2014 JTR(SC) 525
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SUPREME COURT OF INDIA
R.M. LODHA, CJI., JAGDISH SINGH KHEHAR, J. CHELAMESWAR, A.K. SIKRI, ROHINTON FALI NARIMAN, JJ.
Rohtas Bhankhar & Others – Appellants
Vs.
Union of India and another – Respondents
[Civil Appeal Nos. 6046-6047 of 2004]
Decided On : 15-07-2014
IMPORTANT POINT
1970 O.M. relaxing standards in the case of Scheduled Castes/Tribes candidates in departmental competitive examinations and in departmental confirmation examinations was valid. 1997 OM withdrawing the 1970 OM is illegal.
Act Referred :CONSTITUTION OF INDIA : Art.16(4), Art.16(4)(a), Art.335
(A) The constitutional provisions referred to, namely Article 16(4), Article 16(4)(a), and Article 335, govern state action concerning reservation and equality of opportunity in public employment. Article 16(4) permits the state to make provisions for reservation in favor of socially and educationally backward classes of citizens, while Article 16(4A), inserted by the 77th Amendment, specifically enables reservation in promotion for Scheduled Castes and Scheduled Tribes. Article 335 mandates that the claims of Scheduled Castes and Scheduled Tribes be balanced with the need for administrative efficiency, and any relaxation in qualifying standards must not derogate from this principle. The impugned Office Memorandum of 1997 withdrew earlier relaxed standards, implementing the mandate of this Court in S. Vinod Kumar that lower qualifying marks for reservation in promotion under Article 16(4) are impermissible, and the consequential amendment to the 1964 Regulations omitted the offending provisions. The subsequent amendments to the 1964 Regulations and the validation of the 1997 Office Memorandum are predicated on the framework laid down in this line of jurisprudence, read with the proviso to Article 335 introduced by the 82nd Amendment, which expressly permits relaxation in qualifying marks or evaluation standards for reservation in promotion for SCs and STs.
(B) The core legal principles are: (i) reservation in promotion for SCs and STs is constitutionally permissible under Article 16(4A) and the proviso to Article 335; (ii) any such reservation must be based on quantifiable data showing backwardness and inadequacy of representation, comply with the 50% ceiling, exclude the creamy layer, and not perpetually extend reservation; (iii) relaxation in qualifying marks or standards of evaluation is not permitted for reservation in promotion under Article 16(4) alone, but is expressly enabled by the constitutional amendments post-Vinod Kumar; and (iv) where compelling state interests and compliance with constitutional safeguards are shown, the state may provide reservation in promotion without breaching administrative efficiency.
Facts of the case:
The Department of Personnel issued an Office Memorandum in 1970 relaxing qualifying standards for Scheduled Castes and Scheduled Tribes in departmental competitive examinations, which remained in force for approximately 17 years. In 1997, this Office Memorandum was withdrawn, and the 1964 Regulations were amended to omit the provision for relaxed standards, following the judgment in S. Vinod Kumar. Later, amendments in 1999 framed the point for consideration regarding permissibility of fixing lower qualifying marks for reserved candidates in promotion. A Constitution Bench ultimately upheld the validity of the constitutional amendments enabling reservation in promotion for SCs and STs and directed the respondents to modify examination results to provide reservation and consequential relief.
Findings of Court:
The Court held that S. Vinod Kumar was per incuriam as it did not consider Article 16(4A). It recognized that the 1997 Office Memorandum was illegal on the basis of S. Vinod Kumar but held that the constitutional amendments validated reservation in promotion for SCs and STs under Article 16(4A) and the proviso to Article 335. The Court emphasized that such reservation must be predicated on compelling state interests, including backwardness and inadequacy of representation, compliance with the 50% ceiling, the creamy layer doctrine, and administrative efficiency, and must not extend indefinitely or undermine the principles of equality of opportunity.
Issues:
Whether it is constitutionally permissible to provide reservation in promotion for Scheduled Castes and Scheduled Tribes, and if so, what are the safeguards and limitations governing such reservation, including the permissibility of relaxing qualifying marks or standards of evaluation.
Ratio Decidendi:
The Constitution Bench reaffirmed that while Article 16(4) does not permit relaxation in qualifying standards for reservation in promotion, Article 16(4A) and the proviso to Article 335 expressly authorize reservation in promotion for SCs and STs, provided the state demonstrates compelling interests, adheres to the 50% ceiling, excludes the creamy layer, and maintains administrative efficiency. The Court directed that the 1997 Office Memorandum be set aside and the results of the examination be modified to extend reservation and consequential relief.
Result:
The civil appeals were allowed, the impugned order was set aside, the 1997 Office Memorandum was declared illegal, and the respondents were directed to modify the examination results to provide reservation for Scheduled Castes and Scheduled Tribes and extend all consequential reliefs.
(A) The constitutional provisions referred to, namely Article 16(4), Article 16(4)(a), and Article 335, govern state action concerning reservation and equality of opportunity in public employment. Article 16(4) permits the state to make provisions for reservation in favor of socially and educationally backward classes of citizens, while Article 16(4A), inserted by the 77th Amendment, specifically enables reservation in promotion for Scheduled Castes and Scheduled Tribes. Article 335 mandates that the claims of Scheduled Castes and Scheduled Tribes be balanced with the need for administrative efficiency, and any relaxation in qualifying standards must not derogate from this principle. The impugned Office Memorandum of 1997 withdrew earlier relaxed standards, implementing the mandate of this Court in S. Vinod Kumar that lower qualifying marks for reservation in promotion under Article 16(4) are impermissible, and the consequential amendment to the 1964 Regulations omitted the offending provisions. The subsequent amendments to the 1964 Regulations and the validation of the 1997 Office Memorandum are predicated on the framework laid down in this line of jurisprudence, read with the proviso to Article 335 introduced by the 82nd Amendment, which expressly permits relaxation in qualifying marks or evaluation standards for reservation in promotion for SCs and STs.
(B) The core legal principles are: (i) reservation in promotion for SCs and STs is constitutionally permissible under Article 16(4A) and the proviso to Article 335; (ii) any such reservation must be based on quantifiable data showing backwardness and inadequacy of representation, comply with the 50% ceiling, exclude the creamy layer, and not perpetually extend reservation; (iii) relaxation in qualifying marks or standards of evaluation is not permitted for reservation in promotion under Article 16(4) alone, but is expressly enabled by the constitutional amendments post-Vinod Kumar; and (iv) where compelling state interests and compliance with constitutional safeguards are shown, the state may provide reservation in promotion without breaching administrative efficiency.
Facts of the case:
The Department of Personnel issued an Office Memorandum in 1970 relaxing qualifying standards for Scheduled Castes and Scheduled Tribes in departmental competitive examinations, which remained in force for approximately 17 years. In 1997, this Office Memorandum was withdrawn, and the 1964 Regulations were amended to omit the provision for relaxed standards, following the judgment in S. Vinod Kumar. Later, amendments in 1999 framed the point for consideration regarding permissibility of fixing lower qualifying marks for reserved candidates in promotion. A Constitution Bench ultimately upheld the validity of the constitutional amendments enabling reservation in promotion for SCs and STs and directed the respondents to modify examination results to provide reservation and consequential relief.
Findings of Court:
The Court held that S. Vinod Kumar was per incuriam as it did not consider Article 16(4A). It recognized that the 1997 Office Memorandum was illegal on the basis of S. Vinod Kumar but held that the constitutional amendments validated reservation in promotion for SCs and STs under Article 16(4A) and the proviso to Article 335. The Court emphasized that such reservation must be predicated on compelling state interests, including backwardness and inadequacy of representation, compliance with the 50% ceiling, the creamy layer doctrine, and administrative efficiency, and must not extend indefinitely or undermine the principles of equality of opportunity.
Issues:
Whether it is constitutionally permissible to provide reservation in promotion for Scheduled Castes and Scheduled Tribes, and if so, what are the safeguards and limitations governing such reservation, including the permissibility of relaxing qualifying marks or standards of evaluation.
Ratio Decidendi:
The Constitution Bench reaffirmed that while Article 16(4) does not permit relaxation in qualifying standards for reservation in promotion, Article 16(4A) and the proviso to Article 335 expressly authorize reservation in promotion for SCs and STs, provided the state demonstrates compelling interests, adheres to the 50% ceiling, excludes the creamy layer, and maintains administrative efficiency. The Court directed that the 1997 Office Memorandum be set aside and the results of the examination be modified to extend reservation and consequential relief.
Result:
The civil appeals were allowed, the impugned order was set aside, the 1997 Office Memorandum was declared illegal, and the respondents were directed to modify the examination results to provide reservation for Scheduled Castes and Scheduled Tribes and extend all consequential reliefs.
PerIncuriam - The judgment held that relaxed qualifying standards for SCs/STs were impermissible under Article 16(4) read with Article 335, but this view was declared per incuriam for failing to consider Article 16(4A).
Reservation - Relied upon for the proposition that relaxation in qualifying marks is not permissible under Article 16(4) in view of Article 335.
Promotion - Approved for holding that relaxation in qualifying marks for SCs/STs in promotions is permissible under Article 16(4A).
Examination - Noted for the observation that in departmental promotion examinations exclusively for SCs/STs, reduction of up to 10% in passing marks is permissible.
ConstitutionalValidity - Relied upon to uphold the validity of Articles 16(4A) and 16(4B) and to confirm that relaxation in qualifying marks is permissible with quantifiable data and compliance with Article 335.
JUDGMENT
R.M.LODHA, CJI. –
1. 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 Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 this Court relying upon Indra Sawhney Vs. Union of India and Others, 1992 Supp (3) SCC 217 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 Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 did not take into consideration this constitutional provision. In our view, S. Vinod Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 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 Sawhney Vs. Union of India and Others, 1992 Supp (3) SCC 217,
(2) S. Vinod Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 and
(3) Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 and observed that in Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 the Court did not notice the observations of majority as well as observations of Sawant, J. in Indra Sawhney Vs. Union of India and Others, 1992 Supp (3) SCC 217, 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 Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199, the Bench had not referred to the majority decision in Indra Sawheny2. The Bench doubted the correctness of the decision in Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 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 Sawhney Vs. Union of India and Others, 1992 Supp (3) SCC 217 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. Nagaraj and Others Vs. Union of India and Others, (2006)8 SCC 212. 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. Nagaraj and Others Vs. Union of India and Others, (2006)8 SCC 212 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 Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 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 Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 is in accord with constitutional scheme articulated in Article 16(4A). On the other hand, in S. Vinod Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580, 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 Sawhney Vs. Union of India and Others, 1992 Supp (3) SCC 217 that there can not be dilution of standards in matters of promotion.
10. We are in respectful agreement with the decision in Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 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 Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 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.