Rohtas Bhankhar & Ors. v. Union of India & Anr.
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were withdrawn.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 Kumar 1, this Court relying upon Indra
Sawhney 2 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. Vi nod 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.
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 Sawhney 2 , (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 Singh3 and observed that
in Ku/deep Sihgh3 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 Singh3, the Bench had not referred
to the majority decision in Indra Sawheny2. The Bench doubted
C the correctness of the decision in Ku/deep Singh3 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.
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
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.
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.
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
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
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
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
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
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 Singh2 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 Singh3 and approve the same. Ordinarily, 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 (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
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