CHAPTER IV

 

RESERVATION IN PROMOTION – PRESCRIPTION OF LOW QUALIFYING MARKS/LESSER STANDARD OF EVALUATION.

 

OFFICE MEMORANDUM DATED 22ND JULY, 1997

 

 

1.         O.M. No. 8/12/69-Estt.(SCT) dt. 23.12.1970

2.         O.M. No. 360321/10/76-Estt. (SCT) dt. 21.1.1997

3.                  Para 6.3.2 of the DPC guidelines circulated vide O.M. No. 22011/5/86-Estt. D. Dt. 10.4.1989.

 

4.1       The undersigned is directed to say that in terms of instructions noted in the margin, certain relaxations/concessions in the matter of qualifying marks/standards of evaluation of performance are to be made in favour of candidates belonging to the Scheduled Castes and the Scheduled Tribes while considering them for promotion.

 

2.         The validity of such lower qualifying marks/lesser standards of evaluation was called into question in courts in the context of the judgement of the Supreme Court in the case  of Indira Sawhney Vs. Union of Indian.  The Supreme Court,  in the case of S. Vinod Kumar Vs. Union of India 1996(8) S.C. 6431 has held that the provision for lower qualifying marks/lesser level of evaluation, in the matter of promotion, provides for candidates belonging to the Scheduled Castes and Scheduled Tribes under Government’s instructions, is not permissible under Article 16(4) in view of the command contained in Articles 335 of the constitution.  The Court has further observed that even if it is assumed for the sake of argument that reservation is permitted by Articles 16(4) in the matter of promotion, in virtue of Articles 335.  The Court also held that the protection for reservation in promotion for five years given by the Supreme Court, vide para 829 of the judgement of Indira Sawhney’s case, did not save the provision for lower qualifying marks lesser level of evaluation.

 

3.         It has accordingly been decided to withdraw the instructions contained in this Department’s O.M. No. 8/12/69-Estt.(SCT) dated 23/12/70 and O.M. No. 30021/10/76-Estt.(SCT) dated 21.1.1977, in so far these provide for lower qualifying marks for Scheduled Caste/Scheduled Tribe candidates in departmental qualifying /competitive examinations for promotion.  Similarly, the relevant portion of para 6.3.2 of the DPC guidelines circulated vide this Department’s O.M. No. 22011/5/86-Estt.(D) dated 10.4.1989, to the extent that they provide for consideration of Scheduled Castes/Scheduled Tribes candidates without reference to merit and the prescribed “bench mark” are hereby rescinded.

 

4.         It is clarified that the effect of these instructions is that henceforth there shall be no separate standards of evaluation for candidates of Scheduled Castes/Scheduled Tribes for promotion, and assessment of all candidates for this purpose will be with reference to uniform standards.  Any other instruction of the Government, which provide for lower qualifying marks/lessers standards of evaluation in matters of promotion for candidates belonging to the Scheduled Castes/Scheduled Tribes, may also be treated as having been modified to this extent.

 

5.         These instructions take immediate effect.

 

6.         All Ministries/Departments are also requested to bring these instructions to the notice of their attached/subordinate offices and Autonomous Bodies/Public Sector Undertakings under their control for compliance.

 

4.2       On being asked by the Committee in what way these relaxation/concessions were found inconsistent with the maintenance of efficiency of administration, the Ministry (DOPT) in a written reply stated that the Supreme Court in the case of S. Vinod Kumar Vs Union of India has held 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.  The Apex Court further held that the Law on this question is the one declared in para 831 of the  Nine judge constitution bench judgement of the Supreme Court in the case of Indira Sawhney judgement which inter-alia reads as under:-

“……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…”

 

4.3       The Committee were further informed that in terms of the Article 141 of the Constitution, Judgements of the Supreme Court are the law of the land.  Nine Judge Constitution Bench of the Supreme Court in the Indira Sawhney case held on 16.11.1992 that reservation in promotion for Scheduled Castes and Scheduled Tribes was not sustainable under Article 16(4) of the Constitution.  However, the Supreme Court allowed the reservation in promotion to continue for a period of five more years i.e. till 15.11.1997.

 

4.4       It was stated that Constitution (Seventy Seventh Amendment) Act, 1995 incorporated Article 16(4A) in the Constitution which enabled the State to continue reservation in promotion beyond 15.11.1997.  O.M. dated 13.08.1997 has been issued for continuing reservation in promotion for Scheduled Castes and Scheduled Tribes beyond 15.11.1997.

 

4.5       It was also stated that Indira Sawhney Judgement also held that it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation (in matters of reservation in promotion) for the members of reserved categories since that would compromise the efficiency of administration.  Article 16(4A) while enabling the State to continue reservation in promotion does not enable the State to continue the relaxations in matters of reservation in promotion which were held by the Supreme Court to be impermissible.

 

4.6       The Committee were informed that the Supreme Court in the Vinod Kumar case held that while Indira Sawhney judgement permitted reservation in promotion to continue for five years, that judgement did not permit these relaxations also to continue for five years.  O.M. dated 22.07.1997 has been issued to withdraw only such relaxations for Scheduled Castes  and Scheduled Tribes in the matter of reservation in promotion which have specifically been held by the Supreme Court to be impermissible.  All relaxations for SCs and STs in direct recruitment as well as all other relaxations and concessions in matters of reservation in promotion still continue.

 

4.7       The Ministry also informed the Committee that a proposal moved by the then Minister for Railways to bring in an ordinance to negate the effect of the judgement of the Supreme Court in the case of S. Vinod Kumar Vs. Union of India and consequently nullify  the O.M. dated 22.07.1997 was desired by the then Prime Minister to be submitted to the new Government after the general elections.  With the approval of the Prime Minister, it has been decided that the proposal for legislative action in the context of Vinod Kumar Judgement be dropped for the reasons that bringing about by law a provision of the kind struck down by the Supreme Court in Vinod Kumar case would not be consistent with Article 335 of the Constitution relating to maintenance of efficiency in administration.

 

4.8       The Committee pointed out during evidence that if there is no compromise with the efficiency of the administration than the lesser level of evaluation, is also permissible in the matter of promotion.  In reply the Secretary DOPT stated that, so far as promotions are concerned it is not permissible to provide lesser qualifying marks or evaluation in favour of OBC, SCs, STs  since that could compromise the efficiency of administration.  While the same can be provided for the direct  recruitment. This is what has been provided”.

 

4.9       The committee pointed out that there was an amendment in the Constitution by way of Article 16(4)(A), when asked why did the Government of India not bring that amendment to the notice of the Supreme Court, the Secretary DOPT replied during evidence, “Earlier promotions were continuing under Article 16(4).  Then, judgement in the case of Indira Sawhney said that promotion can be continued for five years.  The Article 16(4) (A) was brought in only to enable the Government to continue reservation in promotions for longer”.

 

4.10     However, the Committee were not convinced with the interpretation of Article 16(4)(A) by the Ministry.

            Back Ground Of S.  Vinod Kumar Litigation.

S.Vinod Kumar and others were the employees of the Comptroller and Auditor General office who filed the Original Application (O.A.) in the Central Administrative Tribunal (CAT) Madras in which the question before the learned Tribunal to save the reservation provision providing for lesser  marks in the qualifying examinations for promotion.  The Tribunal upheld the concessions and facilities including the provision for lesser qualifying marks in the qualifying examinations  for the promotion provided under Article 16(4)

            The Tribunal’s  observation are as under:

“14. We therefore, hold that status-quo in the matter of reservations in promotion required to be maintained by Supreme Court for five years would also include status quo being maintained in the matter of prescribing lesser qualifying marks in qualifying examination for promotion within period authorities could take steps indicated in the judgement.”

            “15. In view of what is stated above we hold that the impugned memorandum can not be assailed and are legally sustainable.”

4.11     Against this decision of the Tribunal of Madras S. Vinod Kumar & others preferred the Civil Appeal in the Hon’ble Supreme Court and the same was decided by the Divisional Bench  consisting of Hon’ble Justice Mr. B.P. Jeevan Reddy and Hon’ble Justice Mr.K.S.Paripoonam.  The judgement was delivered by Hon’ble Justice Mr. Jeevan Reddy, who also delivered the majority judgement in the Mandal’s case. Relying upon his earlier decision the Hon’ble Judge held that in view of the earlier judgement the relaxation in qualifying marks/lesser standards of evaluation does not stand.

Para 854 of Mandal Judgment Reproduced Below:

“854. 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 being implemented in State of Kerala Vs. N.N. Thomas (1976)2SCC 3 10, and the concessions namely carrying forward of vacancies and provisions for in service coaching/training in Akhil Bharatiya Soshit 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 reasonable lesser qualifying marks or evaluation for the OBCs, SCs and STs  consistent with efficiency of administration and the nature  of duties attached to the office concerned in the matter of promotions for the reasons recorded herein above.”  (JT. 1992(6) Scheduled Caste 273).

           

4.12     The Committee have also noted that Hon’ble Supreme Court while deciding the case of Ashok Kumar Gupta Vs. State of UP has observed as under:

“The intention behind the introduction of Article 16(4A) was to remove the defects as pointed out by this court in Mandal’s case.  While legislative judgement of Parliament upheld the ratio of Rangacharis case.  Thomas case and Akhil Bhartiya Soshit Karamchari Sangh (Railway) Vs. Union of India and others (1981) 1 SSC 246) upholding the rules in reservation.  The interpretation put up therein was given acceptance by legislative amendment.” (Para 42 (1997) 5 SCC 201 Page 238).

           

4.13     The Committee note that observations made by Hon’ble judges in Para 854 quoted above was in connection with the question No. 7 of Mandal’s judgement which reads as under:

            “Whether clause (4) of Article 16 provides reservation only in the matter of initial appointments/direct recruitment or does it contemplate and provide for reservations being made in the matter of promotions as well.”

 

4.14     The Committee note  the relevant observations of the Hon’ble Supreme Court in Mandal Judgement (paras 854 & 550)  made by Hon’ble judges while deciding the basic question whether the reservations in promotions are permissible under Article 16(4) of the Constitution of India.  The question for the Committee to consider was not only the logic/reasoning for much decision but also whether one of the reasons for unconstitutionality was the efficiency of the administration as contemplated in the Article 335.  The Committee are of considered view that the question was never before the Court whether reservation in promotion causes inefficiency under Article 335, nor there was any data produced before the Court in support of it or against it.    The two paras of Mandal judgement are merely observations and in legal language they are called obiter dicta.  No Court is capable to assess the loss of efficiency in the absence of relevant data or expert opinion of able and competent administrators who had made such study in this regard.

 

Hon’ble Supreme Court did not consider complete Provisions of Article 335 which cast the duty for adequate representation of SCs/STs.

 

4.15     The Committee note that the learned judges while rely upon Article 335 which speak of `efficiency of administration, which equally speak of the duty of the state to ensure adequacy of representation of the SC/STs in all services under the state.  In Admedabad Scheduled Tribe. Xavier’s College Society and others Vs. State of Gujarat and others (1975) (1) SCR 173 case, a Bench of 9 judges in 1975, had held that in interpreting the Constitutional provisions the interpretation should be such that the people enjoy rights given by the Constitution and should not be denied of those rights by interpretation process.  That Bench followed the dictum of the International Court of Justice  on the minority rights case. This beneficial interpretation of the Constitution was ignored in Vinod Kumar’s case as well in Mandal’s case.  Thus, these cases suffer from serious legal lacuna. 

 

4.16     However, the Committee do not want to go into this controversy of observation or judgement and take the para 854 as a decision of the Hon’ble Supreme Court.  The question which is under consideration  whether DOP&T examine this issue while considering the remedial measures to be initiated to overcome the difficulties created due to the Hon’ble Supreme Court’s decision in Mandal’s judgement which was required to be brought out very clearly and specifically before the Government i.e. Cabinet so that a remedial action may have been initiated simultaneously such as constitutional amendment of Article 335 along with Article 16(4) A.  There is no evidence or data before the Committee that DOP&T’s bureaucracy suggested the remedial measures but the then government did not accept the same.

 

 

4.17     Para No. 550 in Justice Sawant’s Judgment in Mandal Case is as under:-

           

            “There is no doubt that the meaning of the various expressions used in Article 16, vis.” matter  relating to employment or appointment to any office, any employment of 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 they resort to it such as in the promotions if results in the efficiency 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.  Not only the equality of opportunity but also the equality of results to be achieved which is the true meaning or the right to equality (JT  1992(6) SC 273).

           

4.18     The Committee have also taken a note that while replying the question on reservation in promotion for SCs/STs justice Sawant has made it clear that it is his opinion and paras No. 539 to 540 which are reproduced below:

“539.  None of the impugned government Memoranda provide  for  reservations in promotions.  Hence, the question does not fall for consideration at all   any opinion expressed by this court on the s aid point would be obiter.  As has been rightly contended by Shri Parasran, it is settled by the decisions of this Court the    constitutional questions are decided only if they arise for determination on the facts, and are absolutely necessary to be decided.  The court does not decide question which do not arise.  The tradition is both wise and advisable.  There is a long line of decisions of this court on the point.  The principle is  so well settled and not disputed before us that it is not necessary to quote all the authorities on the subject.”  (JT 1922(6) SC 273)

           

4.19     “540.  “The reservations in the services under Article 16(4) except in the case of SCs/STs  are in the   discretion of the State.  Whether reservations shall at all be kept and if so in which field and at what levels and in which mode of recruitment direct or promotional and at what percentage, are all matters of policy.  Each authority is required to apply its mind to the facts and circumstances of the  case before it and depending upon the field, the post, the extent of the existing representation of different classes, the need, if any, to balance the representation the conflicting claim etc. decide upon the measures of reservations.  The reservation as stated earlier, cannot be kept mechanically even where it is permissible to do so.  For some reasons, if Central Government, in the present case has not thought it prudent and necessary to keep reservation in promotions, the decision of the Central Government should not  be probed  further.  It is for the Government to frame its policy and not for this Court to comment it when it is not called upon to do so.” (JT 1992(6) 273).

           

4.20     The Committee have been informed that the that Constitution (Seventy Seventh Amendment) Act 1995 was introduced in the Parliament through which clause (4A) was inserted in Article 16 of the Constitution.  The stated objective was  that since the ruling of Hon’ble Supreme Court would adversely affect the interest of SCs/STs,  the Government had decided to continue the existing policy of reservation in promotion for SCs/STs.  To  carry out this,  it is necessary to amend Article 16 of the constitution by inserting the clause (4A) in the said Article thereby to provide for reservation in promotion for SCs/STs/  It is obvious that the bureaucrats of the DOP&T who were parties and  as such contested the case in the court and studied the effects of the Mandal’s judgment but they did not suggest the constitutional amendment of Article 335 to the then Ministry of Welfare (now the Ministry of  Social Justice and Empowerment).  This incomplete examination of the effects of the  judgment has immediately backfired in the shape of the judgment in the S. Vinod Kumar case in which relaxation regarding  lower qualifying marks/evaluation has been struck down by Hon’ble Supreme Court.   Thus it is obvious that the present situation arose due to casual approach and  incomplete scrutiny by none else than the bureaucrats of DOP&T and they are responsible for the present judgement. Had simultaneous action been initiated for the amendment of Article 335, the  situation would have been different.

           

4.21     The Committee are also of considered view that the DOP&T’s casual approach and  incomplete examination of, the effects of the Mandal judgement on the provisions of Art. 335 cannot but be  the wilful ommision of simultaneous action for relaxation in the qualifying marks/lesser evaluation which led to adverse judgement later on the strength of relevant paras of the Mandal judgement.  The reservation and relaxation can not be separated and they go together.  In the absence of relaxation, reservation has no meaning because the Dalit and Tribals have not reached the  stage where they can stand of their own due to Centuries of social, economic and educational backwardness.    The Committee, therefore,  recommend that responsibility has to be fixed against the DOP&T’s bureaucrats who failed to give a clear picture to the Ministry of Welfare (now the Ministry of Social Justice & Empowerment) for initiating the remedial measures in time.

 

4.22     The Committee are aware that the administration of law and justice is intimately linked with the social philosophy and the social philosophy cannot be entirely separated from the social origin of those who deliver the justice.  The social composition of judiciary inevitably affect and influence judgements.  Judges are not super human beings.  Howsoever, objective and fair they may try to be in their decisions or interpretation of law on any social economic issue, they cannot but be influenced by the social considerations.  “A Judge’s mind is not mechanical, legal slot machine”.  His judgements also get influenced at least unconsciously by his likes and dislikes, prejudices and predictions and his entire philosophy of life.  In the atmosphere of the ongoing social struggle in the country where caste is dominant factor, the resultant bitterness cannot leave the judges without being influenced in  their judgements.  They are bound to carry  their own social philosophy because they share the sentiments of the society/class in which they live.  In the word of Justice O. Chennappa Reddy “Court belongs to a class …….. when the class consciousness takes over.”  The former Chief Justice of India Hon’ble Justice Mr. P.N. Bhagwati also observed that lawyers  unwillingly develop certain biasness.  The trend of the judgement of the decades of 90’s and last decade of 2000 fully substantiate the above observations.  Therefore, any progressive measures which is intended for social change/social justice have to suffer the set back in the courts and only remedial measures is the legislative wing which too is not being assisted because the top bureaucrats also belong to the upper class. The present instance fully substantiate the above observations and inferences.

           

4.23     As stated earlier it was the lack of the wisdom on part of DOP&T bureaucracy which failed to advise the then Government the effects of Mandal’s judgement on the question of inefficiency, therefore, simultaneous remedial action  was not initiated along with the Constitutional Amendment of Article 16.  The inaction of DOP&T’s bureaucracy has proved very costly to the dalits and tribals.

 

4.24     The Committee are of considered view that had the bureaucracy brought the effects of the Mandal judgement to the then Government or subsequent Government, they would not have ignored the need to make  the constitutional amendment to Article 335, because the concept of reservation  without relaxation is meaningless. The introduction of the constitutional amendment had been delayed up to the 22nd December, 1999 – the crucial  date on which the Minister of State for Department of Personnel & Training and Department of Pensions & Pensioner’s Welfare introduced the Constitution (Eighty Amendment) Bill, 1999 (in Rajya Sabha) which reads as under:

 

“Providing 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 post in connection with the affairs of the Union or of a State.”

 

4.25     The Committee note that due to the adverse effects of the Mandal judgement, the interest of the SCs/STs  had been  affected badly, and therefore, the Constitutional Amendment was proposed to restore the relaxation which were withdrawn vide instructions issued by DOP&T on 22.7.97.   It is stated that while putting the matter before the then Government, the DOP&T officials neither apprised the seriousness of effects of the Mandal Judgment and also of the S. Vinod Kumar’s judgment on reservation policy nor suggest any alternative remedial action such as constitutional amendment, but only proposed for the implementation of the judgement which shows that this was motivated projection by them.  This shows their partisan attitude and prejudices towards Dalits. The Committee are therefore, of the firm view that a separate regulatory authority is required to control the reservation policy and to regulate the same instead of allowing same to DOPT.

 

4.26     The Committee now consider the second aspect, that whether the Advocates who appeared for and on behalf of Union of India defended the reservation position in the court properly on behalf of the Union of India.

            Following advocates appeared in the Supreme Court:-

            Mr. Vasant, V.Vaje, Sr. Advocate, Y.P. Mahajan and Mr. C.V.  Subha Rao.

           

4.27     From the perusal of the judgment it is clear that learned Advocates who appeared for and on behalf of the Union of India did not make any argument in support of  Government policy of relaxation, nor cited earlier decisions of Hon’ble Supreme Court. He did not explain the meaning and scope of efficiency, what system was in  existence to ensure efficiency in Government machinery and measures proposed to ensure efficiency, in the absence of any data no such conclusion can be drawn etc.   They did not apprise  the Hon’ble Court the question whether reservation is permissible under Article 16(4) and not  the efficiency for which Parliament had already made Constitutional Amendments and to rectify the defects which were pointed out by Hon’ble Court as has been done earlier on several occasions.   The  Committee note that the three advocates who appeared for Union of India in the court could not plead the case properly, due to their poor and inefficient performance.

 

4.28     When the Committee pointedly asked that what action the Ministry of Legal Affairs proposed against the defaulting Advocates who appeared in  Vinod Kumar’s  case,  it was stated that  these learned Advocates did  not bring the newly inserted clause (4A) of Article 16 of the Constitution to the notice of the Supreme Court.  It was also stated that the Department (Department of Legal Affairs)  proposed to seek the explanation of these counsels and appropriate  action would be taken in the matter after examination of their reply. 

 

4.29     The Committee are surprised to mention that the proposed action taken against the defaulting  Advocates who appeared in Vinod Kumar’s case has not been apprised to the Committee so far although atleast one aspect of their omission was  admitted.  From this case the Committee can well draw the conclusion about the state of affairs prevailing in dealing with court cases and the manner in which the cases of reservation policy are being contested in courts by Government’s Panel of Advocates who either lack the knowledge and competence, or appear to be less motivated due to lesser financial incentives given to them.  Even majority of them  are totally indifferent to the cause in support of  which they appear in courts/tribunal and discharge their responsibilities. The Committee, therefore, recommend that the existing machinery of contesting the court cases must be overhauled and a new effective machinery, i.e., panel of efficient advocates should be evolved for dealing with   cases with cases  more effectively.

 

4.30     The Committee have gone into the genesis of the relaxation and concessions which were questioned in the S. Vinod Kumar case.  These relaxations were  granted but by Hon’ble Supreme Court in the case of Comptroller Auditor General of India Vs. S. Jagannathan and another case (1986)2  of Supreme Court 679) in which Hon’ble Apex Court concluded the maintenance of the efficiency is not to be decided in terms of the marks obtained in the qualifying examinations but have to be judged by ability, character and the experience to discharge adequately and efficiently the duties required by the incumbent of the post of Audit Subordinate Accounts Services.  Hon’ble Supreme Court rejected the Comptroller and Auditory General’s plea of inefficiency as well as rejecting the impairment theory.  Thus in pursuance of Court decision the scheme was devised by the Comptroller and Auditor General for allowing 5% relaxation in Subordinate Accounts Examination.  This decision has not been expressly overruled by the Hon’ble Supreme Court either in the S. Vinod Kumar’s case or in Mandal’s judgement.  The rights flowing out of this  judgement of three judges Bench cannot be taken away by two bench  Judges decision of S. Vinod Kumar.

 

4.31     Efficiency As Per Supreme Court Judgements:

 

            The Committee consider it necessary to analyse the word “efficiency” and its true meaning as understood by Supreme Court in different judgements.  The Committee has gone into the Hon’ble Supreme Court Judgements in which Hon’ble Apex Court has dealt with the question of the efficiency as under:

 

4.32     N.N. Thomas case:

           

            The question of the efficiency has been dealt with in the case of Government of Kerala Vs. N.N. Thomas and others (AIR 1976 – SC – 490) and Hon’ble court held that the efficiency means in terms of the good Government (not marks in the examination) responsible as well as  responsive service to the people.  Efficiency include a sense of belongingness and accountability.

 

4.33     Akhil Bhartiya Soshit Karamchari Sangh:

           

Further, this question was dealt in Supreme Court judgement of Akhil Bhartiya Soshit Karmchari Sangh (Railways) vs. Union of India (AIR 1981-SC-298). Before Hon’ble Court no material was placed to take the similar view as proposed by Petitioners that efficiency have been deteriorating.  The court has observed that the merits mongers are at the greater risk in many respect than naïve tribals and slightly better of low caste. 

 

4.34     Ashok Kumar Gupta Case:

Further the question of the efficiency was elaborately dealt with in the latest judgement  of Hon’ble Supreme Court in the case of Ashok Kumar Gupta vs State of U.P. Article 335 speaks of the efficiency of the administration and reservation in promotion of Dalits and Tribes would neither affect the efficiency in service nor it is unconstitutional.  It is admitted  that there was no issue nor there was any evidence to produce as proof whether the efficiency of the administration is affected due to the reservation in promotion.

4.35     The Committee note that the Office Memorandum dated 22.7.1997 issued by DOPT was issued on the basis of a Supreme Court judgements in the matter of Indira Sawhney Vs Union of India and S. Vinod Kumar Vs. Union of India which laid down that relaxations and concessions in the matter of qualifying marks/standards of evaluation of performance made in favour of Scheduled Caste/Scheduled Tribe candidates were withdrawn.  The Committee note that Constitution 77th  Amendment Act 1995 incorporated in  Article 16(4A) enables the State to continue reservation in promotion.  Article 16(4) states that “Nothing in this Article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the state, is not adequately represented in the services under the state”.  Thus, in the opinion of the Committee if relaxations and concessions in the matter of qualifying marks/standards of evaluation of performance made in favour of Scheduled Caste/Scheduled Tribe in promotion are withdrawn, then the basic idea of reservation is meaningless.  Since the representation of Scheduled Castes/Scheduled Tribes are still inadequate in the matters of promotion, the concessions and relaxations are required to be given to them. The Committee further note that, the Supreme Court subsequently had over-ruled the    judgement in the matter of Ashok Kumar Gupta Vs State of U.P. and Post Graduate Institute of Medical Education and Research Vs. K.L. Narsimhan and Others.  The Scheduled Caste/Scheduled Tribe candidates have to work in an unconducive, castiest and discriminatory atmosphere, the Committee, therefore, recommend that separate standards/concessions are very much necessary for their promotion as well as assessment. The Committee feel that on account of social, economic disability relaxation in prescribed standards is a must on promotional posts reserved for Scheduled Castes and Scheduled Tribes, and will definitely achieve their adequate representation in all cadres.  The Committee, therefore, recommend that the separate standards/concessions are very much necessary for the promotion as well as assessment of SCs/STs.

 

4.36     The Committee note that in construing the language in Article 16(4A) in Ashok Kumar Gupta’s case 1997 5 SCC 201 (three Judges  Bench) and Jagdish Lal’s case 1997 6 SCC 538 (two Judges Bench) the Supreme Court held that by virtue of Constitution amendment in Art. 16(4A), promotion is a fundamental right to the SCs and STs.  In Ajit Singh –II case 1999 7 SCC 209 (five Judges Bench) held that Article 16(4) and Article 16(4A) do not confer any fundamental right nor do they impose any constitutional duty on the State to promote the SCs and STs.  It is only an enabling provision vesting direction in the State to consider providing reservation if  the circumstances mentioned in those Articles so warranted and the court also linked up  ‘efficiency’ factor as found in Article 335.  What the Parliament intended to give benefit of promotion as of right to the Dalits and Adivasis, by judicial interpretation was watered down holding that they  have no right nor the State has constitutional duty to implement  it.  In other words, the message is that  even if the Dalits and Adivasis seek implementation of Article 16(4A) for their adequate representation in promotional posts, efficiency factor would be used as a weapon to shoot them back and deny them their right.  The Committee  also note that in pursuance of constitutional amendment the Government have issued instructions vide DOPT O.M. No. 36012/23/96 – Estt.(Res) Vol. II dated 3/10/2000  for giving relaxation in qualifying marks and lesser standard of evaluation in promotion.  The Committee urge the Government to ensure proper implementation of these instructions in letter and spirit.