Rajasthan High Court - Jaipur
Diwakar Srimali And Ors. vs Life Insurance Corp. Of India And Ors. on 27 May, 1998
Equivalent citations: 1998(3)WLC692, 1998(1)WLN697
JUDGMENT G.L. Gupta, J.
1. Petitioners no. 2 & 3, Assistants and petitioner no. 1, Micro Processor Operator in the Divisional Office, Life Insurance Corporation of India, Bikaner have called in question the Notification Anx. 1, issued by respondent no. 2 on 2.8.1997 to effect the promotions to the posts of Higher Grade Assistants. The notification has been challenged on various grounds.
2. It has been averred that for promotion to the post of Higher Grade Assistants an Assistant must have minimum service of 5 years to his credit but the Chairman in exercise of the powers under Rule 8 of the Life Insurance Corporation of India Class III and Class IV Employees (Promotion) Rules, 1987 (for short the Rules of 1987) has given relaxation of two years and thereby permitting the members of S.C. & S.T. to compete for the post of H.G.A. with 3 years service experience only. It has been further averred that the pass marks in the departmental examination is 50% in each paper for the general category candidates but only 40% pass marks have been provided for the reserved category candidates and this relaxation has adversely affected the chances of general category candidates. It has been stated that Rule 8 of the Rules of 1987 is violative of Article 14 because it does not contain guidelines as to in what circumstances relaxation can be granted. It has been further stated that relaxation will result into compromising efficiency and it is contrary to the ratio laid down in the case of Indira Sawhney v. Union of India . It has also been averred that non-mentioning of the number of vacancies in the notification is illegal. It has been prayed that Rule 8 be declared invalid, relaxation in service experience made in favour of S.C. & S.T. candidates be quashed, and the portion of Appendix-II relating to pass marks for SC./S.T. candidates i.e. 40% in each paper be declared illegal.
3. In the return filed by the respondents no. 1 & 2 it has been averred that the Chairman had issued the Instruction in 1987 under the Regulations of the year 1960 and thus, the writ petition has been filed after inordinate delay. It has been further stated that the petitioners have no locus standi to challenge the relaxation made in favour of the members of the S.C./S.Ts. as the relaxation is not available to those members of the S.C./S.T. category who compete against the quota fixed for general candidates. It has been denied that the relaxation of two years in the matter of experience given to the members of S.C./S.T. category is invalid or that the provision of less pass marks for the members of the S.C./S.T. violates any principle.
4. In the rejoinder filed by the petitioners, it has been averred that the writ petitions are not filed to resolve the academic issues; they are filed only when something affects the rights of the persons and as the petitioners are likely to be affected by the impugned order they have approached this Court. It has been further stated that the vacancies remaining unfilled on account of non-availability of S.C./S.T. candidates, are to be filled by the candidates from general category and therefore the relaxation will adversely affect the petitioners, rights.
5. Mr. Mridul, learned Senior Advocate canvassed that the following two provisions are objectionable.
(i) A candidate of S.C./S.T. category stands cleared in the departmental test if he gets 40% marks: whereas the general category candidate passes the test on obtaining 50% marks in each paper.
(ii) The reserved category candidate becomes eligible for consideration for promotion to the post of H.G.A. even if he possesses three years experience as Assistant; whereas the general category candidate is required to possess five years experience as Assistant.
6. Relying on the cases of S. Vinod Kumar and Anr. v. Union of India , Indra Sawhney v. Union of India (AIR 1993 SC-447), Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India , State of Kerala and Anr. v. N.M. Thomas and Ors. Mr. Mridul contended that the relaxation in experience and marks both is not permissible and is liable to be quashed. His further contention was that Rule 8 of the Rules of 1987 does not contain guidelines on which the relaxation is to be given and therefore this Rule is liable to be struck down. He placed reliance on the cases of Senior Supdt of Post Office and Ors. v. Izhar Hussain , Union of India v. Shaik Ali 1990 (1) SLJ 135, and A.N. Parasuraman etc. v. State of Tamil Nadu 1990 (1) SLR 834.
7. On the other hand, Mr. Purohit contended that such relaxation is permissible under Article 16 of the Constitution of India in view of the decision rendered by the Apex Court in the case of Chief General Manager, Telecom, Kerala v. G. Renuka and Ors. .
8. In rejoinder, Mridul submitted that in view of the decisions in the cases of Indira Sawhney (supra) and S. Vinod Kumar (supra) the case of Chief General Manager v. G. Renuka (supra) should not be followed.
9. I have considered the above arguments. To decide the controversy it is necessary to read some of The provisions of the Rules of 1987 and the L.I.C. of India Class III and Class IV Employees Promotion Instruction, 1987 (for short the Instructions of 1987)
10. Rule 8 of 1987 Rules reads as follows:
8 Relaxation: The Chairman may, subject to the provisions of Sub-rule (2) of Rule 4, by general or special instruction, relax any of the provisions of these rules in case of employees belonging to the Scheduled Castes, the Scheduled Tribes, ex-emergency officers or short-commissioned officer.
11. Rule 6(1)(2) and (3) read as follows:
6 Selection of candidates for promotion: (1) There shall be prepared a Panel of all eligible employees in the order of total marks obtained on the basis of criteria of selection specified in Rule 5.
(2) Out of the panel prepared in accordance with Sub-rule (1), all the candidates in the order of merit equal to five times the number of vacancies may be called for interview the Promotion Committee:
Provided that an employee with below average work record, as per standards specified by the Chairman shall not be included in the panel prepared under Sub-rule (1).
(3) The Promotion Committee, shall, after interviewing the candidates, prepare a ranking list on the basis of the criteria laid down in the Schedule, which shall be determined on the basis of the total marks gained by the candidate for seniority, qualifications and confidential report and interview:
12. Instruction No. 2 of the Instructions of 1987 is as under:
The vacancies to be filled in by promotion will be notified by the promoting Authority before the commencement of interviews for selection of candidates for promotion.
13. Instruction no. 3 dealing with conditions of eligibility is reproduced hereunder:
3. Conditions of eligibility: Conditions of eligibility for promotion to the various cadres are given in the Schedule to the Promotion Rules. However, the following points are further clarified for guidance.
(1) XXX (2) XXX (3) XXX (4) XXX (5) Higher Grade Assistants: All Section Heads, Stenographers, Assistants and all other employees in the scale of Section Heads and Assistants are eligible to compete for the post of HGAs subject to compete for the post of HGAs subject to conditions mentioned in the Schedule. All those in the scale of Section Heads without any condition of minimum service are eligible to compete for the post of HGA. For those in the scale of Assistants with 5 years' of service, acquisition of prescribed technical qualification or a pass in the departmental tests is necessary. The technical qualification to be acquired shall be one mentioned in Note (a) of the Schedule. Employees in the scale of Assistant with at least 10 years service in that scale are allowed to compete for promotion without the requirement of passing Departmental Test or of acquisition of technical qualification." (6) XXX (7) XXX (8) XXX (9) XXX (10) XXX (11) XX
14. Instruction No. 5 which deals with the departmental tests for promotion, reads as follows:
5 Promotion/Departmental/Aptitude Test for promotion:
(1) The syllabi and the standard of Pass in the Promotion/Departmental test shall be as in Appendix II. (2) Employees who have passed the departmental test in the past will not required to pass the departmental test again for the specified cadre. (3) Employees who are eligible for exemption from the departmental test to any cadre will not be allowed to write the test. All exemptions from departmental test will be under the Promotion Rules only. (4) After the scrutiny of the applications received, a list of candidates who are eligible and are to be allowed to write the test for each cadre in each Zone of Section shall be prepared. Thereafter, separate roll number to every candidate for each test shall be allotted. (5) XXX (6) XXX (7) XXX (8) XXX (9) XXX (10) XX (11) XX (12) XX (13) XX
15. Instruction No. 6(2) provides procedure for selection for promotion to the cadre of HGAs which is to the following effect:
(2) Selection for promotion to the cadre of HGAs, HGA (Stenos), HGA (Projectionists), HGA (Programmers), HGA (Data Processing), Assistants, Record Clerks & Sepoys/Watchman/Liftmen:
A single panel of all eligible candidates viz. those who have passed the test and those who have been exempted from the test wherever prescribed will be prepared on the basis of total marks gained on the three counts namely, (i) seniority (ii) qualifications and (iii) work record. Out of the panels so prepared, candidates in the order of merit equal to 5 times the number of vacancies will be cancelled for interview.
16. Instruction 7 is with regard to relaxation in favour the Scheduled Castes/Scheduled Tribes candidates, and reads as follows:
7 Relaxation in favour of Ex-emergency/Short Service Regular commissioned Officers and Scheduled Castes/Scheduled Tribes candidates:
(1) XXX (2) Notwithstanding the provisions of Rule 6(2) of the Promotion Rules, names of all the Scheduled Castes/Scheduled Tribes employees who satisfy the conditions of eligibility for promotion shall be included in the selection panel. The Scheduled Castes/Scheduled Tribes candidates on the selection panel shall be grouped separately from those not belonging to SC/ST. They will be interviewed on a separate day either at the beginning or at the end of the programme for interviews.
17. Instruction No. 10 mandates that marks are to be allotted for promotion on the counts of (1) Seniority, (2) Qualifications,(3) Work Record and (4) Interview. It has been provided in the sub-para that the maximum marks to be allotted on the count of seniority for promotion to the cadre of H.G.A. will be 20, which will be given depending on the number of years of service as Assistants/Section Head.
In the later part of Instruction no. 10 marks not more than 5 have been provided for educational qualification depending on the academic qualification.
Then the same Instruction provides that maximum marks to be allotted for 'work record' for promotion to the cadre of HGA will be 25.
This Instruction then says that the Promotion Committee shall give marks for the interivew in integers only on the basis of merit and suitability as judged by the performance of the candidate in the interview and the maximum marks for the interview for the post of H.G.A. are 25.
18. There is a Schedule appended to the Rules of 1987 which provides at item no. 5 that for promotion to the post of Higher Grade Assistant Section heads, Stenographers, Assistants and all other employees in the scale of Section Heads or Assistants shall be eligible. The Section Heads will be eligible irrespective of their period of service, but for the Assistants and the Stenographers at least 5 years service experience in the cadre of Assistant/Stenographers is required. They must have also passed the departmental test or should have acquired the prescribed technical qualification. But the Assistants who have put in 10 years of service, are exempt from passing the departmental examination or acquiring technical qualification.
19. Having read the various provisions, we now consider the arguments. The Chairman in exercise of the power under Rule 8 of the Rules of 1987 has ordered that in the cases of the Assistants belonging to Scheduled Castes and Schedule Tribes three years experience in the scale of Assistants shall be sufficient. Thus, two years relaxation has been granted in the condition of eligibility.
20. The question for consideration is whether this relaxation offends the provisions of the Constitution of India and is liable to be struck down. In this connection, first it is to be noticed that certain posts are earmarked for the members of the reserved category and they are entitled to be promoted against those posts only. Thus the chances of general category candidates are not adversely affected even if they are selected on the basis of the relaxation in experience.
21. The efficiency also is not likely to be adversely affected for the reason that the reserve category candidates are also required to stand in the merit as per the criteria laid down in the Rules. As already stated, the marks to the maximum limit of 25 are provided for the seniority depending on the number of years of service. It is obvious that if a candidate of reserve category, who has become eligible to be considered for promotion on 2 years less service period on the basis of relaxation will get less marks under the head 'seniority' in comparison to the general category candidates who are required to put in 5 years experience. Because of their length of service, the general category candidates are bound to get more marks under the head 'seniority'. It follows that if a S.C./S.T. candidate who gets less marks under the head 'seniority' because of less service period and yet he gets higher merit, it is obviously because of getting more marks under the heads 'work record', 'educational qualifications', or 'interview', which means that despite less service experience he gets selection due to his efficiency or higher qualification. That being so, on the ground that less period of experience has been provided for the reserve category candidates, it cannot be accepted that efficiency will be on peril.
22. In the case of Akhil Bhartiya Soshit Karamchari Sangh v. UNION of India (supra) various notifications issued by the Government were challenged. One of them was Anx. H providing that the members of S.C./S.T. will be given one higher grading than the grading otherwise assignable to them on the basis of their record of service i.e. if any Scheduled Caste or Scheduled Tribe employee has been categorised by the Selection/Departmental Promotion Committee, on the basis of his record of service as 'good' he should be recategorised by the Committee as Very good', and so on. Their lordships held that this special treatment to the members of the S.C./S.T. was permissible under Article 16 of the Constitution of India. It was observed that was the method of boosting chance of selection of these depressed classes and there is nothing shady about it. In the instant case, the method adopted for giving relaxation of two years to the members of the S.C./ S.T. boosts the chances of their selection without adversely affecting the chances of general category candidates. Therefore the relaxation cannot be held to be violative of any provision of the Constitution of India.
23. In the case of State of Kerala v. N.M. Thomas (supra) there was Rule 13 AA empowering the State Government to exempt the members of S.C./S.T. for a specified period from passing the departmental test for promotion. The Constitutional Bench of the Apex Court upheld the validity of the provision holding that differential treatment in the standards of selection are within the concept of equality. It was observed that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration, but the classification of employees belonging to S.C./S.T. for allowing them an extended period of two years for passing the special test for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity to all citizens in mattes relating to employment or appointment to public office. In the instant case, despite the relaxation of 2 years in experience to the members of reserved category, they are required to stand in merit on the basis of qualification, work record and interview. Obviously Article 14 is not violated and the relaxation is in consonance with the spirit of the Constitution embodied in Articles 15 and 16.
24. Much emphasis was laid on Article 335 of the Constitution of India which requires the maintenance of efficiency of administration. As already stated, if the members of the S.C. and S.T. are selected they will be on their own merit because of getting more marks under the heads 'work record' 'qualification' or 'interview' despite the fact that they get less marks under the head 'seniority. As such, it cannot be said that the relaxation of two years given to the members of S.C./S.T. will be peril to the maintenance of efficiency of the administration. It is to be noticed that in the case of Indira Sawhney v. Union of India (supra), the Supreme Court has approved the decisions rendered in the cases of Stale of Kerala v. N.M. Thomas and Akhil Bhartiya Soshit Karamchari v. Union of India. (supra).
25. For the aforesaid reasons, the relaxation of two years given to the members of the S.C./S.T. is neither likely to adversely affect the chance of promotion of the petitioners who are of the general category, nor it is likely to adversely affect the efficiency in the work.
26. We now switch over to the second contention that in the Appendix-II only 40% pass marks have been provided for the members of the S.C./S.T. candidates whereas they are 50% for the general category candidates. The provision is in respect of the departmental test to be cleared by the Assistants for becoming eligible for promotion to the cadre of Higher Grade Assistant. It has to be accepted that this concession is impermissible in view of the decision of the Apex Court in the case of S. Vinod Kumar v. Union of India (supra). The question before their lordships was whether the provision providing for lesser pass marks in the qualifying examination for promotion to the reserved category candidates was sustainable. Relying on the observations in the case of Indira Sawhney's case (supra) it was held that it is not permissible to provide lesser qualifying marks of evaluation in favour of the reserved category candidates as it would compromise the efficiency of the administration. The ruling applies on all fours to the instant case.
27. Now about the case of Chief General Manager v. G. Renuka (supra) relied on by Mr. Purohit in which no fault was found in the provision of relaxation of marks and awarding grace marks to the S.C./S.T. candidates who had not reached the requisite standard in securing the marks for promotion. With respects, in view of the decision in the case of S. Vinod Kumar (supra) which has been decided on the basis of the principle laid down in the case of Indira Sawhney (supra) (Nine Judges Bench case) it may not be proper to uphold the validity of the provisions of relaxation in pass marks. It is relevant to state that in the case of Chief General Manager, Telecom (supra) the decision of Indira Sawhney (supra) has not been considered.
28. In my opinion, the case of S. Vinod Kumar (supra) is directly applicable to the facts of the instant case. On the basis of this authority it has to be held that the provision of less pass marks in the departmental examination for the S.C. & S.T. candidates making them eligible for promotion, is not permissible and is liable to be struck down.
29. Regarding the powers of relaxation given to the Chairman under Rule 8 it cannot be accepted that they are unguided. It has been clearly provided that the relaxation shall be made only in the case of employees belonging to the S.C/S.T., ex-emergency officers or Short-Commissioned Officers. The powers are thus not unguided. The powers of relaxation have been given keeping in view the provisions of Article 16(5) of the Constitution of India. The authorities relied on by Mr. Mridul are clearly distinguishable. In the case of Sr. Supdt. Post Office v. Izhar Hussain (supra) the provisions of Rule 2(2) of the Pension Rules were called in question wherein powers had been given to retire a pension on his completing 30 years qualifying service. It was held that since the rule gives unguided discretion to Government to retire a government servant at any time, the discretion is capable of using arbitrarily and therefore it was ultravires to Articles 14 and 16 of the Constitution of India. In the same judgment it has been observed that Rule F.R. 56(j) is valid as it provides that the power is to be exercised in public interest. Thus when it is evident from the Rule that the power is to be exercised in public interest, it cannot be said that the Rule gives unbridled powers. In the instant ease, the Rule says that the relaxation can be given only to the members of S.C. and S.T. category which is obviously to secure social justice to depressed class of persons. It is permissible under Article 16 of the Constitution. The Rule 8 thus is not liable to be struck down. The other two cases, relied on by Mr. Mridul are clearly distinguishable.
30. The result is that the provision of less pass marks to the members of S.C. & S.T. in departmental test is violative of Article 14 of the Constitution of India and is liable to be struck down. For quashing the provision of Appendix-II it is not necessary to quash Rule 8 of 1987 Rules since Appendix is not part of the Rules. The Appendix is part of the Instructions of 1987.
31. There is nothing wrong in not notifying the vacancies of HGA as the Instruction No. 2 provides that the vacancies to be filled in by promotion will be notified before the commencement of interview.
32. Consequently, it is held as follows:
(i) It is not permissible to provide only 40% pass marks in each paper for S.C./S.T. candidates against 50% in each paper for the general category candidates. The portion 'SC/ST candidates 40% in each paper' after the words '50% in each paper' in part II (Syllabi for Departmental Test for promotion to the cadre of Higher Grade Assistant) is struck down.
(ii) In other respects, the writ petition, being devoid of merit, is dismissed.