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October 23, 2017

Supreme Court order of July 2014: GOI takes steps for providing consequential benefits to SC/ST officers


Newsroom24x7 Staff

New Delhi: The Department of Personnel and Training, under the Government of India Ministry of Personnel, Public Grievances and Pensions, today issued an office Memorandum drawing attention of various Departments and Ministries towards the missing and non-availability of Annual Performance Appraisal Report – APAR for the period 2008-09 to 2015-16.

The Office Memo has been issued by DoPt for implementation of Supreme Court Judgement of 15 July 2014 in response to a Civil Appeal of 2004 for providing consequential benefits to SC/ST officers.

On 23 December 1970, the Department of Personnel had issued an office memorandum bearing [O.M. No. 8/12/69-Estt. (SCT)] relaxing standards in the case of Scheduled Castes/Tribes candidates in departmental ompetitive examinations and in departmental confirmation examinations.

This O.M. remained operative for about 17 years until another O.M. [No. 36012/23/96 Estt.(Res) dated 22 July 1997] was issued withdrawing instructions contained in the 1970 O.M. Thereafter another notification was issued on 30 November 1998, the Central Secretariat Service Section Officers’ Grade/Stenographers’ Grade ‘B (Limited Departmental Competitive Examination) Regulations, 1964 were amended by Central Secretariat Service Section Officers’ Grade/Stenographers’ Grade ‘B (Limited Departmental Competitive Examination) Amendment Regulations, 1998.

The result of this amendment was that in 1964 Regulations, Regulation 7, sub-regulation (3) was omitted from 22 July 1997 onwards.

The explanatory note attached with this Notification read as follows:

“In compliance with the Supreme Court’s judgment in the case of S. Vinod Kumar vs. Union of India, the Central Government has 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.”

In the Rohtas Bhankar and others versus Government of India and others case, a five Judge Constitution Bench of the Supreme Court, comprising Chief Justice of India R.M. Lodha, and Justices Jagdish Singh Khehar (the present Chief Justice of India), J Chelameswar, AK Sikri and Rohinton Fali Nariman, passed an order on July 15 2014 reiterating 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.

The main issue concerns the “extent of reservation”. 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. Emphasising that the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions, this order says adding 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. The Supreme Court also made it clear through this order that even if the State has compelling reasons, it 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. – Supreme Court order of July 2014

Subject to these conditions, the Supreme Court upheld 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.

The Supreme Court order of July 2014 says: “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 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). On the other hand, in S. Vinod Kumar, 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 that there can not be dilution of standards in matters of promotion.

The five-judge Bench was also in agreement with the decision in Kuldeep Singh case and approved it. Ordinarily, the July 2014 order said: ” 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 has followed (the order in) S. Vinod Kumar 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 were allowed. The impugned order was set-aside. 1997 O.M. was declared illegal. Government of India was 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.

The order said, while passing the judgement in the S. Vinod Kumar case, the court did not take into consideration the constitutional provision that Article 16(4A) had been brought into Constitution by the Constitution (Seventy seventh Amendment) Act, 1995 with effect from 17 June 1995. Hence the five Judge Bench on 15 July 2014 pronounced that S. Vinod Kumar’s is per incuriam – implying thereby that it is a judgment which has been decided without reference to a statutory provision.



In its July 2014 judgement, the Apex Court also underscored the Constitution (Eighty second Amendment) Act, 2000, a proviso attached 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 matters of promotion to any class or classes of services or posts in connect with the affairs of the Union or of a State.”

Furthermore the July 2014 order also focuses attention on SLPs of 8 October 1999, from which arose and came up for consideration before a two-Judge Bench the matter whether it was permissible for the authorities to fix lesser number of qualifying marks for reserved candidates in the matter of ‘promotion’. That Bench took up for consideration three judgments of the apex Court:

(1) Indra Sawhney
(2) S. Vinod Kumar and
(3) Kuldeep Singh

The Court observed that in Kuldeep Singh case the Court did not notice the observations of majority as well as observations of Justice Sawant, in Indra Sawhney case and the matter required to be heard by a three Judge Bench.

On 2 December 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 8 October 1999 that in Kuldeep Singh case, the Bench had not referred to the majority decision in Indra Sawheny case. The Bench, therefore, doubted the correctness of the decision in Kuldeep Singh case and referred the matter to the Constitution Bench.

In the reference order, the three-Judge Bench also noted the decision of the Supreme Court in Haridas Parsedia and others versus Urmila Shakya and others case [Civil Appeal Nos. 6590-6592 of 1999 etc.) of 19 November 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, the Bench observed that in that case, the observations of Supreme Court in Indra Sawhney case, wherein it was laid down that there cannot be dilution of standards in matter of promotion was not noticed.

In the July 2014 order, Supreme Court said it is important to note that the constitutional validity of Article 16(4A) came up for consideration before the Constitution Bench in the case of M. Nagaraj case.

The Constitution Bench observed:

“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.”

By the Constitution (eighty-second Amendment) Act, 2000 a proviso was
inserted at the end of Article 335 of the Constitution which read 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.”

The Apex court noted in the 2014 order that this proviso was added keeping in view 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 case 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).


 

Significantly, the Constitution Bench also pointed out in its 2014 order that the conclusions recorded by the Constitution Bench in M. Nagaraj case also were relevant.

They read as under:

“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 case.”

The Supreme Court in its order of 11 March 2010 ordered that the batch of writ petitions, pending before the Supreme Court, challenging various orders/notifications issued under Article 16(4)(A) of the Constitution, were disposed of, by the Supreme Court vide order dated 11th March, 2010, in the following terms:-

“The Constitution of India was amended by the Seventy-Seventh Amendment Act, 1995, Eighty-fifth Amendment Act, 2001 and Eighty-first Amendment Act, 2000. By these Acts Article 16(4), (4-A) and 16(4-B) were amended. Thus Seventy-Seventh Amendment Act, 1995 and Eighty-fifth Amendment Act, 2001 came into effect w.e.f. 16.06.1995 and Eighty-first Amendment Act, 2000 came into effect on 09.06.2000. Subsequent to these Amendments of the Constitution various State Government issued order/notifications to implement the provisions of the Constitution. These notifications/orders were challenged in various writ petitions and special leave petitions before this Court. In these proceedings the constitutional amendments were also challenged. By the decision of the Constitution Bench of this Court in M. Nagaraj and others vs. Union of India and others reported in (2006) 8 SCC 212, the constitutional validity of Article 16(4), (4-A) and (4-B) was upheld. In the judgment it was directed that various individual writ petitions would be considered by appropriate Bench in accordance with the law laid down in this decision. As various state orders and notifications have been challenged in these writ petitions be considered by the respective High Courts. The validity of the same be decided in view of the final decision of the Constitution Bench of this Court in M. Nagaraj and others vs. Union of India and others (supra).
Therefore, we permit the petitioners in these writ petitions to withdraw these writ petitions with liberty to move the High Court and in the event of writ petitions are filed before the High Court the same may be considered by the High Court in the light of the observations made by this Court in M. Nagaraj and others vs. Union of India and other (supra). The petitioners would be at liberty to seek appropriate interim relief in the High Court. The writ petitions as well as contempt petitions are disposed of accordingly”.

Earlier in the M Nagraj case, the Supreme Court on 19 October 2006 had ordered:

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) 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 OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.

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.

However, in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State 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 SC/ST in matter 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 of 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 excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.



Subject to 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 have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.

 

 

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