/exemptions etc. such as

relaxation of age, extra attempts for passing the

examination, 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 of any other learned Judge, it

must be held that the law on this question is the one

declared in Para 831. We are, therefore, of 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.

The learned counsel for the parties referred to certain

decisions of this Court but, in our opinion, it is wholly

unnecessary to refer to them since none of them deal with

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the question at issue.

The appeal is accordingly allowed with the above

clarifications. The order of the Tribunal is set aside. No

costs