Central Administrative Tribunal - Delhi
Goree Shankar vs Bharat Sanchar Nigam Limited on 25 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.788/2012 M.A.662/2012 New Delhi this the 25th day of September, 2013 HONBLE Mr. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) 1. Goree Shankar S/o Sh. Mool Chand Meena R/o EPT 66, P&T Colony, Sarojini Nagar, New Delhi-110023. 2. Raghubar Singh Meena S/o Shri Ganpat Singh Meena R/o EPT 40, P&T Colony, Sarojini Nagar, New Delhi-110023. ..Applicants By Advocate: Shri M.K. Bhardwaj. Versus Bharat Sanchar Nigam Limited 3rd Floor, Bharat Sanchar Bhawan Janpath, New Delhi Through its Chairman and Managing Director. ..Respondents By Advocate: Shri Sameer Aggarwal. ORDER (ORAL)
By Honble Mr. G. George Paracken, Member (J) Applicants belong to ST category and they are presently working as Junior Telecom Officer (JTO for short) (Civil) in Respondent-Bharat Sanchar Nigam Limited (BSNL for short). Their next promotional post is Sub Divisional Engineer (Civil) [SDE( C) for short]. Their grievance is that BSNL has not been filling up the post ear-marked for ST candidates by giving relaxation in terms of the G.I., M.H.A., OM No.16/8/1969-Estt (SCT) (I), dated 31.10.1969 and in terms of OM No.36012/23/96-Estt.(Res.)-Vol.II 3.10.2000.
2. The relevant facts in this case are that the BSNL has conducted a Limited Departmental Competitive Examination (LDCE for short) for the posts in the cadre of SDE( C) in the year 2008. The total strength of the said cadre was 354. The result of the aforesaid examination was declared in July, 2009 and the BSNL promoted 52 General Category candidates in May, 2010. As all the available vacancies of SC/ST candidates could not be filled up due to non-availability of SC/ST candidates, the Respondents have decided to hold another LDCE for filling up the backlog vacancies of reserved SC/ST category up to July, 2009. According to the Applicants, although the total vacancies for SC and ST candidates were 43 and 23 respectively, the Respondents have never disclosed the availability of those vacancies. The Applicants have also appeared in the aforesaid Examination held on 18.06.2011 for which the result was declared on 29.07.2011. However, the Applicants who have secured 39 and 44.5 marks respectively were not declared successful in spite of the fact that more than 20 vacancies in ST category were available. The Applicants have also stated that the ST vacancies were going unfilled for the last 10 years and the BSNL has not been taking any effective steps to fill up those vacancies.
3. Their contention is that the BSNL should have invoked the provisions contained in the aforesaid DOP&T OM dated 03.10.2000 wherein the decision of the Government has been conveyed to restore with immediate effect, the relaxations/concessions in the matter of promotion to candidates belonging to SC/ST by way of lower qualifying marks, lesser standard of evaluation that existed prior to 22.07.1997. The contention of the Applicants is that the very purpose of the said OM is to ensure that the vacancies meant for reserved categories do not go unfilled. However, the Respondents have acted contrary to the object of the aforesaid OM as they have not relaxed the minimum qualifying marks in the case of the Applicants.
4. The Respondents in their reply have submitted that there were 40 vacancies (SC 25 and ST 15) as backlog vacancies up to 08.07.2009. Accordingly, they have notified LDCE for promotion from JTO (C ) to SDE ( C) for the backlog vacancies up to that date reserved for SC/ST categories vide their Annexure R-2 letter dated 05.01.2011 and Annexure R-3 letter dated 04.02.2011. The scheme and syllabus for the said examination for promotion to the grade of SDE ( C) under 33% quota was circulated vide Respondents letter dated 12.01.2011, in which the minimum pass mark prescribed for each paper was 45% in respect of SC/ST candidates. Since the Applicants were not able to secure the relaxed minimum qualifying marks prescribed for SC/ST candidates, they were rightly not declared successful. They have also stated that the allegation of the Applicants that ST unfilled vacancies were diverted to the General Category is false. On the other hand, the true fact is that another LDCE was conducted on 18.06.2011 and the result of the same was declared vide Annexure R-4 letter dated 29.07.2011. A total number of 29 candidates (SC 25 and ST 4) were declared successful and promoted to the grade of SDE (C ) on regular basis vide Annexure R-5 letter dated 23.09.2011.
5. They have also stated that since the Applicants were not selected they had made a representation to the Director (HR) and it was disposed of by the competent authority vide Annexure R-6 letter dated 11.01.2012. In the said letter, they have informed that since the pattern of examination was changed from subjective type to objective type (OMR based) the minimum qualifying marks for OC was fixed at 50% and for SC/ST, after relaxation, it was fixed at 45%. They have also submitted that vide Annexure R-7 they have followed the guidelines/instructions contained in DOP&T OM No.36012/23/96-Estt. (Res.) Vol.II dated 03.10.2000 which has been extracted above.
6. They have also stated that the Applicants are trying to mislead this Tribunal by wrongly reading the DOP&T order dated 3.10.2000. Para 3 of the said OM states that in pursuance of the enabling proviso of Article 335 of the Constitution, it has now been decided to restore with immediate effect, the relaxations/concessions in matters of promotion for candidates belonging to SCs/STs by way of lower qualifying marks, lesser standards of evaluation that existed prior to 22.07.1997 and as contained in the instructions issued by the Department of Personnel and Training from time to time including OM No.8/12/69-Lstt.(SCI) dated 23.12.1970, No.36021/10171- Estt.(SCI) dated 21.1.1977 and Para 6 3.2 of the DPC guidelines contained in Department of Personnel and Trainings OM No.22010/5/86-Estt.(D) dated 10.04.1989. In other words, the effect of these instructions would be that the Department of Personnel and Training's OM No.36012/23/96-Estt.(Res) dated 22nd July, 1997 becomes inoperative from the date of issue of this OM.
7. They have also stated that in compliance of the aforesaid OM dated 03.10.2000 and as per standing instructions in the matter, necessary relaxation in qualifying marks has already been granted and lower qualifying marks ( 45) has been prescribed as minimum pass marks in respect of SC/ST candidates as compared to OC candidates (50) marks. Further, lowering marks will result in compromising with the standard of performance required/assigned to the post.
8. We have heard the learned counsel for the Applicant, Shri M.K. Bhardarwaj and the learned counsel for the Respondents Shri Sameer Agarwal. The grievance of the Applicants is that the Respondent-BSNL has not lowered the minimum pass marks for each paper in respect of SC/S candidates in terms of DOP&T OM No.16/8/1969-Estt (SCT)(I), dated 31.10.1969 and OM No.36012/23/96-Estt.(Res)-Vol.II dated 03.10.2000. By the aforesaid Office Memorandum dated 31.10.1969, the DOP&T has been reiterating the instructions contained in its earlier OM dated 24.06.1968 wherein it has been provided that in cases where the requisite number of Scheduled Castes/Scheduled Tribes candidates fulfilling even the lower standards are not available to fill the vacancies reserved for them, the selecting authorities should, to the extent of the vacancies reserved for Scheduled Castes/Scheduled Tribes in non-technical and quasi-technical Class-III and Class-IV Services Services/posts requiring to be filled by direct recruitment otherwise than by written examination, select for appointment the best among the Scheduled Castes/Scheduled Tribes candidates who fulfill the minimum educational qualifications laid down in the notice for recruitment/advertisement and that in order to bring them up to the minimum standard necessary for the posts and for the maintenance of efficiency of administration, they should be given in-service training. The said OM was applicable only to non-technical and quasi-technical categories of posts. It reads as under:-
M.H.A.,O.M. No.16/8/69-Estt (SCT)(1), dated 31.10.1969 Subject: Recruitment of SC/ST candidates in Classes III and IV non-technical and quasi-technical posts.
The undersigned is directed to refer to this Ministrys Office Memorandum No.24/7/67 (I)-Estt.(SCT), dated 24th September, 1968, which provides that in cases where the requisite number of Scheduled Castes/Scheduled Tribes candidates fulfilling even the lower standards are not available to fill the vacancies reserved for them, the selecting authorities should, to the extent of the vacancies reserved for Scheduled Castes/Scheduled Tribes in non-technical and quasi-technical Class-III and Class-IV Services Services/posts requiring to be filled by direct recruitment otherwise than by written examination, select for appointment the best among the Scheduled Castes/Scheduled Tribes candidates who fulfill the minimum educational qualifications laid down in the notice for recruitment/advertisement and that in order to bring them up to the minimum standard necessary for the posts and for the maintenance of efficiency of administration, they should be given in-service training. It is requested that Ministry of Finance, etc., may instruct all authorities under them to prepare a list of non-technical and quasi-technical posts in Classes III and IV under each authority to which the orders in the aforesaid Office Memorandum of 24th September, 1968, would apply. Copy of the consolidated list of such posts in respect of the Ministry/Department and its Attached and Subordinate Offices may be sent to the Commissioner for Scheduled Castes and Scheduled Tribes, Ramakrishnapuram, New Delhi and to the Ministry of Home Affairs.
2. It is also requested that while notifying vacancies in posts referred to in Para 1 above, or advertising them, it should be indicated that the posts are non-technical or quasi-technical in Classes III and IV.
9. However, the Supreme Court of India in its judgment in Indra Sawhney Vs. Union of India 1992 Supp.(3) SCC 217 considered the question of lower qualification marks etc. in terms of Article 16(4) and Article 335 of the Constitution of India which provide as under:-
Article 16 (4) (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State Article 335 Claims of Scheduled Castes and Scheduled Tribes to services and posts The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
10. In the said judgment, it was observed that Article 16 (4) does not contemplate or permit reservation in the matter of promotions. However, for several reasons stated therein, it was held that reservation in promotions already made shall continue for a period of 5 years from the date of the said judgment, i.e. 16.11.1992. Para 829 of the said judgment which is relevant in the case is reproduced as under:-
829. It is true that Rangachari (General Manager, S. Rly, Vs. Rangachari AIR 1962 SC 36) has been the law for more than 30 years and that attempts to reopen the issue were repelled in Karmanchari Sangh (Akhil Bharatiya Soshit Karamchari Sangh Vs. U.O.I. 1981 (1) SCC 246). It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the Central and State services but we are convinced that the majority opinion in Rangachari to the extent it holds, that Article 16(4) permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking into consideration all the circumstances, we direct 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. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant Rules to ensure the achievement of the objective of Article 16 (4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to do so.
11. The aforesaid provision was considered by the Madras Bench of this Tribunal in OA No.853/1993 S. Vinod Kumar Vs. Union of India decided on 28.06.1995. 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 relevant part of the said order 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."
12. The Appeal against the aforesaid order was considered by the Apex Court in S. Vinod Kumar Vs. Union of India 1996 (6) SCC 580. Vide the judgment dated 01.10.1996, the Apex Court held that in view of the various opinion expressed by different judges in Indra Swahneys case (supra), the very posing of the aforesaid question as well as its answer were erroneous and unsustainable. The relevant part of the said judgment is as under:-
7. 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.
8. 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 recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded hereinabove".
(Emphasis supplied) 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 in the matter of promotion without compromising the efficiency 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 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 now required to pass the tests within the period of exemption".
(emphasis supplied) So far as the concessions in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of lndia 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 or evaluation in favour of OECs/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 a provision for lower qualifying marks or a lesser level of evaluation.
9. To the same effect are the observations of Sawant, J. in para 549, a which we have extracted hereinabove. The learned Judge also speaks of "Concessions/Exemptions etc. such as relaxation of age, extra attempts for passing the examinations, 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.
13. It is in view of the aforesaid judgment of the Apex Court in S. Vinod Kumars case (supra), the Government of India has issued the aforesaid OM dated 22.07.1997 which reads as under:-
G.I., Dept. of Per. & Training O.M. No.36012/23/96-Estt.(Res.), dated 22.07.1997.
Subject: Lower qualifying marks/lesser standard of evaluation for SC/ST candidates in departmental qualifying/competitive examinations not permissible.
The undersigned is directed to say that in terms of instructions contained in OM No.8/12/69-Estt.(SCT), dated 23.12.1970, OM No.36021/10/76-Estt. (SCT), dated 21-1-1977, and Para 6.3.2. of the DPC Guidelines circulated vide OM No.22011/5/86-EStt. (D), dated 10-4-1989, 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 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 judgment of the Supreme Court in the case of Indra Sawhney Vs. Union of India. The Supreme Court, in the case of S. Vinod Kumar Vs. Union of India (JT 1996 (8) SC 643) has held that the provision for lower qualifying marks/lesser level of evaluation, in the matter of promotion, provided for candidates belonging to the Scheduled Castes and the Scheduled Tribes under Governments instructions, is not permissible under Article 16 (4) in view of the command contained in Article 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 Article 16 (4) in the matter of promotion, a provision for lower qualifying marks or lesser level of evaluation is not permissible in the matter of promotion, by virtue of Article 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 judgment in Indira Sawhneys case, did not save the provisions for lower qualifying marks/lesser level of evaluation.
3. It has accordingly been decided to withdraw the instructions contained in this Departments OM No.8/12/69-EStt.(SCT), dated 23.12.1970 and OM No. 36021/10/76-Estt.(SCT), dated 21-1-1977, in so far as these provide for lower qualifying marks for Scheduled Castes/Scheduled Tribes candidates in departmental qualifying/competitive examinations for promotion. Similarly, the relevant portions of Para 6.3.2. of the DPC guidelines circulated vide this Departments 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 the Scheduled Castes/Scheduled Tribes for promotion, and assessment of all candidates for this purpose will be with reference to uniform standards. Any other instructions of the Government, which provide for lower qualifying marks/lesser 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.
14. The OM dated 03.10.2000, reproduced later in this order has been issued consequent to the amendment in proviso to Article 335 which has been incorporated in the Constitution by the Constitution (Eighty-Second Amendment) Act, 2000 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 Scheduled Tribes for relaxation in qualifying marks in an 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."
By the said OM, Government of India has restored the relaxations/concessions in matters of promotion for candidates belonging to SCs/STs by way of qualifying marks, lesser standard of evaluation that existed prior to 22.07.1997 including OM No.8/12/69.Estt(SCT) dated 23.12.1970, OM No.36021/10/76.Estt(SCT) dated 21.01.1977 and Para 6.3.2. of DPC guidelines contained in DOP& OM No.22011/5/86.Estt.(D) dated 10.04.1989. The aforesaid OM dated 03.10.2000 is reproduced as under:-
No.36012/23/96-Estt.(Res)-Vol.II Government of India Ministry of Personnel, Public Grievances & Pensions (DEPARTMENT OF PERSONNEL & TRAINING) North Block, New Delhi Dated. the 3rd October, 2000 OFFICE MEMORANDUM Subject : Reservation in promotion Prescription of lower qualifying marks, lesser standard of evaluation.
The undersigned is directed to refer to Department of Personnel &.Training's OM No. 36012/23/96-1 -Estt.(Res) dated 22nd July, 1997 vide which various instructions of the Government providing for lower qualifying marks lesser standards of evaluation in matters of promotion for candidates belonging to the Scheduled Castes and Scheduled Tribes had been withdrawn, on the basis of the Supreme Court's judgment in the case of S. Vinod Kumar Vs. Union of India.
2. The undersigned is further directed to say that the matter has been reviewed, consequent to which the following proviso to Article 335 has been incorporated in the Constitution by the Constitution (Eighty-Second Amendment) Act, 2000:-
"Provided that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in an 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."
3. In pursuance of the enabling proviso of Article 335 of the Constitution, it has now been decided to restore with immediate effect, the relaxations/concessions in matters of promotion for candidates belonging to SCs/STs by way of lower qualifying marks, Lesser standards of evaluation that existed prior to 22.07.1997 and as contained in the instructions issued by the Department of Personnel and Training from time to time including OM No.8/12/69-Lstt.(SCI ) dated 23.12.1970, No.36021/10171- Estt.(SCI) dated 21.1.1977 and Para 6 3.2 of the DPC guidelines contained in Department of Personnel and Trainings OM No.22010/5/86-Estt.(D) dated 10.04.1989. In other words, the effect of these instructions would be that the Department of Personnel and Training's OM No.36012/23/96-Estt.(Res) dated 22nd July, 1997 becomes inoperative from the date of issue of this OM.
4. These orders shall take effect in respect of selections to be made on or after the date of issue of this OM and selections finalised earlier shall not be disturbed.
5. All Ministries /Departments are requested to bring these instructions also to the notice of the then Attached/Subordinate Offices and Autonomous Bodies/Public Sector Undertakings under their control for compliance.
Sd/-
(J. Kumar) Deputy Secretary to the Government of India.
15. Of course, the Apex Court has again considered the question of promotion of SCs/STs in its judgment M. Nagaraj and Others Vs. Union of India and Others 2006 (8) SCC 212 wherein 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 have been considered. By the 77th amendment, Clause 4(A) has been included in Article 16 of the Constitution which reads as under:-
"(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."
By the 81st amendment Clause 4(B) was added to the said Article which is as under:-
"(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."
By the 85th amendment Clause 4(A) ibid was further amended as under:-
2. Amendment of Article 16.- In Article 16 of the Constitution, in clause (4A), for the words "in matters of promotion to any class", the words "in matters of promotion, with consequential seniority, to any class" shall be substituted."
16. The conclusion arrived at in M. Nagarajs judgment is as under:-
CONCLUSION:
121. 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.
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, 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.
124. 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.
125. 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.
17. However, for the purpose of disposal of this OA, it is not necessary for us to go into all those aspects. Rather, it is sufficient to consider the aforesaid OM dated 3.10.2000 which reveals that in technical Group C and D posts, the Government has to keep relaxed standard without compromising on the minimum required standard but for that post. The Respondent-BSNL has adhered to the said provision in the present case. While the minimum pass marks prescribed for each paper is 50% in respect of OC candidates, the relaxed standard fixed for SC/ST candidates is 45%. The Applicants have not secured the marks as per the relaxed standard also.
18. In view of the above position, we do not find any merit in this OA and it is accordingly dismissed. No costs.
[ (Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) Rakesh