Bombay High Court
The Mahanagar Telephone Nigam ... vs The Mahanagar Telephone Ltd. ... on 28 February, 2017
Bench: R.M. Borde
1
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2045 OF 2014
1] The Mahanagar Telephone Nigam Ltd
Republican Employees Union,
through its General Secretary
Shri Dilip Ghayvat
2] Mr. M. Pratap, TTA,
MTNL Mumbai LD (Productive)
Mumbai-400 086.
3] Shri V.R. Gavali, TTA,
MTNL Mumbai LD (Productive),
Kalyan- 421 301.
....Petitioners
Vs.
1] The Mahanagar Telephone Nigam Ltd
Through the CMD & Executive Director,
Mumbai-400 028.
2] Union of India,
Through the Secretary to the Government of India
New Delhi- 110 001.
3] The Secretary to the Government of India,
Ministry of Personnel, Grievances and Pensions,
North Block, New Delhi- 110 001. ....Respondents
-------
Mr. Ashok D. Shetty for Petitioners.
Mr. Advait Sethna for Respondent No.1.
Mrs. Neeta Masurkar i/b Mr. Vinay Shankar Masurkar for Respondent
Nos.2 and 3.
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CORAM: R.M. BORDE AND
A.S. GADKARI, JJ.
Reserved On: 31st January 2017.
Pronounced On: 28th February 2017.
JUDGMENT (PER R.M. BORDE, J.):-
Heard.
2] Rule. By consent of the parties, petition is taken up for final
disposal at the admission stage.
3] The questions that are posed for our consideration in the instant
petition are (I) as to whether the Central Administrative Tribunal failed to
consider the correct interpretation of the office memorandum dated
3.10.2000, in view of the expressions "restoration" and "inoperative"
contained therein. (II) Whether the amendment incorporated in the
Constitutional provision that Article 335 will be operative for the purposes
of prescribing lower standard of assessment of S.C. and S.T. Category
candidates in matter of promotion from the date of assent of the President
of India or from the date of issuance of office memorandum by the
Government of India and the effect of the issuance of office memorandum
on 3.10.2000. (III) Whether the office memorandum read with the
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constitutional provision has an effect of restoring the position prevailing
prior to decision of the Government of India and its Order of 1997
withdrawing 1970 Order issued by the Department of Personnel relaxing
the standard for SC/ST Government employees in the departmental
competitive/confirmation and promotional examination. (IV) Whether it
would be obligatory on the part of the respondent No.3 to give effect to the
amendment of Article 335 of the Constitution of India from 3.10.2000 i.e.
the date of issuance of office memorandum by the Union of India though
the President of India assented to the amendment on 8.9.2000 and lastly
(V) the effect of the Constitutional Bench's decision in Civil Appeal
Nos.6046-6047 of 2004 in the matter of Rohtas Bhankhar & Others Vs.
Union of India & Anr. decided by the Apex on 15.7.2014.
4] The Petitioner No.1 is the Trade Union registered under the
Trade Union Act, 1926, whereas the Petitioner Nos.2 and 3 are the
members of Petitioner No.1 and employees of respondent No.1. The
respondent No.1-The Maharashtra Telephone Nigam Ltd. is the
Government India undertaking and is state within the meaning of Article 12
of the Constitution of India and as such amenable to the writ jurisdiction of
the High Court. The Respondent No.2 is the Government of India.
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5] The respondent No.1 in the year 2000 undertook a special
recruitment drive to fill up the backlog of the reserved quota/vacancies in
promotion as well as direct recruitment which were unfilled from 1995
onwards. The Respondent No.1 conducted the departmental qualifying
examination on 7.5.2000 for filling up quota/vacancies prescribed for
SC/ST categories in the year 1995 to 1999. The employees listed in para-3
of the petition, which forms category of Telecom Technical Assistant,
appeared in the said departmental qualifying examination. As per
recruitment rules, 50% of the posts are to be filled up by direct recruitment
and 50% by promotion from the departmental candidates. The Rule-8 of
the Recruitment Rules provides for concession/relaxations to be provided
for the Scheduled Castes and Scheduled Tribes, Ex-Servicemen and other
special categories of persons in accordance with the orders passed by the
Central Government from time to time. The qualifying marks prescribed
for candidates belonging to Scheduled Castes and Scheduled Tribes for
clearing the departmental examination is 33%, whereas the bench mark for
general category candidates is 40%. The respondent No.1 declared the
result on 14.9.2000 of the examination conducted on 7.5.2000 and
the candidates listed in para-3 of the petition were declared unsuccessful
at written examination. The department did not apply the
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relaxed standard though the candidates belonged to Scheduled Castes and
Scheduled Tribes categories, however, applied the general standard of
securing 40% marks at written examination.
6] The Central Government from time to time issued office
memorandums approving the relaxed standard for clearing departmental
examination in respect of candidates belonging to Scheduled Castes and
Scheduled Tribes categories. The office memorandums issued on
25.7.1970, 23.12.1970, 17.7.1971, 21.1.1977 and 31.1.1978 prescribed
relaxation of standards in departmental examination for promotion and the
departmental confirmation examination. However, after the decision of the
Supreme Court in the matter of S. Vinod Kumar Vs. Union of India &
Ors.'case (JT 1996 (8) SC 643), an office memorandum came to be issued
on 22.7.1997 laying down that there shall not be separate standard of
evaluation of candidates belonging to Scheduled Castes and Scheduled
Tribes for promotion. After enforcement of amendment to Article 335 of
the Constitution of India, with a view to give effect to the Constitutional
mandate, the Central Government issued an office memorandum dated
3.10.2000 deciding to restore relaxation/concession with immediate effect
in the matter of promotion for the candidates belonging to SC/ST
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prescribing the Lower Qualifying marks, lesser standards of evaluation that
existed prior to 22.7.1997 and as contained in the earlier office
memorandum.
7] The petitioner approached the Central Administrative Tribunal
by presenting the Original Application No.586 of 2011. The Central
Administrative Tribunal, Mumbai dismissed the Original Application
holding that the decision of the Central Government would operate from
the date of issuance of office memorandum dated 3.10.2000 and shall not
apply from the date of assent accorded by the President of India to the
amendment to Article 335 of Constitution. The Central Administrative
Tribunal took a view that the explanation to Article 335 of the Constitution
read with Article 16(4) is an enabling provision prescribing reservation in
the matters of promotions and it would be operational from the date of
issuance of office memorandum i.e. the decision of the Central
Government.
8] The office memorandum dated 25.7.1970 prescribes relaxation
of standards of selection of SC/ST candidates against the reserved
categories. A decision is taken by the Central Government that in
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case of direct recruitment by assessment through examination or otherwise
if sufficient number of Scheduled Castes and Scheduled Tribes candidates
are not available on the basis of the general standard to fill all the
vacancies reserved for such reserved categories, candidates belonging to
reserved categories may be selected to fill up the remaining vacancies
reserved for them provided they are not found unfit for such post or posts.
Thus to the extent the number of vacancies reserved for the Scheduled
Castes and Scheduled Tribes which cannot be filled on the basis of
application of general standards, candidates belonging to such reserved
categories will, as at present, be taken by relaxed standard to make up the
deficiency in the reserved quota, subject to fitness of such candidates for
appointment to the post/posts in question. The decision contained in the
office memorandum dated 25.7.1970 in respect of direct recruitment has
been made applicable in respect of departmental competitive examination
for promotion and for departmental confirmation examination.
9] The Union of India issued an office memorandum on 21.1.1977
relating to relaxation of standard in respect of Scheduled Castes and
Scheduled Tribes candidates in qualifying examination for promotion to the
higher grade on the basis of seniority subject to fitness. A decision has been
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taken to extend suitable relaxation in the qualifying standards, in such
examinations, in case of Scheduled Castes and Scheduled Tribes
candidates. The extent of relaxation is to be determined whenever such
examination is held taking into account all relevant factors including (I) the
number of vacancies reserved, (ii) the performance of Scheduled Caste/
Scheduled Tribe candidates as well as general candidates in that
examination, (iii) the minimum standard of fitness for appointment to the
post and (iv) the overall strength of the cadre and that of the Scheduled
Castes and Scheduled Tribes in the cadre.
10] In the matter of Indra Sawhney Vs. Union of India & Ors.
[1992 Supp. 3 SCC 217], the Supreme Court has declared that, the Article
16(4) does not contemplate or permit reservation in the matter of
promotion. It is clarified in para 831 that, it would not be permissible for
the State to extend concession and relaxation to members of reserved
category without compromising the efficiency of the administration. It is
further reiterated that it would not be permissible to prescribe lower
qualifying marks or lesser level of evaluation of members of reserved
category since it would compromise the efficiency of the administration. It
is further stated that it may be permissible to prescribe reasonable lesser
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qualifying marks for evaluation for the O.B.C. SC and ST consistent with
efficiency of the administration and the nature of duties attached to the
office concerned in the matter of direct recruitment. Such a course would
not be permitted in the matter of promotions for the reasons mentioned in
the judgment.
11] Placing reliance on the decision in the matter of Indra Sawhney,
the Supreme Court in the matter of S. Vinod Kumar & Anr. Vs. Union of
India & Ors. [ (1996) 6 SCC 580], held that so far as the provisions of
lower qualifying marks or lesser level of evaluation in the matter of
promotion is concerned, it is not permissible under Article 16(4) of the
Constitution in view of 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. After the
decision in the matter of S. Vinod Kumar (supra), in order to give effect
thereto, the Union Government issued an office memorandum dated
22.7.1997 where under it was decided to withdraw the instructions
contained in the office memorandum 21.1.1977, so far these provides for
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lower qualifying marks for Scheduled Caste and Scheduled Tribe
candidates in the departmental qualifying/competition examination for
promotion. It is further clarified that, the effect of the revised instructions is
that henceforth there shall be no separate standard of evaluation for
candidates of the Scheduled Caste and Scheduled Tribes and the
assessment of all the candidates for the purpose shall be with reference to
uniform standards. Post the decision in the matter of S. Vinod Kumar's
case, Article 335 of the Constitution was amended by 82 nd Amendment of
2000 and a proviso was inserted 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 for relaxation in qualifying
marks in any examination or lowering the standards of
evaluation, for any class or classes of services or posts in
connect with the affairs of the Union or of a State."
12] The proviso to Article 335 was added for providing benefit of
reservation in promotions to the Scheduled Castes and the Scheduled
Tribes categories alone. The amendment was necessitated in view of the
Judgment of the Apex Court in the matter of S. Vinod Kumar which took
the view that the relaxation in the matter of promotion in favour of
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reserved categories was not permissible under Article 16(4) in view of the
command contained in the Article 335. The Amendment to Article 335 of
the Constitution was assented by the President of India on 8.9.2000. The
Central Government thereafter issued an office memorandum on 3.10.2000
thereby restoring the relaxation prior to issuance of office memorandum
dated 22.7.1997. The paragraph-3 of the office memorandum dated
3.10.2000 reads as under:
"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 the matters of promotion
for candidates belonging to SCs/STs by way of lower qualifying
marks, lesser standards of evaluation that existed prior to
22.7.1997 and as contained in the instructions issued by the
Department of Personnel and Training from time to time
including OM No.8.12.69-Estt.(SCT) dated 23.12.1970,
No.36021/10/76-Estt (SCT dated 21.1.1977 and para 6, 3, 2 of
the DPC guidelines contained in Department of Personnel and
Training OM No.22011/5/86 Estt. (D) dated 10.4.1989. 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 issuance of this OM."
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13] The Central Administrative Tribunal considered the effect of
amendment to Article 335 of the Constitution as well as the office
memorandum dated 3.10.2000. The Tribunal took a view that, the
Constitutional Amendment Act clearly indicates that it is only an enabling
provision permitting the Government to provide relaxation, but did not
mandate the date from which it shall come into effect. The Tribunal
therefore took a view that; the benefits should be available only from the
date of the Order issued by the Government expressly providing for
relaxation. According to the Tribunal, the date of amendment of the
Constitution is not relevant, but what is relevant is the date of issuance of
an office memorandum dated 3.10.2000 i.e. the decision of the Union
Government to restore the benefits of relaxation which were earlier
withdrawn between 27.7.1997 to 2.10.2000. The Tribunal as such
concluded that, since result of the examination were declared in the instant
matter prior to the date of issuance of office memorandum, the petitioners
are not entitled to claim the benefits of relaxation and as such the Original
Application came to be dismissed.
14] The learned counsel appearing for the petitioners state that, the
office memorandum issued by the Union Government on 3.10.2000 has not
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been properly construed by the Central Administrative Tribunal. That the
office memorandum does not confer any new relaxation or any added
benefits, however, it seeks to restore relaxation/concession in the matter of
promotion for the candidates belonging to the Scheduled Castes and
Scheduled Tribes. The office memorandum has effect of restoring the
benefits and it shall apply to the case in hand. It is also contended by the
learned counsel appearing for the petitioners, that the constitutional
amendment to Article 335 enforced since 8.9.2000 shall apply and the
petitioners are entitled to claim benefit. It is further contended that the
relaxation/concessions were prevailing since year 1970 and those were
withdrawn by office memorandum issued in the year 1997. The subsequent
office memorandum dated 3.10.2000 has an effect of restoring the earlier
position/relaxations/concessions and as such it will apply to the claims post
amendment to Article 335. The learned counsel for the petitioners has
invited our attention to the Judgment in the matter of Rohtas Bhankhar's
case decided by the Constitutional Bench of the Supreme Court of India.
15] The two- Judge Bench of the Supreme Court formulated points
for consideration in the matter, those are: whether it was permissible for
authorities to fix lesser number of qualifying marks for reserved candidates
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in the matter of 'promotion'. The Bench noticed three Judgments of the
Supreme Court namely (1) Indra Sawhney, (2) S. Vinod Kumar and (3)
Kuldeep Singh and observed that in Kuldeep Singh's case the Court did not
notice the observation of majority as well as observations of Sawant, J. in
Indra Sawhney and the matter needed to be heard by a three-Judge Bench.
The Constitutional Bench dealing with the issue in para-3 of the Judgment
recorded thus:
"Though Article 16(4A) had been brought into Constitution by
the Constitution (Seventy-Seventh Amendment) Act, 1995 with
effect from 17.6.1995, S. Vinod Kumar's case did not take into
consideration this constitutional provision. In our view, S. Vinod
Kumar is per incuriam"
16] It must be noticed that in S. Vinod Kumar's case, a view was
taken relying upon Indra Sawhney's Judgment that so far as the provision
for lower qualifying marks or lower level of evaluation in the matter of
promotion is concerned, it is not permissible under Article 16(4) of the
Constitution of India in view of the command contained in the 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
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evaluation is not permissible in the matter of promotions, by virtue of
Article 335.
17] The Apex Court in the matter of Rohtas Bhankar observed that,
though Article 16(4A) had been brought into Constitution by the
Constitution (Seventy-Seventh Amendment) Act, 1995 with effect from
17.6.1995, the same was not noticed in the matter of S. Vinod Kumar's
case and as such the decision is per incurium. It must be noticed that post
decision in S. Vinod Kumar by virtue of Constitution Eighty-seven
Amendment Act, proviso has been appended to Article 335 of the
Constitution with effect from 8.9.2000. The Apex Court in the matter of
Rohtas Bhankhar also considered the view taken by the Constitutional
Bench in the matter of M. Nagraj as well as in the matter of Kuldeep Singh
and agreed with the decision in Kuldeep Singh's case and approved the
same. In para-10 of the Judgment in the matter of Rohtas Bhankhar the
Apex Court observed thus:
"We are respectful agreement with the decision in Kuldeep
Singh 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
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Tribunal") has followed S. Vinod Kumar 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"
18] The Supreme Court in the matter of Rohtas Bhankhar while
allowing the appeal has also set aside the memorandum dated 22.7.1997
declaring it to be illegal. The effect of declaration of office memorandum
dated 22.7.1997 illegal is that, the earlier position existed prior thereto
stands restored. In the matter before the Supreme Court a direction was
issued to modify the results of Limited Departmental Competitive
Examination conducted for selection of Section Officers/Stenographers by
providing for reservation and to extend all consequential benefits to the
appellants before the Supreme Court. The same course needs to be adopted
in the instant matter. It would be appropriate to refer to some of the
observations in the matter of Kuldeep Singh. The Supreme Court in the
matter of Kuldeep Singh in para 22 of the Judgment has observed that,
"The object of the said Office Memorandum dated 21.1.1977, is to provide
an adequate opportunity of promotion to the members of the Scheduled
Castes and the Scheduled Tribes. By reason of the provisions of Article
16(4) of the Constitution a treatment to the members of the Scheduled
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Castes and the Scheduled Tribes different from that given to others in the
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 the Supreme 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". The said view taken in the Kuldeep Singh's case has been conferred
by the Constitutional Bench in the matter of Rohtas Bhankhar.
19] The Constitutional Bench in the matter of Rohtas Bhankhar
observed that the view taken by the Central Administrative Tribunal is
unsustainable and deserves to be set aside. The Apex Court in the matter of
Rohtas Bhankhar's case has specifically declared the office memorandum
dated 22.7.1997 to be illegal. The office memorandum issued post
constitutional amendment dated 3.10.2000 also restored the
benefits/concessions/relaxations prevailing prior to 22.7.1997 and it does
not confer any new benefit. The view taken by the Tribunal that the
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decision of the Union Government granting relaxation in favour of
Scheduled Castes and Scheduled Tribes categories candidates in the matter
of promotion would apply after issuance of office memorandum, is
unsustainable. Since the Supreme Court had declared office memorandum
to be illegal and even otherwise looking to the language applied in the
memorandum dated 3.10.2000, view taken by the Central Administrative
Tribunal that the decision of granting relaxation would apply post issuance
of memorandum is unsustainable. The view as taken by the Tribunal if
permitted to hold the field, it would defeat and frustrate the public policies
in the matter of reservation. For the aforesaid reasons, the writ petition
deserves to be allowed.
20] For the reasons recorded above, we pass following order:
(i) The Writ Petition is allowed.
(ii) The Order passed by the Central Administrative Tribunal
dated 14th March 2014 is hereby quashed and set aside.
(iii) The respondents are directed to give effect to the office
memorandum dated 17.6.1995 and apply it to the cases of the
petitioners and issue appropriate consequential orders.
(iv) The office memorandum shall be deemed to apply since the
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earlier decision withdrawing the concession dated 22.7.1997 has
been declared to be illegal by the Constitutional Bench in the
matter of Rohtas Bhankhar's case.
21] Rule is accordingly made absolute. There shall be no order as to
costs.
(A.S. GADKARI,J.) (R.M. BORDE, J.)
