Full Judgment
B. Venkateswara Rao, Judicial Member. ...
The applicants belong to Scheduled caste community are all similarly placed and working as Junior Telecom Officers in the office of the 2nd respondent and their next promotion is to the post of Sub Divisional Engineer. On 15.7.2007, BSNL conducted Limited Departmental Competitive Examination for promotion to the grade of Sub Divisional Engineer (Group-B) in which the applicants also participated but declared as failed. Their grievance is that the respondents have fixed higher cut off mark for passing in LDCE Exam as 50% and 45% for SC and ST candidates, and not followed the instructions contained in the DOT Order No.22-5/91-NCG dated 30.11.1992 issued by the Department of Telecoms as per DOT letter No.22-5/91-NGE dated 30.11.1992, according to which failed SC candidates with 20% marks and failed ST candidates with 15% marks should be reviewed for recommendation to declare them successful. Even though there are plenty of vacancies for SC and ST candidates to be promoted as SDE, the respondents have not considered the unsuccessful candidates like the applicants in passing the examination as per DOT order dated 30.11.1992, they gave representation to the respondents on 7.10.2009 for relaxation of minimum pass marks. However. The respondents have rejected the request of the applicants vide order in No.20-23/2009-Pers.II dated 22.2.2010 and hence they have have come before this Tribunal seeking for the following reliefs:
“To quash the order passed by the 2nd respondent bearing No. 20-23/2009-Pers.II dated 22.2.2010 and direct the respondents to relax the minimum pass marks as per DOT Order No.22-5/91-NCG dated 30.11.1992 for SDE(T) in Limited Departmental Competitive Examination held on 15.7.2007 for the applicants and thus render justice.
2. The main ground urged by the applicants is that the Government of India amended Art.335 Constitution Act 2000 ie (82nd Amendment) as per which there are some relaxation/concession in awarding marks in the matter of promotion for candidates belonging to SC/ST by way of lower qualifying marks ad lesser standards of evaluation in departmental and qualifying examination. It is further stated that the total vacancies reserved for SC candidates are 720 out of which only 101 vacancies are filled and for ST against the total vacancy of 414, only 9 vacancies are filled and thus there are 619 and 405 unfilled vacancies of SCand ST candidates. The applicants further urged that considering the back log of vacancies the respondent ought to have lowered the cut off pass marks for SC/ST as per the DOT order No.22/5/91-NCG dated 13.11.1992. But the cut off marks fixed was very high ie 45% for SCand ST candidates and 50% for OC candidates as compared to the norms already prescribed by the parent department. The applicants further urge that as per BSNL leter No.16-8/2006-SCT/257 dated 28.8.2006 training/coaching should be conducted for SC/ST candidates prior to the examination in order to give adequate support and guidelines to equip them. Since the respondents have not followed the instructions contained in the letter supra and failed to conduct training/coaching, due to which many SC/ST candidates could not come out successful refusal to relax the standards of cut off marks for SC/ST employees is a direct contravention of Art. 335 of the Constitution of India. They further contend that the respondents have not gone to the merits of the representation and superficially rejected the request of the applicants to relax the minimum marks for SC/ST candidates in the LDCE. Accordingly they prayed that the impugned rejection order be quashed and the OA may be allowed.
3. The respondents have filed a reply statement wherein it is stated that earlier there was practice of reviewing of result of those SC/ST candidates who secured even zero marks as per DOT letter dated 30.11.1992. However in the letter no where it is stated to relax the qualifying marks. In this OA the applicants have misinterpreted the letter dated 30.11.1992. The examination was conducted as per Recruitment Rules of Sub Divisional Engineer(Telecom) and relaxation of 5% marks has already been given to SC/ST candidates. Same criteria was followed in the earlier exam held during 2002 and no review of the result had been carried out. Further the BSNL formulates its own Recruitment Rules for recruitment to the Post of SDE(T) Recruitment Rules, 2002 (Issue NO.1) dated 28.2.2002. There rules are separate and distinct from the RR of Group A and in respect of SC/ST candidates relaxation in qualifying standard has already been prescribed vide letterNo.2-29/2005-Pers.II dated 7.2.2007, wherein minimum pass marks prescribed for each paper is 50% in respect of OC candidates and 45% for SC/ST candidates. Despite the prescribed relaxed marks for qualifying in the examination viz 45% the applicants could not qualify in the LDCE and further relaxation in the already relaxed prescribed standard for SC/ST candidates would come in the way of maintaining administrative efficiency and will dilute the merit and adversely affect the organisation interest of the company. The respondents vehemently contend that the post of Sub Divisional Engineer(Telecom) is an all India cadre having all India transfer liability. It is an executive grade and is a Group B cadre, any further relaxation will dilute and hamper the administrative efficiency. The respondents further stated that the contention of the applicant that pre-recruitment training was not extended to SC/ST candidates prior to conducting LDCE cannot be the adequate ground for seeking relaxation in the minimum required standard to maintain efficiency of service at this late stage after the applicants failed to qualify in the LDCE for promotion to the grade of SDE(T). Thus they justified the impugned order dated 9.10.2009.
4. The applicant has filed rejoinder to the reply stating that neither order dated 30.11.1992 nor OM No.36012/23/96-Estt (REs)-Vol.II specifies that the relaxation in qualifying marks is applicable to Group C only and that mere relaxation of 5% in qualifying marks is not intended in the order dated 30.11.1992 and OM No.36012/23/96-Estt (Res)-Vol.II but it goes to the extend of 20% for SC and 15% for ST candidates. Further even in the SDE (Telecom) Recruitment Rules (Annexure III) in paragraph 8, it is specifically stated that
“Nothing in these rules shall affect reservation, relaxation of age limit and other concession required to be provided for the Schedule Caste, Schedule Tribes other Backward Classes, Ex-Service Man and other special category of persons in accordance with the orders issued by the Central Government from time to time in this regard.”
Thus the applicant reiterates that as per the recruitment rules the concession/relaxations and reservations as enumerated by the Central Government the 1st respondent through its OM and various circulars are applicable in the 2nd respondent organisation also. The applicants relied on the judgment of the Hon'ble Supreme Court in the case of Auditor General of India and other Vs. K.S. Jagannathan and another CA No.2952 of 1984 reported in (1986) 2 SCC 679 in similar matter where relaxation in standard for SC/ST candidates in qualifying examination was allowed and sought for similar benefit to be extend to the applicants also. The applicant has also stated that on earlier occasion non providing of pre recruitment training for SC/ST employees and the stand taken by the respondents that it was only for Group C employees was challenged before this Tribunal in OA 1233/2009 and the OA was allowed in favour of the applicants.
5. The respondents have also filed reply to rejoinder reiterating the contentions raised in the reply.
6. Heard the learned counsel for the respective parties and we have also gone through the documents and averments placed in support of the rival contentions.
7. Learned counsel for the applicant contended that failure on the part of the respondents to review the results of the failed SC/ST candidates for relaxation in pass marks in accordance with the OM dated 3.10.2000 amounts to violation of Art.335 of Constitution of India. Despite vacancies available for SC/ST candidates, it is incumbent on the part of the respondents to protect the interest of the SC/ST employees. However learned counsel for the respondents, relying upon the reply and additional reply reiterated that since the post of Sub Divisional Engineer is an all India cadre, any further relaxation in the already relaxed standard for SC/ST candidates will adversely affect the administrative efficiency and organization interest.
8. Having heard the learned counsel for both sides the issue that arises for our consideration is whether the respondents are justified in rejecting the request of the applicants for relaxing the minimum pass marks of SDE(T) LDCE held on 15.7.2007.
9. There is no dispute that Art.335 Constitution Act 2000 ie (82nd Amendment) provides relaxation/concession in matter of promotion for the candidates belonging to SC/ST by way of lower qualifying marks and lesser standards of evaluation in departmental and qualifying examination. The relevant Act reads as follows:
“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 qualifying marks in any examination 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.”
That apart as per BSNL letter No.16-8/2006-SCT/257 dated 28.8.2006 training/coaching should be conducted for SC/ST candidates prior to the examination in order to give adequate support and guidelines to equip them which the respondents failed to conduct. A bare perusal of DOT letter dated 30.11.1992 reveals that results of only those failed SC candidates who have secured at least 20% marks and Scheduled Tribes who have secured at least 15% marks in each paper should be reviewed. Further Department of Personnel and Training, vide OM dated 3.10.2000 ordered relaxations/concessions in matters of promotion of SC/ST candidates by way of lower qualifying marks, lesser standard of evaluation so as to protect their interest. Thus the respondents are supposed to take into account the purpose of these OM, while considering the applicants who participated in the LDCE held on 15.7.2007 for the post of SDE(T) and it is not proper on the part of the respondents to neglect the directions/instructions issued by the DOPT from time to time. That apart the applicants are entitled for the privileges provided under Art.335 of the the Constitution as has been held in the case of (1986) 2 SCC 679 Comptroller and Auditor General of India Vs. K.S. Jagannathan and another. It is relevant to peruse the para 21,22,37 of the judgment of the Hon'ble Apex Court which reads,
“21. It is now necessary to examine the nature of the discretion conferred by the said office memorandum dated January, 1977-‘Whether it is a discretionary power simplicitor or a discretionary power coupled with a duty?’. From the provisions of the constitutions referred to the above it is transparently clear that it is a discretion to be exercise in the discharge of the constitutional duty imposed by the article A 335 to take into consideration the clients of the members of the Scheduled Caste and Scheduled Tribes, consistently with the maintenance of the administration in the making of the appointments to service and posts in connection with the affairs of the Union or of a State. This duty is to be exercised in keeping with the Directive Principle laid down in Article 46 to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them fro9m social injustice and all forms of exploitation. Article 37 of the Constitution provides that the Directive Principles of State Policy contained in Pat IV of the Constitution, in which Article 46 occurs, are fundamental to the governance of the country and that it is the duty of the State to apply thee principles in making laws. As said by Murtaza Fazal Ali, J., in State of Kerala v. N.M. Thomas (at page 996 of the Reports: SCC p. 379, para 164) ‘the directive principles form the fundamental feature and the social conscience of the Constitution and the constitution enjoins upon the State to implement these directives principles.
22. The object of the said Office Memorandum dated January 21, 1977, is to provide an adequate opportunity of promotion to the members of the Scheduled Castes and the Scheduled Tribes. By reason of he provisions of Article 16(4) of the Constitution a treatment to the members of the Scheduled Castes and the Scheduled Tribes different from that given to others in matters relating to employment or appointment to any office under the State does not violate the Fundamental Right to equality of opportunity for all citizens in such matters guaranteed by Article 16(1) of the Constitution. It is now well settled by decisions of this Court that the reservation in favour of backward classes of citizens, including the members of the Scheduled Castes and the Scheduled Tribes, as contemplated by Article 16(4) can be made not merely in respect of initial recruitment but also in respect of posts to which promotions are to be made.
37. It was, however, submitted on behalf of the appellants that the authorities cannot give relaxation in such a manner to impair the efficiency of the service and that had the relaxation been given to a greater extent, it would have resulted in impairing the maintenance of efficiency of the SAS. It was further urged that under the said Office Memorandum dated January 21, 1977, relaxation is to be made provided the candidates belonging to the Scheduled Castes and the Scheduled Tribes are not found unfit for promotion. This submission would require to be accepted had it any relevance to the facts of the present case. However much one may desire to better the prospects and promote the interests of the members of the Scheduled Castes and the Scheduled Tribes, no sane thinking person would want to do it irrespective of the considerations of efficiency, or at the cost of proper functioning of the a administration and the governmental machinery. Public good and public interest both require that the administration of the government and the functioning of its services should be carried out properly and efficiently. Article 335 of the Constitution, which provides for the claims of the members of the Scheduled Castes and the Scheduled Tribes to be taken into a consideration in the making of appointments services and posts in connection with the affairs of the Union or of a State, itself requires that this should be done ‘consistently with the maintenance of efficiency of administration’. The question of impairment of efficiency of the SAS service does not, however, arise here. The relevant paragraphs of the said Manual have already been referred to but it will not be out of place in the on text of the above submission, to refer to them again. The relevant paragraphs are 197,198,199 and 207. Both the Respondents were permitted to appear in Part I of the SAS Examination and after passing such examination were permitted to appear for Part II of the SAS Examination. Under paragraph 197, they required permission of the Accountant General or Head of Office to do so. Under paragraph 198, the selection of the 55 candidates was primarily the responsibility of the Head of the Office. Under paragraph 199, the essential condition of such selection was that the candidates selected would, if qualified by examination, be likely to be efficient in all the duties of the SAS. Under paragraph 207, a certificate had to be given to each candidate that he was regular in attendance, energetic, of good moral character and business- like habits and was not likely to be disqualified for appointment to the SAS as not possessing the aptitude for the work of a holder of a post in the SAS and that he had a reasonable prospect of passing the examination. This certificate is required by paragraph 207 to be given "with due responsibility and not as a matter of form". Thus, unless some event had occurred between the date of the giving of the certificate and the final declaration of results which would disqualify a candidate from discharging the duties of a post in the SAS, he is considered to be eligible for promotion to the SAS, subject only to the condition that he passes the examination. The said Office Memorandum dated January 21, 1977, is not intended only for the Department of the Comptroller and Auditor-General of India. It also applies to all Ministries and Departments, and it has to be applied in the context OF the rules governing each Department. The condition contained in the said Office Memorandum dated January 21, 1977, that the candidates belonging to the Scheduled Castes and the Scheduled Tribes should not be found unfit for promotion is a general condition applying to all Ministries and Departments. In the case of candidates selected to appear for the SAS Examination, this condition has already been satisfied by reason of their selection as candidates. If it was considered that the Respondents would not be able to discharge the duties of the holder of a post in the SAS, they would not have been given the relevant certificate required under paragraph 207 of the said Manual. They were given such certificates and it is not open to the Appellants to take a stand contrary to what the certificates given to the Respondents state.”
In the case of Rajesh Kumar Verma Vs. State of MP and others reported in (1995) 2 SCC 129
“5. In the group of writ petitions which came up for decision before the Division Bench of the High Court, the High Court placing special reliance on this Court's decision in Director General, Telecommunications v. T.N/ Peethambaram came to the conclusion that it was not open to the State Government to reduce the minimum qualifying marks in General English and the seats made available to SC/ST candidates by virtue of the said relaxation would revert to the general category students. It may here be mentioned that in taking this view the division Bench departed from the view taken by another Division Bench of the same High Court in Amrit Bajpai v. State of M.P which judgment is produced as Annexure III at page 42 of the paper-book. This decision was brushed aside on the plea that it had not taken into consideration the decision rendered by this Court in Peethambaram case. Needless to say that in such a situation the proper course is to refer the matter to a larger Bench, a course which the subsequent Division Bench did not follow.
10. At the time of hearing learned counsel for the applicant produced communication in Letter No.138-1/2010-CSS dated 28.4.2011 wherein the respondents are directed to review the results of failed SC/ST UDCs who took part in LDCE held on 10.1.2010 for promotion to the grade of Assistant and contended that in the case of the applicants the respondents are not justified to reject their request.
11. In view of the discussion above, we are of the opinion that the respondents are not justified to reject the claim of the applicants and accordingly, the order of second respondent in No.20-23/2009-Pers.II dated 22.2.2010 is held to be unlawful and violative of Art.335 of the constitution of India and thus the same is quashed and set aside. The respondents are further directed to relax minimum pass marks as per DOT order No.22-5/91-NCG dated 30.11.1992 for SDE(T) in the LDCE held on 15.7.2007 and pass appropriate and reasoned order within a period of eight weeks from the date of receipt of copy of this order. The OA is allowed. No order as to costs.