Reservation

Justice restored

Print edition : August 22, 2014
The Supreme Court restores a 1970 order relaxing norms in inter-departmental competitive examinations for S.C./S.T. candidates and upholds the constitutionality of reservation in promotions.

ROHTAS BHANKHAR, 50, has been employed in Central government service for almost three decades, 10 years of which has he spent fighting a legal battle against an arbitrary rule effected by the Union Department of Personnel and Training (DoPT) denying timely promotions to candidates belonging to the backward classes.

Bhankhar and 39 others employed in various government departments are a happy lot today after the Supreme Court in its July 20 judgment (in Rohtas Bhankhar and Others vs Union of India) upheld reservation in promotions for the Scheduled Castes and the Scheduled Tribes (S.C./S.T.); their promotions to the posts of section officer were withheld after the DoPT in 1997 withdrew a 1970 order relaxing norms in departmental competitive and promotion examinations for S.C./S.T. employees. The case shows how arbitrary changes in service rules have deprived candidates belonging to the backward classes of the substantive benefits of promotions.

Bhankhar and the other candidates had appeared for the Central Secretariat Service Section Officers examination, an interdepartmental competitive examination conducted by the Union Public Service Commission (UPSC), in December 1996. The Supreme Court had in a judgment in the same year held that the provision for lowering qualifying marks/standards of evaluation was not permissible under the Constitution. Implementing the judgment, the government in 1997 withdrew its 1970 order relaxing standards for S.C. and S.T. candidates in departmental competitive examinations and in departmental confirmation tests.

According to Rule 8 of the notified examination rules, a relaxation in the standards was permitted for candidates belonging to the S.C. and S.T. category. It says: “Provided that candidates belonging to the Scheduled Castes or the Scheduled Tribes may, to the extent of the number of vacancies reserved for the Scheduled Castes and Scheduled Tribes cannot be filled on the basis of the general standard, be recommended by the commission by a relaxed standard to make up the deficiency in the reserved quota subject to the fitness of these candidates for inclusion in the select list for each category irrespective of their ranks in the order of merits at the examination.”

Seven months after the examination was conducted in December 1996, the DoPT issued an office memorandum withdrawing the relaxations provided in the earlier service rules. The result of the examination was withheld for almost a year. In 1998, the department issued another notification deleting Rule 8 and amended the Central Secretariat Service Section Officers’ Grade Regulations, 1964, with retrospective effect from 1997. The explanatory note, along with the amendment, said that the amendment was being carried out in compliance with the Supreme Court’s judgment (1996) in S. Vinod Kumar vs Union of India, whereby relaxation of standards for making up the deficiency in the reserved quota was rendered legally invalid and unenforceable. The results of the December 1996 examination were declared in February 1998 qualifying 177 candidates. However, all the reserved vacancies remained unfilled. Only three candidates belonging to the S.C. category qualified the examination as they met the cut-off marks for the general standard.

The recent judgment has declared the 1997 DoPT’s office memorandum illegal and directed the government and the UPSC to modify the results of the 1996 examinations “by providing for reservation and extend all consequential reliefs to the appellants, if not granted so far”.

Bhankhar, whose appeal to the UPSC and the DoPT earlier had fallen on deaf ears, said: “I approached the National Commission for Scheduled Castes and Scheduled Tribes, the DoPT, and the UPSC in 1997 protesting against this arbitrary move, but nothing came out of it. I became a section officer only in 2003. This was seven years after taking the departmental examination. Some of my colleagues who had joined work around the same time as I did, have moved ahead in their careers. I got a promotion, which I was eligible for within four years of my service, almost after a decade.”

In response to a Right to Information petition filed in 1999, the UPSC had informed the applicant that after discontinuation of relaxed qualifying standards in favour of S.C./S.T. candidates, 29 seats for S.C. candidates and 31 seats for S.T. candidates for the posts of section officer remained vacant in 1997.

In 1998, the Central Administrative Tribunal (CAT) rejected an application filed by the aggrieved candidates. Advocate Krishan Singh Chauhan, who argued for the appellants in the Supreme Court, narrated the legal battle that followed. “A special leave petition was filed before a Division Bench of the Supreme Court in 1998. It was then referred to a three-judge Bench in 1999. In December 1999, the three-judge Bench referred the matter to a Constitution Bench. The petition was listed for hearing in 2004. The final arguments in the case began in July 2014.”

Reservation in promotion for S.C./S.T. candidates has been a contentious issue, with the stance of the apex court itself not being consistent. The provision of reservation in promotions has been perceived as anti-merit and working against the efficiency of the administration. The judgments of the apex court are informed by various interpretations of Article 16(4) of the Constitution, which provides for reservation to ensure the equality of opportunity, and Article 335, which provides for reservation, which is consistent with ensuring the efficiency of the administration.

In Indra Sawhney vs Union of India, 1992, a nine-judge Bench of the Supreme Court, while upholding the constitutional validity of reservation, did not permit the lowering of qualifying marks for a State. The judgment said: “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.” In 1996, the Supreme Court in S. Vinod Kumar & Another vs Union of India, relying on the earlier judgment, held that the provision for lower qualifying marks or standard of evaluation was not permissible under Article 16 (4) in view of Article 335. Article 335 enjoins that the claims of the members of the S.C. and S.T. shall be taken into consideration, consistently with the maintenance of efficiency of the administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

Meanwhile, Article 16 (4A), allowing for reservation in promotions, was included in the Constitution in 1995 through the 77th amendment. The judgment in the S. Vinod Kumar case, the Supreme Court held in its July verdict, did not take this amendment into consideration.

In Superintending Engineer, Public Health, UT Chandigarh vs Kuldip Singh, 1997, the Supreme Court held that in the light of the 77th amendment, the claims of the S.C./S.T. candidates shall be taken into consideration in the matters of appointments and promotions.

In 1999, the apex court in Haridas Parsedia vs Urmila Shakya observed that in the case of departmental promotion examinations, held exclusively for S.Cs and S.Ts, the qualifying marks/standards could be lowered to the extent of 10 per cent.

Subsequently, in 2000, Parliament, through the 82nd amendment to the Constitution, inserted a proviso to Article 335 providing for relaxation in the matters of promotion for S.C./S.T. candidates to any class or classes of services of post in connection with the affairs of the Union or of a State.

In 2006, the court upheld the constitutional validity of the 77th and 82nd amendments in M. Nagaraj and Other vs Union of India.

The judgment in Rohtas Bhankhar and Others vs Union of India has reiterated the constitutionality of reservation in promotions. The Bench, comprising Chief Justice R.M. Lodha and Justices J.S. Khehar, J. Chelameswar, A.K. Sikri and R.F. Nariman, observed: “We are in respectful agreement with the decision in Kuldip Singh and approve the same.” It also stated that the CAT, in this instance, followed the S. Vinod Kumar judgment which is not a “good law” and declared the office memorandum issued by the DoPT in 1997 illegal.

Bojja Tharakan, senior advocate in the Andhra Pradesh High Court, told Frontline: “The spirit of the Constitution is in favour of substantive affirmative action which makes a real difference in the lives of people from S.C./S.T. categories. There are occasions when the apex court has failed to honour these commitments, but the balance has been restored in subsequent judgments. However, the resentment of upper-caste candidates continues.”

International precedents


Those in favour of reservation in promotions argue that they ensure substantive equality of opportunity for S.C./S.T. candidates and go beyond the token gesture of reservation in public service. Pointing to international precedents, Chauhan said: “Even the Supreme Court of the United States of America in U.S. vs Philip Paradise, 1987, upheld relaxation of promotion criteria for black candidates.”

In 1972, a district court in the U.S. issued an order imposing a hiring quota on the Alabama Department of Public Safety for blacks and urged the department not to engage in discrimination in hiring practices and promotions. Upholding the district court order, the U.S. Supreme Court held in 1987 that “the race-conscious relief ordered by the district court is justified by a compelling governmental interest in eradicating the department’s pervasive, systematic, and obstinate discriminatory exclusion of blacks.”

The Indian Supreme Court’s verdict is a timely intervention in the context of continuing discrimination against S.C./S.T. employees in public service. Bhankhar said, “The court order assumes importance at a time when government offices are gradually looking at outsourcing many of their functions to private parties. The provision of relaxation and affirmative actions are not available on deputation.”

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