S. VINOD KUMAR AND ANR.versusUNION OF INDIA AND ORS.

A                        S. VINOD KUMAR AND ANR.
                                          v.
                          UNION OF INDIA AND ORS.

                                 OCTOBER 1, 1996

B           [B.P. JEEVAN REDDY AND K.S. PARIPOORNAN, JJ.]

          Service Law-Reservation in promotion for SC/ST-Lower qualifying
    marks-Held not permissible to provide lower qualifying marks or lesser
    evaluation in the matter of promotion as it would affect the efficiency of
C   administration. Constitution of India-Articles 16(4), 335.

         By a Memorandum dated 21st January 1997 the SC/ST were
  provided relaxation in qualifyin1: examination for promotion on the basis
  of seniority. The State Administrative Tribunal held that the expression
D reservation provided in Article 16(4) includes provision for lesser qualify.
  ing marks in .the qualifying examination for promotion. The Tribunal
  declared that the status quo mai.ntained by Supreme Court for five years
  (in Indira Sawhney's case) also includes prescribing lower qualifying marks
  in the qualifying examination for promotion. The present appeal is against
  the order of the Tribunal.
E
            Allowing the appeal and setting aside the order of the Tribunal, this
    court

        HELD: 1. It is not permissible under Article 16(4) in view of the
  cominand contained in Article 335 of the Constitution to provide lower
F
  qualifying marks or a lesser level of evaluation for OBCs/SCs/STs in the
  matter of promotion since that would compromise the efficiency of ad-
  ministration while the same can be provided in the matter of direct
  recruitment. It is permissible to p'rescribe a reasonabally lower qualifying
  marks or evaluation consistent with efficiency of administration and na-
G tore of duties attached to the omce concerned in the matter of direct
  recruitment. It would also not be impermissible for a State to extend
  concessions and relaxation to member of reserved categories of the ad-
  ministration. [147-D; 146-B-C]

H           Indira Sawhney Etc. v. Union of India and Ors. Etc., [1992] Suppl. 3
                                         142
                S. VINOD KR. v. U.0.1. (B.P.JEEVAN REDDY,J.)             143

SCC 215, State of Kera/a v. N.M. Thomas, [1976) 2 SCC 310 and Akhil             A
Bhartiya Shoshit Karamchari Sangh v. Union of India, [1981) 1 SCC 246
referred to.

         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12676 of
1996.
                                                                                B
      From the Judgment and Order dated 28.6.95 of the Central Ad-
ministrative Tribunal of Madras, in O.A. No. 853 of 1993.

         S. Muralidhar and Ms. Neeru Vaid for the Appellants.

         Vasant V. Vaze, Y.P. Mahajan and C.V. Subba Rao for the Respon-
                                                                                c
dents.

         The Judgment of the Court was delivered by

       B.P. JEEVAN REDDY J. Leave granted. Heard the counsel for the            D
parties. In Indira Sawhney Etc. v. Union of India & 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.   E
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
effect promotions already made, whether on temporary, officiating or
regular/permanent basis. It is further directed that wherever reservations
are already pruvided in the matter of promotion-be it Central Services or
State Services, or for that matter services under any corporation, authority    F
or body falling under the definition of 'State' in Article 12 - such reserva-
tions 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   G
           the State to extend concessions and relaxations to members of
           reserved categories in the matter of promotion without compromis-
           ing 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      H
    144                  SUPREMECOURTREPORTS [1996]SUPP. 7S.C.R.

A           for in- service coaching/training in Akhil Bharatiya Soshit Karam-
            chari Sangh v. Union of India, [1981] 1 SCC 246, are instances of
            such concessions and relaxations. However, it would not be per-
            missible 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
B           while it may be permissible to prescribe a reasonably lesser qualify-
            ing 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 recruit-
            ment, such a course would not be permissible in the matter of
c           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 appoint-
D
            ment to any office', 'any employment or 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
E           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
F           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
G           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."

H         The question before the Administrative Tribunal was whether the
                    S. VINOD KR. v; U.0.1. [B.P. JEEVAN REDDY,J.)              145

      saving of reservations provided in Para 829 takes within its purview the        A
      provisions providing for lesser qualifying marks in the qualifying examina-
      tion 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         B
      reads thus:

              "14. We therefore hold that the status quo in the matter of reser-
              vations in promotion required to be maintained by the Supreme
              Court for five years, would also include status quo being main-         C
J             tained 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."     D
            The memorandum referred to in Para 15 aforesaid is the Memoran-
       dum 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 examina-     E
      tion should be made for Scheduled Castes/Scheduled Tribes to the extent
      of the relaxation to be decided on each occasion, whenever such examina-
      tion was held, taking into account all relevant factors including the number
      of vacancies reserved, perfmmance 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         F
      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
      Comptroller and Auditor General of India has been issuing orders from
      time to time providing lesser qualifying marks for passing the qualifying       G
      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.                                                                   H
~J
    146                  SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.

A         Having heard the counsel for the parties and considered the various
    opinions in Indira 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
B
  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 requiremen~ such a course would not be permissible in the matter of
  promotion for the reasons recorded hereinabove." At the same time, it is
C 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 17wmas and the concessions namely carrying
  forward of vacancies and provisions for in-service coaching/training in
  Karamchari Sangh are instances of such concessions and relaxations. How-
D ever, 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 con-
   cerned 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
E 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 inAkhil Bharatiya Soshit Karamchari Sangh v. Union of India,
   (1981] 1 S.C.C. 246 are concerned, they are specified in Para 831 itself as
F  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 or evaluation in favour of OBCs/SCs/STs since that would com-
   promise the efficiency of administration, while the same can be provided
   in the matter of direct recruitment. So far as promotions are concerned,
G 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 a provision for lower
   qualifying marks or a lesser level of evaluation.

H          To the same effect are the observations of Sawant, J. in Para 549,
               S. VINOD KR. v. U.0.1. [B.P.JEEVANREDDY,J.]               147

  which we have extracted hereinabove. The learned Judge also speaks of A
· "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· B
  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 Iiot necessary to consider in that case the
  question whether Article 16(4) permits reservation in the matter of promo-
  tions.] 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 C
  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 D
  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 declara- E
  tion in Para 829 of the said judgment.

       The learned counsel for the parties referred to certain decisions of ·
 this Court but, in our opinion1 it is wholly unnecessary to refer to them
 since none of them deal with the question at issue.
                                                                                F
       The appeal is accordingly allowed with the above clarifications. The
 order of the Tribunal is set aside. No costs.

 S.V.K.I.                                                  Appeal allowed.