ROHTAS BHANKHAR & ORS.versusUNION OF INDIA & ANR.

                    [2014) 8 S.C.R. 871


               ROHTAS BHANKHAR & ORS.                           A
                             v.
                  UNION OF INDIA & ANR.
           (Civil Appeal Nos.6046-6047 of 2004)
                       JULY 15, 2014
                                                                B
    [R.M. LODHA,CJI, JAGDISH SINGH KHEHAR, J.
    CHELAMESWAR, A.K. SIKRI, R.F. NARIMAN,.JJ.]

      Constitution of India, 1950 - Articles 16(4), 16(4A) and
 335 - Reservation for Promotion - Relaxation of standards of C
 evaluation for the members of reserved category (SC/ST
 candidates) in the departmental competitive examination for
 promotion - Permissibility - In view of judgment in *Vinod
·Kumar case that provisipns for lower qualifying marks!
 standafd of evaluation was contrary to Art. 16(4), State by its D
-rvlemorandum of 1997 withdrew the Memorandum of 1970
 whereby relaxed standard of evaluation was provided -
 Validity of the 1997 Memorandum - Held: 1997 memorandum
 was illegal - Judgment in *Vinod Kumar case was per incuriam
 as the same was passed without taking into consideration E
 provisions uls. 16(4A) brought into by Constitution (Seventy.-
 Seventh Amendment) Act, 1995 - Moreover, a proviso has
 also been appended to Art. 335 by Constitution (Eighty
 Second Amendment) Act, 2000 - Central Secretariat Service
 Section Officers' Grade/Stenographers' Grade 'B (Limited F
 Departmental Competitive Examination) Regulations, 1964
 - Central Secretariat Service Section Officers' Gradel
 Stenographers' Grade 'B ·(Limited Departmental Competitive
.Examination) A'mendment Regulations, 1998.

   . O.M. No. 36012123/96 - Estt. (Res.) dated 22.7.1997        G
was issued Whereby instructions contained in O.M. No.
8/12/69-Estt. (SCT) dated 23.12.1970 were withdrawn
which provided ·relaxing standards in the case of

                             87t                                H
    872       SUPREME COURT REPORTS          [2014] 8 S.C.R.


A Scheduled Castes/Tribes candidates in departmental
  competitive examinations. Accordingly, The Central
  Secretariat Service Section Officers' Grade/
  Stenographers' Grade 'B (Limited Departmental
  Competitive Examination) Regulations, 1964 were
B amended by Central Secretariat Service Section Officers'
  Grade/Stenographers' Grade 'B (Limited Departmental
  Competitive Examination) Amendment Regulations, 1998.

      The Court below relied on Vinod Kumar's case
C wherein it was held that provisions for lower qualifying
  marks/standard of evaluation was not permissible u/s.
  16(4) of the Constitution in view of Article 335 of the
  Constitution. In appeal to this Court, Division Bench
  noticing that Kuldeep Singh's case was passed without
  noticing the Indra Sawhney case and referred the matter
D to a Three-Judge Bench. The matter was further referred
  to the present Constitution Bench, doubting the
  correctness of judgment in Kuldeep Singh's case.

          Allowing the appeals, the Court
E
       HELD: 1. Article 16(4A) was inserted in the
  Constitution to undo the observations in Indra
  Sawhney's case that there can not be dilution of
  standards in matters of promotion. Though Article 16(4A)
F had been brought into Constitution by the Constitutfon
  (Seventy-seventh Amendment) Act, 1995 with effect from
  17 .6.1995, S. Vi nod Kumar's case did not take_ into
  consideration this constitutional provision. Kuldeep
  Singh's case was decided by this Court having regard to
  the· constitutional provision contained in Article 16(4A).
G Therefore, the view taken by this Court in ~uldeep
  Singh's case is in accord with constitutional scheme
  articulated in Article 16(4A). Moreover by the Constitution
  (Eighty-second Amendment) Act, 2000, a proviso has
  been appended to Article 335 of tt1e Constitution wi~h
H
       ROHTAS BHANKHAR v. UNION OF INDIA               873


effect from 8.9.2000. [Paras 3, 4, 9 and 10] [875-C-D; 879- A
D]
     2. The Central Administrative Tribunal has followed
S. Vinod Kumar's case which is not a good law and
resultantly 1997 O.M. is also illegal. The respondents are
                                                           8
directed to modify the results in the Section Officers/
Stenographers (Grade B/Grade-1) Limited Departmental
Competitive Examination, 1996 by ·providing fo·r
reservation and extend all consequential reliefs to the
appellants, if not granted so far. [Paras 10 and 11] [879-
F-H]                                                       C
   S. Vinod Kumar vs. Union of India and Ors. 1996 (7)
                 =
Suppl. SCR 142 (1996) 6 SCC 580 - held per incuriam.
   Superintending Engineer, Public Health, U. T.
Chandigarh and Ors. vs. Ku/deep Singh & Others 1997 (1)       D
SCR 454 = (1997) 9 sec 199 - affirmed.
   M. Nagraj and Ors. vs. Union of India and Ors. 2006 (7)
                  =
Suppl. SCR 336 (2006)8 SCC 212 - followed.
    Indra Sawhney vs. Union of India and Ors. 1992 (2)        E
suppl. SCR 454 = 1992 Suppl. (3) SCC 217 - referred to.
                      Case Law Reference :
     1996 (7) Suppl. SCR 142   held per incuriam Para 2
                                                              F
     1992 (2) Suppl. SCR 454   referred to        Para 6
     1997 (1) SCR 454          affirmed           Para 10
     2006 (7) Suppl. SCR 336 · followed           Para 7
    CIVIL APPELLATE JiURISDICTION : Civil Appeal Nos.         G
6046-6047 of 2004.
     From the Judgment and Order dated 06.11.1998 in
Original Applications Nos. 499 & 849 of 1998 of the Central
Administrative Tribunal, Principal Bench at New Delhi.        H
    874       SUPREME COURT REPORTS               [2014] 8 S.C.R.


A       Dr. Krishan Singh Chauhan, Ajit Kumar Ekka, Ravi
    Prakash, Chand Kiran, Murari Lal for the Appellants.

         Ranjit Kumar, SG., P. S. Patwalia, ASG., A. Mariarputham,
    V. Mohana, Binu Tamta, D.L. Chindananda, Sushma Suri for·
8   the Respondents.

          The Judgment of the Court was delivered by

        R.M.LODHA, CJI. 1. On 23.12.1970 (1970 O.M.), the
  Department of Personnel issued Office Men:iorandum being
C 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
o 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")
E 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
F 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
G of regulation 7(3) of the Central Secretariat Service Section
   Officers' Grade/Stenographers' Grade 'B' (Limited
   Departmental Competitive Examination) Regulations, 1964
   v,ihich provides for relaxed qualifying standard in favour of the
 /Scheduled Castes and the Scheduled Tribes candidates to
H make up the deficiency in the reserved quota which has been
        ROHTAS BHANKHAR v. UNION OF INDIA                      875
                [RM. LODHA, CJI.]

rendered legally invalid and unenforceable. This is certified that    A
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/              B
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 C
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                  o
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                E
     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.
                                                                      F
     5. On 8.10.1999, when special leave petitions, from which
these appeals arise, came up for consideration before a two-
J udge 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          G
reserved candidates in the matter of 'promotion'. The Bench
noticed three judgments of this Court; (1) Indra Sawhney2 , (2)
1.   (1996) 6 sec 580, s. VINOD KUMAR & ANOTHER vs. UNION OF INDIA.
2.   1992 Supp (3) sec 217, INDRA SAWHNEY vs. UNION OF INDIA AND
     OTHERS.                                                          H
    876       SUPREME COURT REPORTS                 . [2014) 8 S.C.R.


A   S. Vinod Kumar1 and (3) Ku/deep Singh 3 and observed that
    in Ku/deep Sihgh 3 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.
B
        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 Ku/deep Singh 3 , the Bench had not referred
  to the majority decision in Indra Sawheny2. The Bench doubted
C the correctness of the decision in Ku/deep Singh 3 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
D 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
E Indra Sawhney2 wherein it was laid down that there cannot be
  dilution of standards in matter of promotion wa·s not noticed.

         7. It is important to note here that constitutional validity of
    Article 16(4A) came up for consideration before the
F   Constitution Bench in the case of M. Nagaraf. 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.
G         In S. Vinod Kumar v. Union of India this Court held that

    3.   (1997) 9 sec 199, SUPERINTENDING ENGINEER, PUBLIC HEALTH, U.T.
         CHANDIGARH AND OTHERS VS. KULDEEP SINGH & OTHERS.
    4.   (2006) 8 sec 212 M. NAGARAJ AND OTHERS vs. UNION OF INDIA AND
H        OTHERS.                                                   .
      ROHTAS BHANKHAR v. UNION OF INDIA                    877
              [RM. LODHA, CJI.)

    relaxation of qualifying marks and standards· of evaluation    A
    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,         B
    2900 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 C
           for relaxation in qualifying mark~ 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."                    D

    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 ~umarwhich took the view       E
    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
    promotiol). The proviso is confined to SCs and STs alone.      F
    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:              G

    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   H
    878       SUPREME COURT REPORTS                  [2014) 8 S.C.R.


A         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
B         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
c         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
D         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
E         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
F         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
G         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
H         above, the State will have to see that its reservation
       ROHTAS BHANKHAR v. UNION OF INDIA                       879
               [R.M. LODHA, CJI.]

      provision does not lead to excursiveness so as to breach         A
     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,          B
      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              c
Ku/deep Singh 2 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 Ku/deep Singh 3 is in accord with constitutional
scheme articulated in Article 16(4A). On the other hand, in S.         D
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
Ku/deep Singh 3 and approve the same. Ordinarily, we would
                                                                       E
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        F
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          G
Officers/Stenographers (Grade B/Grade-1) Limited
Departmental Competitive Examination, 1996 by providing for
reservation and extend all consequential reliefs to the
appellants, if not granted so far. No costs.
Kalpana K. Tripathy                                 Appeals allowed.   H