Leave granted. Heard the counsel for the parties.
In Indra Sawhney etc. v. Union & 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. 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 affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion-be it Central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of ’State’ in Article 12-such reservations 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 the
State to extend concessions and
relaxations to members of reserved
categories in the matter of
promotion without compromising 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 for in-service
coaching/training in Akhil
Bharatiya Soshit Karamchari Sangh
v. Union of India, (1981) 1 SCC
246, are instances of such
concessions and relaxations.
However, 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. We reiterate that
while it may be permissible 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
recruitment, such a course would
not be permissible in the matter of
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 appointment to any
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
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 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
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."
The question before the Madras State Administrative Tribunal was whether the saving of reservations provided in Para 829 takes within its purview the provisions providing for lesser qualifying marks in the qualifying examination 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 reads thus:
"14. We therefore hold that the
status quo in the matter of
reservations in promotion required
to be maintained by the Supreme
Court for five years, would also
include status quo being maintained
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."
The memorandum referred to in Para 15 aforesaid is the Memorandum 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 examination should be made for Scheduled Castes/Scheduled Tribes to the extent of the relaxation to be decided on each occasion, whenever such examination was held, taking into account all relevant factors including the number of vacancies reserved, performance 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 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 Government of Tamil Nadu has been issuing orders from time to time providing lesser qualifying marks for passing the qualifying 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.
Having heard the counsel for the parties and considered the various opinions in Indra 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 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 requirement, such a course would not be permissible in the matter of promotion for the reasons recorded hereinabove". At the same time, it is 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 Thomas 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. However, 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 concerned 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 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 in Akhil Bharatiya Soshit Karamchari Sangh v. Union of India [1981 (1) S.C.C.246] are concerned, they are specified in Para 831 itself as 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 of evaluation in favour of OBCs/SCs/STs since that would compromise the efficiency of administration, while the same can be provided in the matter of direct recruitment. So far as promotions are concerned 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 provision for lower qualifying marks or a lesser level of evaluation.
To the same effect are the observations of Sawant,J. in Para 549, which we have extracted hereinabove. The learned Judge also speaks of "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 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 not necessary to consider in that case the question whether Article 16(4) permits reservation in the matter of promotions.] 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 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 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 declaration in Para 829 of the said judgment.
The learned counsel for the parties referred to certain decisions of this Court but, in our opinion, it is wholly unnecessary to refer to them since none of them deal with the question at issue.
The appeal is accordingly allowed with the above clarifications. The order of the Tribunal is set aside. No costs