SC/ST - relaxing standards in departmental competitive examinations and in departmental confirmation examinations. - Constitutional validity of Art. 16(4) of Indian Constitution - Validity of Office Memorandum being No. 36012/23/96-Estt.(Res) dated 22.7.1997 with drawing benefits conferred on ST/SC employees in departmental and promotional examinations against the to earlier O.M. and against to the provsio of Art. 16(4) - Apex court held that to undo the judgment in Indra Sawhney, Art.16(4) constitutional amendment was taken place and the judgement in S. Vinod Kumar is per incuriam as it has not dealt with Art.16(4) and is based on Indra Sawhney judgment and further held that Kuldeep Singh is concerned, we find that the matter was decided by this Court having regard to the constitutional provision contained in Article 16(4A). The view
taken by this Court in Kuldeep Singh is in accord with constitutional scheme articulated in Article 16(4A). and further held that It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not
lead to excursiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely -The conclusions recorded by the Constitution Bench in M. Nagaraj are also relevant and Subject to the above, we uphold the constitutional validity of theConstitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 andthe Constitution (Eighty-fifth Amendment) Act, 2001. and further held that We are in respectful agreement with the decision in Kuldeep Singh and approve the same. Ordinarily, we would have sent the matter to the Regular Bench for disposal of the matter but having regard to the nature of controversy and the fact that the Central Administrative Tribunal, Delhi (for short “the Tribunal”) has followed S. Vinod Kumar1 which is not a good law and resultantly 1997 O.M. is also illegal, in our view, the agony of the appellants need not be prolonged as they are entitled to the reliefs. Consequently, civil appeals are allowed.=
Whether the Office Memorandum being No. 36012/23/96-Estt.(Res) dated 22.7.1997 issued by Department of Personnel which cancelled the earlier Office Memorandum being O.M. No. 8/12/69-Estt.(SCT) dt.23-12-1970 relaxing standards in the case of Scheduled Castes/Tribes candidates in departmental competitive examinations and in departmental confirmation examinations.- is valid ? =
Division Bench referred the matter to three bench judges - which in turn referred to the full bench =
Insofar as Kuldeep Singh2 is
concerned, we find that the matter was decided by this Court having regard
to the constitutional provision contained in Article 16(4A). The view
taken by this Court in Kuldeep Singh3 is in accord with constitutional
scheme articulated in Article 16(4A). On the other hand, in S. Vinod
Kumar1, the Court failed to consider Article 16(4A). As a matter of fact,
Article 16(4A) was inserted in the Constitution to undo the observations
in Indra Sawhney2 that there can not be dilution of standards in matters
of promotion.=
On 23.12.1970 (1970 O.M.), the Department of Personnel
issued Office Memorandum being O.M. No. 8/12/69-Estt.(SCT) relaxing
standards in the case of Scheduled Castes/Tribes candidates in
departmental competitive examinations and in departmental confirmation
examinations. The said O.M. remained operative for about 17 years until
O.M. No. 36012/23/96-Estt.(Res) dated 22.7.1997 was issued whereby the
instructions contained in 1970 O.M. were withdrawn. =
the Central Secretariat Service Section
Officers' Grade/Stenographers' Grade 'B (Limited Departmental Competitive
Examination) Regulations, 1964 (for short “1964 Regulations”) were amended
by Central Secretariat Service Section Officers' Grade/Stenographers' Grade
'B (Limited Departmental Competitive Examination) Amendment Regulations,
1998 (for short “1998 Regulations”). - suitably -
basing on the judgment of Apex court In S. Vinod Kumar1, this Court relying upon Indra Sawhney2 held that provision for lower qualifying marks/standard of evaluation was not
permissible under Article 16(4) of the Constitution of India in view of
Article 335.Though Article 16(4A) had been brought into Constitution by
the Constitution (Seventy-seventh Amendment) Act, 1995 with effect from
17.6.1995,
In our view, S. Vinod Kumar1 is per incuriam.
4. Moreover by the Constitution (Eighty-second Amendment) Act,
2000, a proviso has been appended to Article 335 of the Constitution with
effect from 8.9.2000.
The proviso reads as follow:
Provided that nothing in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in mattes of
promotion to any class or classes of services or posts in connect with the
affairs of the Union or of a State.=
Nagaraj4 are also relevant and they read as under:
121. The impugned constitutional amendments by which Articles 16(4-A) and
16(4-B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They do not
obliterate any of the constitutional requirements, namely, ceiling limit of
50% (quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and STs
on the other hand as held in Indra Sawhney, the concept of post-based
roster with inbuilt concept of replacement as held in R.K. Sabharwal.=
The State is not bound to make reservation for
SCs/STs in matters of promotions. However, if they wish to exercise their
discretion and make such provision, the State has to collect quantifiable
data showing backwardness of the class and inadequacy of representation of
that class in public employment in addition to compliance with Article 335.
It is made clear that even if the State has compelling reasons, as stated
above, the State will have to see that its reservation provision does not
lead to excursiveness so as to breach the ceiling limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.=
Subject to the above, we uphold the constitutional validity of the
Constitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-
first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act,
2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.=
We are in respectful agreement with the decision in Kuldeep
Singh3 and approve the same. Ordinarily, we would have sent the matter to
the Regular Bench for disposal of the matter but having regard to the
nature of controversy and the fact that the Central Administrative
Tribunal, Delhi (for short “the Tribunal”) has followed S. Vinod Kumar1
which is not a good law and resultantly 1997 O.M. is also illegal, in our
view, the agony of the appellants need not be prolonged as they are
entitled to the reliefs.
11. Consequently, civil appeals are allowed. The impugned order is
set-aside. 1997 O.M. is declared illegal. The respondents are directed to
modify the results in the Section Officers/Stenographers (Grade B/Grade-I)
Limited Departmental Competitive Examination, 1996 by providing for
reservation and extend all consequential reliefs to the appellants, if not
granted so far. No costs.
CHIEF JUSTICE, JAGDISH SINGH KHEHAR, J. CHELAMESWAR, A.K. SIKRI, ROHINTON FALI NARIMAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 6046-6047 OF 2004
| ROHTAS BHANKHAR & OTHERS |...|APPELLANT(s) |
| Versus |
| UNION OF INDIA AND ANOTHER |.. |RESPONDENT(s) |
J U D G M E N T
R.M.LODHA, CJI.
On 23.12.1970 (1970 O.M.), the Department of Personnel
issued Office Memorandum being O.M. No. 8/12/69-Estt.(SCT) relaxing
standards in the case of Scheduled Castes/Tribes candidates in
departmental competitive examinations and in departmental confirmation
examinations. The said O.M. remained operative for about 17 years until
O.M. No. 36012/23/96-Estt.(Res) dated 22.7.1997 was issued whereby the
instructions contained in 1970 O.M. were withdrawn. Thereafter by
Notification dated 30.11.1998, the Central Secretariat Service Section
Officers' Grade/Stenographers' Grade 'B (Limited Departmental Competitive
Examination) Regulations, 1964 (for short “1964 Regulations”) were amended
by Central Secretariat Service Section Officers' Grade/Stenographers' Grade
'B (Limited Departmental Competitive Examination) Amendment Regulations,
1998 (for short “1998 Regulations”). The result of this amendment was that
in 1964 Regulations, Regulation 7, sub-regulation (3) was omitted on and
from 22.7.1997. The explanatory note appended to the above Notification
reads as follows:
In compliance with the Supreme Court's judgment in the case of S. Vinod
Kumar vs. Union of India (JT 1996(8) SC 643), the Central Government
decided to omit the provisions of regulation 7(3) of the Central
Secretariat Service Section Officers' Grade/Stenographers' Grade 'B'
(Limited Departmental Competitive Examination) Regulations, 1964 which
provides for relaxed qualifying standard in favour of the Scheduled Castes
and the Scheduled Tribes candidates to make up the deficiency in the
reserved quota which has been rendered legally invalid and unenforceable.
This is certified that no one is being adversely affected by giving this
amendment retrospective effect.
2. In S. Vinod Kumar1, this Court relying upon Indra Sawhney2 held
that provision for lower qualifying marks/standard of evaluation was not
permissible under Article 16(4) of the Constitution of India in view of
Article 335.
3. Though Article 16(4A) had been brought into Constitution by
the Constitution (Seventy-seventh Amendment) Act, 1995 with effect from
17.6.1995, S. Vinod Kumar1 did not take into consideration this
constitutional provision. In our view, S. Vinod Kumar1 is per incuriam.
4. Moreover by the Constitution (Eighty-second Amendment) Act,
2000, a proviso has been appended to Article 335 of the Constitution with
effect from 8.9.2000. The proviso reads as follow:
Provided that nothing in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in mattes of
promotion to any class or classes of services or posts in connect with the
affairs of the Union or of a State.
5. On 8.10.1999, when special leave petitions, from which these
appeals arise, came up for consideration before a two-Judge Bench, the
Bench first formulated the point for consideration in the matter, viz.,
whether it was permissible for the authorities to fix lesser number of
qualifying marks for reserved candidates in the matter of 'promotion'. The
Bench noticed three judgments of this Court; (1) Indra Sawhney2, (2) S.
Vinod Kumar1 and (3) Kuldeep Singh3 and observed that in Kuldeep Singh3
the Court did not notice the observations of majority as well as
observations of Sawant, J. in Indra Sawhney2, and the matter needed to be
heard by a three-Judge Bench.
6. On 2.12.1999, the matter came up before a three-Judge Bench.
The Bench on that day reiterated what was earlier stated by the two-Judge
Bench in the order dated 08.10.1999 that in Kuldeep Singh3, the Bench had
not referred to the majority decision in Indra Sawheny2. The Bench doubted
the correctness of the decision in Kuldeep Singh3 and referred the matter
to the Constitution Bench. In the reference order, the three-Judge Bench
also noted the decision of this Court in Haridas Parsedia etc. vs. Urmila
Shakya and others (Civil Appeal Nos. 6590-6592 of 1999 etc.) dated
19.11.1999 wherein it was observed that in the case of departmental
promotion examination, which is held exclusively for SCs/STs, there could
be reduction to the extent of 10% in the passing marks. As regards Haridas
Parsedia (supra), the Bench observed that in that case, the observations of
this Court in Indra Sawhney2 wherein it was laid down that there cannot be
dilution of standards in matter of promotion was not noticed.
7. It is important to note here that constitutional validity of
Article 16(4A) came up for consideration before the Constitution Bench in
the case of M. Nagaraj4. In paras 97 to 99 (page 267) of the report, the
Constitution Bench observed:
97. As stated above, clause (4-A) of Article 16 is carved out of clause (4)
of Article 16. Clause (4-A) provides benefit of reservation in promotion
only to SCs and STs. In S. Vinod Kumar v. Union of India this Court held
that relaxation of qualifying marks and standards of evaluation in matters
of reservation in promotion was not permissible under Article 16(4) in view
of Article 335 of the Constitution. This was also the view in Indra
Sawhney.
98. By the Constitution (Eighty-second Amendment) Act, 2000 a proviso was
inserted at the end of Article 335 of the Constitution which reads as under
:
“Provided that nothing in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in matters of
promotion to any class or classes of services or posts in connection with
the affairs of the Union or of a State.”
99. This proviso was added following the benefit of reservation in
promotion conferred upon SCs and STs alone. This proviso was inserted
keeping in mind the judgment of this Court in Vinod Kumar which took the
view that relaxation in matters of reservation in promotion was not
permissible under Article 16(4) in view of the command contained in Article
335. Once a separate category is carved out of clause (4) of Article 16
then that category is being given relaxation in matters of reservation in
promotion. The proviso is confined to SCs and STs alone. The said proviso
is compatible with the scheme of Article 16(4-A).
8. The conclusions recorded by the Constitution Bench in M.
Nagaraj4 are also
relevant and they read as under:
121. The impugned constitutional amendments by which Articles 16(4-A) and
16(4-B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They do not
obliterate any of the constitutional requirements, namely, ceiling limit of
50% (quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and STs
on the other hand as held in Indra Sawhney, the concept of post-based
roster with inbuilt concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling limit of 50%, the concept of creamy
layer and the compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency are all constitutional
requirements without which the structure of equality of opportunity in
Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the
“extent of reservation”. In this regard the State concerned will have to
show in each case the existence of the compelling reasons, namely,
backwardness
inadequacy of representation and overall administrative efficiency before
making provision for reservation. As stated above, the impugned provision
is an enabling provision. The State is not bound to make reservation for
SCs/STs in matters of promotions. However, if they wish to exercise their
discretion and make such provision, the State has to collect quantifiable
data showing backwardness of the class and inadequacy of representation of
that class in public employment in addition to compliance with Article 335.
It is made clear that even if the State has compelling reasons, as stated
above, the State will have to see that its reservation provision does not
lead to excursiveness so as to breach the ceiling limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to the above, we uphold the constitutional validity of the
Constitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-
first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act,
2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.
9. We do not think, it is necessary for us to deal with the width
and scope of Article 16(4A) any further. Insofar as Kuldeep Singh2 is
concerned, we find that the matter was decided by this Court having regard
to the constitutional provision contained in Article 16(4A). The view
taken by this Court in Kuldeep Singh3 is in accord with constitutional
scheme articulated in Article 16(4A). On the other hand, in S. Vinod
Kumar1, the Court failed to consider Article 16(4A). As a matter of fact,
Article 16(4A) was inserted in the Constitution to undo the observations
in Indra Sawhney2 that there can not be dilution of standards in matters
of promotion.
10. We are in respectful agreement with the decision in Kuldeep
Singh3 and approve the same. Ordinarily, we would have sent the matter to
the Regular Bench for disposal of the matter but having regard to the
nature of controversy and the fact that the Central Administrative
Tribunal, Delhi (for short “the Tribunal”) has followed S. Vinod Kumar1
which is not a good law and resultantly 1997 O.M. is also illegal, in our
view, the agony of the appellants need not be prolonged as they are
entitled to the reliefs.
11. Consequently, civil appeals are allowed. The impugned order is
set-aside. 1997 O.M. is declared illegal. The respondents are directed to
modify the results in the Section Officers/Stenographers (Grade B/Grade-I)
Limited Departmental Competitive Examination, 1996 by providing for
reservation and extend all consequential reliefs to the appellants, if not
granted so far. No costs.
.......................CJI.
(R.M. LODHA)
.........................J.
(JAGDISH SINGH KHEHAR)
.........................J.
(J. CHELAMESWAR)
.........................J.
(A.K. SIKRI)
NEW DELHI; .........................J.
JULY 15, 2014. (ROHINTON FALI NARIMAN)
ITEM NO.502 COURT NO.1 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 6046-6047/2004
ROHTAS BHANKHAR & ORS Appellant(s)
VERSUS
U.O.I. & ANR Respondent(s)
Date : 15/07/2014 These appeals were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE J. CHELAMESWAR
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Appellant(s) Dr. Krishan Singh Chauhan,Adv.
Mr. Ajit Kumar Ekka, Adv.
Mr. Ravi Prakash, Adv.
Mr. Chand Kiran, Adv.
Mr. Murari Lal, Adv.
For Respondent(s) Mr. Ranjit Kumar, SG
Mr. P.S. Patwalia, ASG
Mr. A. Mariarputham, Sr. Adv.
Ms. V. Mohana, Adv.
Ms. Binu Tamta, Adv. Adv.
Mr. D.L. Chidananda, Adv. for
Ms. Sushma Suri, Adv.
UPON hearing counsel the Court made the following
O R D E R
Civil Appeals are allowed in terms of reportable judgment.
|(PARDEEP KUMAR) | |(RENU DIWAN) |
|AR-cum-PS | |COURT MASTER |
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]
1 (1996) 6 SCC 580, S. VINOD KUMAR & ANOTHER VS. UNION OF INDIA
AND OTHERS
2 1992 Supp (3) SCC 217, INDRA SAWHNEY VS. UNION OF INDIA AND OTHERS
3 (1997) 9 SCC 199, SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T.
CHANDIGARH AND OTHERS VS. KULDEEP SINGH & OTHERS
4 . (2006)8 SCC 212 M. NAGARAJ AND OTHERS VS. UNION OF INDIA AND
OTHERS
taken by this Court in Kuldeep Singh is in accord with constitutional scheme articulated in Article 16(4A). and further held that It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not
lead to excursiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely -The conclusions recorded by the Constitution Bench in M. Nagaraj are also relevant and Subject to the above, we uphold the constitutional validity of theConstitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 andthe Constitution (Eighty-fifth Amendment) Act, 2001. and further held that We are in respectful agreement with the decision in Kuldeep Singh and approve the same. Ordinarily, we would have sent the matter to the Regular Bench for disposal of the matter but having regard to the nature of controversy and the fact that the Central Administrative Tribunal, Delhi (for short “the Tribunal”) has followed S. Vinod Kumar1 which is not a good law and resultantly 1997 O.M. is also illegal, in our view, the agony of the appellants need not be prolonged as they are entitled to the reliefs. Consequently, civil appeals are allowed.=
Whether the Office Memorandum being No. 36012/23/96-Estt.(Res) dated 22.7.1997 issued by Department of Personnel which cancelled the earlier Office Memorandum being O.M. No. 8/12/69-Estt.(SCT) dt.23-12-1970 relaxing standards in the case of Scheduled Castes/Tribes candidates in departmental competitive examinations and in departmental confirmation examinations.- is valid ? =
Division Bench referred the matter to three bench judges - which in turn referred to the full bench =
Insofar as Kuldeep Singh2 is
concerned, we find that the matter was decided by this Court having regard
to the constitutional provision contained in Article 16(4A). The view
taken by this Court in Kuldeep Singh3 is in accord with constitutional
scheme articulated in Article 16(4A). On the other hand, in S. Vinod
Kumar1, the Court failed to consider Article 16(4A). As a matter of fact,
Article 16(4A) was inserted in the Constitution to undo the observations
in Indra Sawhney2 that there can not be dilution of standards in matters
of promotion.=
On 23.12.1970 (1970 O.M.), the Department of Personnel
issued Office Memorandum being O.M. No. 8/12/69-Estt.(SCT) relaxing
standards in the case of Scheduled Castes/Tribes candidates in
departmental competitive examinations and in departmental confirmation
examinations. The said O.M. remained operative for about 17 years until
O.M. No. 36012/23/96-Estt.(Res) dated 22.7.1997 was issued whereby the
instructions contained in 1970 O.M. were withdrawn. =
the Central Secretariat Service Section
Officers' Grade/Stenographers' Grade 'B (Limited Departmental Competitive
Examination) Regulations, 1964 (for short “1964 Regulations”) were amended
by Central Secretariat Service Section Officers' Grade/Stenographers' Grade
'B (Limited Departmental Competitive Examination) Amendment Regulations,
1998 (for short “1998 Regulations”). - suitably -
basing on the judgment of Apex court In S. Vinod Kumar1, this Court relying upon Indra Sawhney2 held that provision for lower qualifying marks/standard of evaluation was not
permissible under Article 16(4) of the Constitution of India in view of
Article 335.Though Article 16(4A) had been brought into Constitution by
the Constitution (Seventy-seventh Amendment) Act, 1995 with effect from
17.6.1995,
In our view, S. Vinod Kumar1 is per incuriam.
4. Moreover by the Constitution (Eighty-second Amendment) Act,
2000, a proviso has been appended to Article 335 of the Constitution with
effect from 8.9.2000.
The proviso reads as follow:
Provided that nothing in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in mattes of
promotion to any class or classes of services or posts in connect with the
affairs of the Union or of a State.=
This proviso was added following the benefit of reservation in
promotion conferred upon SCs and STs alone. This proviso was inserted
keeping in mind the judgment of this Court in Vinod Kumar which took the
view that relaxation in matters of reservation in promotion was not
permissible under Article 16(4) in view of the command contained in Article
335. Once a separate category is carved out of clause (4) of Article 16
then that category is being given relaxation in matters of reservation in
promotion. The proviso is confined to SCs and STs alone. The said proviso
is compatible with the scheme of Article 16(4-A).=
The conclusions recorded by the Constitution Bench in M.promotion conferred upon SCs and STs alone. This proviso was inserted
keeping in mind the judgment of this Court in Vinod Kumar which took the
view that relaxation in matters of reservation in promotion was not
permissible under Article 16(4) in view of the command contained in Article
335. Once a separate category is carved out of clause (4) of Article 16
then that category is being given relaxation in matters of reservation in
promotion. The proviso is confined to SCs and STs alone. The said proviso
is compatible with the scheme of Article 16(4-A).=
Nagaraj4 are also relevant and they read as under:
121. The impugned constitutional amendments by which Articles 16(4-A) and
16(4-B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They do not
obliterate any of the constitutional requirements, namely, ceiling limit of
50% (quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and STs
on the other hand as held in Indra Sawhney, the concept of post-based
roster with inbuilt concept of replacement as held in R.K. Sabharwal.=
The State is not bound to make reservation for
SCs/STs in matters of promotions. However, if they wish to exercise their
discretion and make such provision, the State has to collect quantifiable
data showing backwardness of the class and inadequacy of representation of
that class in public employment in addition to compliance with Article 335.
It is made clear that even if the State has compelling reasons, as stated
above, the State will have to see that its reservation provision does not
lead to excursiveness so as to breach the ceiling limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.=
Subject to the above, we uphold the constitutional validity of the
Constitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-
first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act,
2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.=
We are in respectful agreement with the decision in Kuldeep
Singh3 and approve the same. Ordinarily, we would have sent the matter to
the Regular Bench for disposal of the matter but having regard to the
nature of controversy and the fact that the Central Administrative
Tribunal, Delhi (for short “the Tribunal”) has followed S. Vinod Kumar1
which is not a good law and resultantly 1997 O.M. is also illegal, in our
view, the agony of the appellants need not be prolonged as they are
entitled to the reliefs.
11. Consequently, civil appeals are allowed. The impugned order is
set-aside. 1997 O.M. is declared illegal. The respondents are directed to
modify the results in the Section Officers/Stenographers (Grade B/Grade-I)
Limited Departmental Competitive Examination, 1996 by providing for
reservation and extend all consequential reliefs to the appellants, if not
granted so far. No costs.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41774
CHIEF JUSTICE, JAGDISH SINGH KHEHAR, J. CHELAMESWAR, A.K. SIKRI, ROHINTON FALI NARIMAN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 6046-6047 OF 2004
| ROHTAS BHANKHAR & OTHERS |...|APPELLANT(s) |
| Versus |
| UNION OF INDIA AND ANOTHER |.. |RESPONDENT(s) |
J U D G M E N T
R.M.LODHA, CJI.
On 23.12.1970 (1970 O.M.), the Department of Personnel
issued Office Memorandum being O.M. No. 8/12/69-Estt.(SCT) relaxing
standards in the case of Scheduled Castes/Tribes candidates in
departmental competitive examinations and in departmental confirmation
examinations. The said O.M. remained operative for about 17 years until
O.M. No. 36012/23/96-Estt.(Res) dated 22.7.1997 was issued whereby the
instructions contained in 1970 O.M. were withdrawn. Thereafter by
Notification dated 30.11.1998, the Central Secretariat Service Section
Officers' Grade/Stenographers' Grade 'B (Limited Departmental Competitive
Examination) Regulations, 1964 (for short “1964 Regulations”) were amended
by Central Secretariat Service Section Officers' Grade/Stenographers' Grade
'B (Limited Departmental Competitive Examination) Amendment Regulations,
1998 (for short “1998 Regulations”). The result of this amendment was that
in 1964 Regulations, Regulation 7, sub-regulation (3) was omitted on and
from 22.7.1997. The explanatory note appended to the above Notification
reads as follows:
In compliance with the Supreme Court's judgment in the case of S. Vinod
Kumar vs. Union of India (JT 1996(8) SC 643), the Central Government
decided to omit the provisions of regulation 7(3) of the Central
Secretariat Service Section Officers' Grade/Stenographers' Grade 'B'
(Limited Departmental Competitive Examination) Regulations, 1964 which
provides for relaxed qualifying standard in favour of the Scheduled Castes
and the Scheduled Tribes candidates to make up the deficiency in the
reserved quota which has been rendered legally invalid and unenforceable.
This is certified that no one is being adversely affected by giving this
amendment retrospective effect.
2. In S. Vinod Kumar1, this Court relying upon Indra Sawhney2 held
that provision for lower qualifying marks/standard of evaluation was not
permissible under Article 16(4) of the Constitution of India in view of
Article 335.
3. Though Article 16(4A) had been brought into Constitution by
the Constitution (Seventy-seventh Amendment) Act, 1995 with effect from
17.6.1995, S. Vinod Kumar1 did not take into consideration this
constitutional provision. In our view, S. Vinod Kumar1 is per incuriam.
4. Moreover by the Constitution (Eighty-second Amendment) Act,
2000, a proviso has been appended to Article 335 of the Constitution with
effect from 8.9.2000. The proviso reads as follow:
Provided that nothing in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in mattes of
promotion to any class or classes of services or posts in connect with the
affairs of the Union or of a State.
5. On 8.10.1999, when special leave petitions, from which these
appeals arise, came up for consideration before a two-Judge Bench, the
Bench first formulated the point for consideration in the matter, viz.,
whether it was permissible for the authorities to fix lesser number of
qualifying marks for reserved candidates in the matter of 'promotion'. The
Bench noticed three judgments of this Court; (1) Indra Sawhney2, (2) S.
Vinod Kumar1 and (3) Kuldeep Singh3 and observed that in Kuldeep Singh3
the Court did not notice the observations of majority as well as
observations of Sawant, J. in Indra Sawhney2, and the matter needed to be
heard by a three-Judge Bench.
6. On 2.12.1999, the matter came up before a three-Judge Bench.
The Bench on that day reiterated what was earlier stated by the two-Judge
Bench in the order dated 08.10.1999 that in Kuldeep Singh3, the Bench had
not referred to the majority decision in Indra Sawheny2. The Bench doubted
the correctness of the decision in Kuldeep Singh3 and referred the matter
to the Constitution Bench. In the reference order, the three-Judge Bench
also noted the decision of this Court in Haridas Parsedia etc. vs. Urmila
Shakya and others (Civil Appeal Nos. 6590-6592 of 1999 etc.) dated
19.11.1999 wherein it was observed that in the case of departmental
promotion examination, which is held exclusively for SCs/STs, there could
be reduction to the extent of 10% in the passing marks. As regards Haridas
Parsedia (supra), the Bench observed that in that case, the observations of
this Court in Indra Sawhney2 wherein it was laid down that there cannot be
dilution of standards in matter of promotion was not noticed.
7. It is important to note here that constitutional validity of
Article 16(4A) came up for consideration before the Constitution Bench in
the case of M. Nagaraj4. In paras 97 to 99 (page 267) of the report, the
Constitution Bench observed:
97. As stated above, clause (4-A) of Article 16 is carved out of clause (4)
of Article 16. Clause (4-A) provides benefit of reservation in promotion
only to SCs and STs. In S. Vinod Kumar v. Union of India this Court held
that relaxation of qualifying marks and standards of evaluation in matters
of reservation in promotion was not permissible under Article 16(4) in view
of Article 335 of the Constitution. This was also the view in Indra
Sawhney.
98. By the Constitution (Eighty-second Amendment) Act, 2000 a proviso was
inserted at the end of Article 335 of the Constitution which reads as under
:
“Provided that nothing in this article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks in any examination or
lowering the standards of evaluation, for reservation in matters of
promotion to any class or classes of services or posts in connection with
the affairs of the Union or of a State.”
99. This proviso was added following the benefit of reservation in
promotion conferred upon SCs and STs alone. This proviso was inserted
keeping in mind the judgment of this Court in Vinod Kumar which took the
view that relaxation in matters of reservation in promotion was not
permissible under Article 16(4) in view of the command contained in Article
335. Once a separate category is carved out of clause (4) of Article 16
then that category is being given relaxation in matters of reservation in
promotion. The proviso is confined to SCs and STs alone. The said proviso
is compatible with the scheme of Article 16(4-A).
8. The conclusions recorded by the Constitution Bench in M.
Nagaraj4 are also
relevant and they read as under:
121. The impugned constitutional amendments by which Articles 16(4-A) and
16(4-B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the
compelling reasons, namely, backwardness and inadequacy of representation
which enables the States to provide for reservation keeping in mind the
overall efficiency of the State administration under Article 335. These
impugned amendments are confined only to SCs and STs. They do not
obliterate any of the constitutional requirements, namely, ceiling limit of
50% (quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs on one hand and SCs and STs
on the other hand as held in Indra Sawhney, the concept of post-based
roster with inbuilt concept of replacement as held in R.K. Sabharwal.
122. We reiterate that the ceiling limit of 50%, the concept of creamy
layer and the compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency are all constitutional
requirements without which the structure of equality of opportunity in
Article 16 would collapse.
123. However, in this case, as stated above, the main issue concerns the
“extent of reservation”. In this regard the State concerned will have to
show in each case the existence of the compelling reasons, namely,
backwardness
inadequacy of representation and overall administrative efficiency before
making provision for reservation. As stated above, the impugned provision
is an enabling provision. The State is not bound to make reservation for
SCs/STs in matters of promotions. However, if they wish to exercise their
discretion and make such provision, the State has to collect quantifiable
data showing backwardness of the class and inadequacy of representation of
that class in public employment in addition to compliance with Article 335.
It is made clear that even if the State has compelling reasons, as stated
above, the State will have to see that its reservation provision does not
lead to excursiveness so as to breach the ceiling limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.
124. Subject to the above, we uphold the constitutional validity of the
Constitution(Seventy-Seventh (Amendment) Act;1995: the Constitution (Eighty-
first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act,
2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.
9. We do not think, it is necessary for us to deal with the width
and scope of Article 16(4A) any further. Insofar as Kuldeep Singh2 is
concerned, we find that the matter was decided by this Court having regard
to the constitutional provision contained in Article 16(4A). The view
taken by this Court in Kuldeep Singh3 is in accord with constitutional
scheme articulated in Article 16(4A). On the other hand, in S. Vinod
Kumar1, the Court failed to consider Article 16(4A). As a matter of fact,
Article 16(4A) was inserted in the Constitution to undo the observations
in Indra Sawhney2 that there can not be dilution of standards in matters
of promotion.
10. We are in respectful agreement with the decision in Kuldeep
Singh3 and approve the same. Ordinarily, we would have sent the matter to
the Regular Bench for disposal of the matter but having regard to the
nature of controversy and the fact that the Central Administrative
Tribunal, Delhi (for short “the Tribunal”) has followed S. Vinod Kumar1
which is not a good law and resultantly 1997 O.M. is also illegal, in our
view, the agony of the appellants need not be prolonged as they are
entitled to the reliefs.
11. Consequently, civil appeals are allowed. The impugned order is
set-aside. 1997 O.M. is declared illegal. The respondents are directed to
modify the results in the Section Officers/Stenographers (Grade B/Grade-I)
Limited Departmental Competitive Examination, 1996 by providing for
reservation and extend all consequential reliefs to the appellants, if not
granted so far. No costs.
.......................CJI.
(R.M. LODHA)
.........................J.
(JAGDISH SINGH KHEHAR)
.........................J.
(J. CHELAMESWAR)
.........................J.
(A.K. SIKRI)
NEW DELHI; .........................J.
JULY 15, 2014. (ROHINTON FALI NARIMAN)
ITEM NO.502 COURT NO.1 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 6046-6047/2004
ROHTAS BHANKHAR & ORS Appellant(s)
VERSUS
U.O.I. & ANR Respondent(s)
Date : 15/07/2014 These appeals were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE J. CHELAMESWAR
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Appellant(s) Dr. Krishan Singh Chauhan,Adv.
Mr. Ajit Kumar Ekka, Adv.
Mr. Ravi Prakash, Adv.
Mr. Chand Kiran, Adv.
Mr. Murari Lal, Adv.
For Respondent(s) Mr. Ranjit Kumar, SG
Mr. P.S. Patwalia, ASG
Mr. A. Mariarputham, Sr. Adv.
Ms. V. Mohana, Adv.
Ms. Binu Tamta, Adv. Adv.
Mr. D.L. Chidananda, Adv. for
Ms. Sushma Suri, Adv.
UPON hearing counsel the Court made the following
O R D E R
Civil Appeals are allowed in terms of reportable judgment.
|(PARDEEP KUMAR) | |(RENU DIWAN) |
|AR-cum-PS | |COURT MASTER |
[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]
1 (1996) 6 SCC 580, S. VINOD KUMAR & ANOTHER VS. UNION OF INDIA
AND OTHERS
2 1992 Supp (3) SCC 217, INDRA SAWHNEY VS. UNION OF INDIA AND OTHERS
3 (1997) 9 SCC 199, SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T.
CHANDIGARH AND OTHERS VS. KULDEEP SINGH & OTHERS
4 . (2006)8 SCC 212 M. NAGARAJ AND OTHERS VS. UNION OF INDIA AND
OTHERS
