S S. Sharma & Ors Vs. Union of
India & Ors [1980] INSC 209 (10 November 1980)
PATHAK, R.S.
PATHAK, R.S.
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 588 1981 SCR (1)1184 1981
SCC (1) 397
ACT:
Central Secretariat Service Rules-Rule 12
sub-rule 2(a) and Central Secretariat Service Grade I (Limited Department
Competitive Examination for filling vacancies reserved for Scheduled Castes and
Scheduled Tribes) Regulation 1979- Whether violates Articles 14, 15 and 16 of
the Constitution.
HEADNOTE:
The Central Secretariat Service (Amendment)
Rules 1979 which inserted sub-rule (2a) below sub-rule (2) of Rule 12 of the
Rules provided for the holding of a limited departmental competitive
examination, including a statement of the conditions of eligibility and
indicating how the selection would take place on such examination.
The next higher category in the Central
Secretariat Service above the Section officers' Grade consists of Grade I
posts. Recruitment to the Grade I posts are made under Rule 12 of the Central
Secretariat Service Rules. For the purpose of such promotion a select list is
prepared.
Pursuant to an office Memorandum issued by
the Department on 20th July, 1974, 15%, and 7%, of the promotion posts stand
reserved for Scheduled Caste and Scheduled Tribes candidates respectively.
The petitioners were permanent Section
officers in the Central Secretariat Service and officiating as Under
Secretaries in different Ministries. They along with several other officials
were included in the field of selection for the purpose of drawing up the
select list for the year 1977 for promotion to Grade I posts. Twenty-seven
vacancies reserved for members of the Scheduled Castes and Scheduled Tribes,
remained unfilled because no candidate belonging to those categories was found
suitable. For the purpose of filling those reserved vacancies, the Government
of India decided to hold a limited departmental competitive examination
confined to members of the Scheduled Castes and Scheduled Tribes.
The petitioners argued that (i) the
reservation of vacancies for members of the Scheduled Castes and Scheduled
Tribes by the office Memorandum dated 20th July, 1974 was invalid (ii) the
newly enacted sub-rule (2a) of Rule 12, in the Central Secretariat Service
Rules and the related regulations were invalid and the rule operated
prospectively only and could not affect the 27 vacancies to be filled in the
select list of 1977. The Respondents took a preliminary objection that it was
not a contention raised in the writ petitions and should not be allowed to be
raised for the first time by way of oral submission.
Dismissing the petition.
HELD: 1. The entire scope of the petitions is
limited to challenging the validity and application of the Central Secretariat
Service (Amendment) Rules, 1979 and the consequent regulations for holding a
limited departmental competitive examination. No relief has been sought for
quashing the office Memorandum dated 20th July, 1974. No ground has been taken in the writ petitions assailing the validity of the office Memorandum. The
Courts should 1185 ordinarily insist on the parties being confined to their
specific written pleadings and should not be permitted to deviate from them by
way of modification or supplementation except through the well-known process of
formally applying for amendment. It is not that justice should be available to
only those who approach the court confined in a straight jacket; but there is a
procedure known to the law, and long established by codified practice and good
reason, for seeking amendment of the pleadings. [1189D-F] If undue laxity and a
too easy informality is permitted to enter the proceedings of a court, it will
not be long before a contemptuous familiarity assails its institutional dignity
and ushers in chaos and confusion undermining its effectiveness. [1189 F-G]
Oral submission raising new points for the first time tend to do grave injury
to a contesting party by depriving it of the opportunity, to which the
principles of natural justice held it entitled, of adequately preparing its
response. [1189G-H] Whether or not reserved vacancies should be dereserved is a
matter falling primarily within the administrative discretion of the
Government. There is no right in candidates seeking to fill vacancies belonging
to the general category to insist on dereservation of reserved vacancies so
long as it is possible in law to fill the reserved vacancies. If at all, a
claim in that behalf can arise only if no valid arrangement can be made for
filling the reserved vacancies and dereservation is called for by reason of the
prohibition, in clause (v) of paragraph 2 of the office memorandum dated 20th
July, 1974, against the carry forward of reservations from year to year in the
event of an adequate number of Scheduled Caste and Scheduled Tribe candidates
not being available in any particular year.
Before reaching this extremity, the
Government acts wholly within its power in adopting an alternative arrangement
for filling the reserved vacancies. Dereservation as a process should be
resorted to only when it is not reasonably possible, within the contemplation
of law, to fill the reserved vacancies. The process of dereservation would
otherwise be antagonistic to the principle embodied in Article 16(4) and
Article 46 of the Constitution. [1190G-F]
3. Once a decision has been taken to reserve
vacancies for a backward class of citizens, the programming effected to that
end should not be disturbed unless the avenues for fulfilling it have been
explored and have failed. It is only reasonable that the Government should
dereserve the vacancies in view of the prohibition against carrying them
forward to the next year. [1190 G-H, 1191B]
4. The question of holding the examination
arises only, as sub-rule (2a) of rule 12 declares that when the reserved vacancies
cannot be filled because eligible officers from the Scheduled Castes and
Scheduled Tribes are not available through the original process. Resort to the
further process arises because of the constitutional mandate in favour of
Scheduled Castes and Scheduled Tribes because reserved vacancies must be filled
if that is possible. It has not been shown that the general category vacancies
have remained unfilled for want of suitable candidates. No need has arisen of
being compelled to resort to a further process of selection in regard to such
vacancies. There is no requirement in law that the select list pertaining to a
particular year must be finalized within that year. [1191 E- G, 1192 B] It is
open to the Government to complete the process of selection and finalise it
after the expiry of that year. It seems that when the Government found that
suitable candidates belonging to the Scheduled Castes and Scheduled Tribes 1186
were not available for inclusion in the field of selection, it decided to
consider the advisability of adopting some other mode of filling the reserved
vacancies. The select list for 1977, which included already ninety-one names of
officers appointed to the general category vacancies, was held in abeyance for
the purpose of filling the twenty-seven reserved vacancies. After discussion
with the Chairman of the Union Public Service Commission and consideration of
the alternatives before it the Government decided on holding a limited
departmental competitive examination. As long as the select list was not
declared final, no officer could claim any right. [1192B-E]
6. It is now well accepted, and has been
affirmed by successive decisions of this Court, that relaxed eligibility
criteria would be justified in the case of candidates of backward classes. The
principle finds expression also in the original rule 12 of the Central
Secretariat Service Rules.
The record indicates that the lower
eligibility standard was decided on after consultation with the Chairman of the
Union Public Service Commission. [1192-GH, 1193A] General Manager, Southern
Railway v. Rangachari, [1962] 2 S.C.R. 586 M. R. Balaji v. State of Mysore [1963] Supply.
1 S.C.R. 434 State of Kerala v. N. M. Thomas.
[1967] 1 S.C.R. 906, affirmed.
ORIGINAL JURISDICTION: Writ Petition Nos. 626-630
of 1979.
(Under Article 32 of the Constitution)
Raghubir Malhotra, Yash Pal, N. D. Garg and S. K.Bisaria for the Petitioners.
Miss. A Subhashini for Respondent No. 1.
S. T. Desai, Miss Bina Gupta and Praveen
Kumar for other Respondents.
The Judgment of the Court was delivered by
PATHAK, J.-The petitioners have filed these writ petitions under Art. 32 of the
Constitution challenging the validity of the Central Secretariat Service
(Amendment) Rules, 1979 and of the Regulations made consequent thereto by the
Union of India for the purpose of holding a departmental competitive
examination limited to candidates belonging to the Scheduled Castes and
Scheduled Tribes for filling up vacancies reserved for those categories in
Grade I of the Central Secretariat Service.
The petitioners are permanent Section
Officers in the Central Secretariat Service and almost all of them are
presently officiating as Under Secretaries in different Ministries. The next
higher category in the Central Secretariat Service above the Section Officers'
Grade consists of Grade I posts. Recruitment to the Grade I posts are made
under Rule 12 of the Central Secretariat Service Rules; vacancies are filled by
the promotion of, inter alia, permanent officers of the Section officers' Grade
who satisfy certain prescribed qualifications. For the purpose of such
promotion a select list is prepared.
1187 The preparation of the select list is
governed by the Central Secretariat Service (Promotion to Grade I &
Selection Grade) Regulations, 1964. The select list is to be prepared once
every year. The names of eligible officers are arranged in a single list by the
Department of Personnel & Administrative Reforms in the Cabinet Secretariat
in accordance with the field of selection determined by the Selection
Committee. Pursuant to an Office Memorandum issued by the Department on 20th
July, 1974, 15% and 7/12% of the promotion posts stand reserved for Scheduled
Caste and Scheduled Tribe candidates respectively.
The petitioners along with several other officials
were included in the field of selection for the purpose of drawing up the
select list for the year 1977 for promotion to the Grade I posts. After an
interview by the Selection Committee, ninety-one unreserved vacancies were
filled from the first ninety-one candidates in the general category.
Twenty-seven vacancies, reserved for members
of the Scheduled Castes and Scheduled Tribes, remained unfilled because no
candidate belonging to those categories was found suitable for including in the
field of selection. For the purpose of filling those reserved vacancies, the
Government of India decided to hold a limited departmental competitive
examination confined to members of the Scheduled Castes and Scheduled Tribes.
Accordingly, the President enacted the Central Secretariat Service (Amendment)
Rules, 1979 whereby sub-rule (2a) was inserted below sub-rule (2) of Rule 12 of
the Central Secretariat Service Rules. Regulations, described as the Central
Secretariat Service Grade I (Limited Departmental Competitive Examination for
filling the vacancies reserved for Scheduled Castes and Scheduled Tribes)
Regulations, 1979 were promulgated providing for the holding of a limited
departmental competitive examination, including a statement of the conditions
of eligibility and indicating how the selection would take place on such
examination. The first such examination was scheduled for July, 1979.
The case of the petitioners in the writ
petitions is that the Government of India was not empowered to fill up the
reserved vacancies by recourse to a departmental competitive examination for
candidates from the Scheduled Castes and Scheduled Tribes and that instead the
Government should have dereserved the vacancies and made them available to
candidates falling under the general category. Had that been done, the
petitioners say, they would have been considered for promotion and, having
regard to their position in the select list, they allege that they stood a
probable chance of being promoted to Grade I. The petitioners pray that the
amendment of 1188 Rule 12, Central Secretariat Service Rules and the framing of
regulations pursuant to the amendment should be declared ultra vires, and
alternatively the amendment of the rules and the framing of the related
regulations be regarded as prospective only and not affecting the twenty-seven
reserved vacancies pertaining to the year 1977. It is also prayed that the
Union of India should be directed to take immediate steps for de-reserving the
twenty-seven vacancies for the year 1977 and upon such de-reservation the
petitioners be considered for filling those twenty-seven vacancies.
The reservation of vacancies for Scheduled
Castes and Scheduled Tribes in promotion posts from class II to class I of
Government services flows from the Department of Personnel & Administrative
Reforms Office Memorandum No.
10/41/73-Estt. (SCT), dated 20th July, 1974.
Paragraph 2 of the Office Memorandum spells out how the vacancies should be
filled up. The selection is made from among Scheduled Caste and Scheduled Tribe
officers who are within the normal zone of consideration. If candidates
qualifying on the basis of merit with due regard to seniority do not fill up
all the reserved vacancies, those remaining unfilled are to be filled by
selecting candidates of the two communities who are in the zone of
consideration irrespective of merit but subject to their being considered fit
for promotion. A select list is then prepared of all the selected officers,
general as well as those belonging to Scheduled Castes and Scheduled Tribes,
arranged in the order of merit and seniority according to principles laid down
by the Ministry of Home Affairs. For determining the number of vacancies to be
reserved for Scheduled Castes and Scheduled Tribes in a select list, a separate
roster prescribed by an Office Memorandum dated 22nd April, 1970 is followed.
Then, the relevant provision declares:
"If, owing to non-availability of
suitable candidates belonging to Scheduled Castes or Scheduled Tribes, as the
case may be, it becomes necessary to de-reserve a reserved vacancy, a reference
for de-reservation should be made to this Department indicating whether the
Scheduled Castes/Scheduled Tribes candidates eligible for promotion in reserved
vacancies have been considered in the manner indicated in this Office
Memorandum." A further provision prohibits the carrying forward of
reservations from year to year in the event of an adequate number of Scheduled
Caste and Scheduled Tribe candidates not being available in any particular
year.
1189 Shri Raghubir Malhotra, appearing on
behalf of the petitioners, opened with the contention that the reservation of
vacancies for members of the Scheduled Castes and Scheduled Tribes by the
Office Memorandum dated 20th July, 1974 was invalid. It was urged that the
Office Memorandum possessed at best the status of departmental instructions and
could not amend the Central Secretariat Service Rules.
It is not, it was said, a case of
administrative instructions filling any gap or area left uncovered by that body
of rules but, on the contrary, it is a case where administrative instructions
have been made inconsistently with the rules. At the outset an objection was
taken by the respondents to our entertaining the contention because, they point
out, it is not a contention raised in the writ petitions and should not be
allowed to be raised for the first time by way of oral submission in the course
of arguments during the final hearing of the writ petitions. It is not denied
by learned counsel for the petitioners that the point has not been specifically
and clearly raised in the writ petitions, but he asks us to consider it by
reason of what he describes as "its fundamental importance". We have
carefully perused the writ petitions, and it is plain that the entire scope of the
petitions is limited to challenging the validity and application of the Central
Secretariat Service (Amendment) Rules, 1979 and the consequent regulations for
holding a limited departmental competitive examination. No relief has been
sought for quashing the Office Memorandum dated 20th July, 1974. No ground has
been taken in the writ petitions assailing the validity of the Office
Memorandum on the basis now pressed before us. We are of opinion that the
courts should ordinarily insist on the parties being confined to their specific
written pleadings and should not be permitted to deviate from them by way of
modification or supplementation except through the well-known process of
formally applying for amendment. We do not mean that justice should be available
to only those who approach the court confined in a straight jacket. But there
is a procedure known to the law, and long established by codified practice and
good reason, for seeking amendment of the pleadings. If undue laxity and a too
easy informality is permitted to enter the proceedings of a court it will not
be long before a contemptuous familiarity assails its institutional dignity and
ushers in chaos and confusion undermining its effectiveness. Like every public
institution, the courts function in the security of public confidence, and
public confidence resides most where institutional discipline prevails. Besides
this, oral submissions raising new points for the first time tend to do grave
injury to a contesting party by depriving it of the opportunity, to which the
principles of natural justice hold it entitled, of adequately preparing its
response.
1190 We must, therefore, decline to entertain
the point now raised concerning the validity of the Office Memorandum.
We shall now proceed directly to the
principal contentions raised in the writ petitions. It is first contended that
sub-rule (2a) of Rule 12, newly enacted in the Central Secretariat Service
Rules, and the related Regulations, providing for a limited departmental
competitive examination for members of the Scheduled Castes and Scheduled
Tribes are invalid because the Central Government should have dereserved the
twenty-seven vacancies when it was found that suitable Scheduled Caste and
Scheduled Tribe candidates were not available for inclusion within the field of
selection. There is no merit in this contention. Whether or not reserved
vacancies should be de- reserved is a matter falling primarily within the
administrative discretion of the Government. There is no right in candidates
seeking to fill vacancies belonging to the general category to insist on
dereservation of reserved vacancies so long as it is possible in law to fill
the reserved vacancies. If at all, a claim in that behalf can arise only if no
valid arrangement can be made for filling the reserved vacancies, and
dereservation is called for by reason of the prohibition, in clause (v) of
paragraph 2 of the Office Memorandum dated 20th July, 1974, against the carry
forward of reservations from year to year in the event of an adequate number of
Scheduled Caste and Scheduled Tribe candidates not being available in any
particular year.
Before reaching this extremity, the
Government acts wholly within its power in adopting an alternative arrangement
for filling the reserved vacancies. Dereservation as a process should be
resorted to only when it is not reasonably possible, within the contemplation
of law, to fill the reserved vacancies. The process of dereservation would
otherwise be antagonistic to the principle embodied in Article 16(4) and
Article 46 of the Constitution. Paragraph
10.4 in the Brochure on Reservation of
Scheduled Castes and Scheduled Tribes in the Services, prepared by the
Government of India, provides that dereservation should be proposed only when
such a course becomes inevitable due to non- availability of Scheduled Caste
and Scheduled Tribe candidates for appointment against the reserved vacancies
after having fully observed the procedure prescribed in this behalf and after
applying relaxed standards in the case of such candidates. Once a decision has
been taken to reserve vacancies for a backward class of citizens, the
programming effected to that end should not be disturbed unless the avenues for
fulfilling it have been explored and have failed. If the petitioners can
succeed in showing that the provisions in the Central Secretariat Service
Rules, and the consequent Regulations, 1191 providing for holding the limited
departmental competitive examination are ultra vires and void and there is no
evidence of any other appropriate arrangement for filling the reserved
vacancies they may have a case for contending that as there is no prospect of
finding suitable Scheduled Caste and Scheduled Tribe candidates for appointment
to the reserved vacancies it is only reasonable that the Government should
dereserve the vacancies in view of the prohibition against carrying them
forward to the next year.
That takes us then to the validity of
sub-rule (2a) of rule 12 of the Central Secretariat Service Rules and the
Regulations of 1979. Their validity is challenged by the petitioners on the
ground that they violate Articles 14, 15 and 16 of the Constitution inasmuch as
they result in two avenues of promotion for Government servants belonging to
the Scheduled Castes and Scheduled Tribes, while a single avenue only of
promotion is available to other Government servants. Ex facie, the contention
must fail. The two avenues of promotion pointed out by learned counsel for the
petitioners consist in, one, the preparation of a list of officers falling
within the field of selection, both of the general category as well as members
of Scheduled Castes and Scheduled Tribes and their selection on the basis of
the principles laid down and, two, the selection of candidates of Scheduled
Castes and Scheduled Tribes consequent upon the limited departmental
competitive examination. While considering this submission, we must remember
that resort to the limited departmental competitive examination is not
simultaneous with the preparation of the list embodying the field of selection.
The question of holding the examination arises only, as sub-rule (2a) of rule
12 declares, when the reserved vacancies cannot be fined because eligible
officers from the Scheduled Castes and Scheduled Tribes are not available through
the original process. Resort to the further process arises because of the
constitutional mandate in favour of Scheduled Castes and Scheduled Tribes,
because reserved vacancies must be filled if that is possible. The petitioners
could complain if such a need arose in respect of general category vacancies
and was not supplied. It has not been shown that the general category vacancies
have remained unfilled for want of suitable candidates. No need has arisen of
being compelled to resort to a further process of selection in regard to such
vacancies. In the circumstances, it is not possible to see how a legitimate
complaint can be laid by the petitioners on the basis alleged before us. It has
been urged that the decision of the Government not to dereserve the twenty-seven
vacancies is vitiated by legal malice. Having regard to the considerations to
which we have adverted, we see no substance in that submission.
1192 The next contention on behalf of the
petitioners is that sub rule (2a) of rule 12 enacted in 1979 operates
prospectively only and cannot effect the twenty-seven vacancies to be filled in
the Select List of 1977. The argument proceeds on the assumption that the
Select List of 1977 must be completed during the year 1977. The submission is
formed in fallacy. There is no requirement in law that the Select List
pertaining to a particular year must be finalised within that year. It is open
to the Government to complete the process of selection and finalise it after
the expiry of that year. It seems that when the Government found that suitable
candidates belonging to the Scheduled Castes and Scheduled Tribes were not
available for inclusion in the field of selection, it decided to consider the
advisability of adopting some other mode of filling the reserved vacancies. It
appears that on 10th August. 1978 the Government stated in Parliament that as
no Scheduled Caste and Scheduled Tribe officers could be included in the field
of consideration proposals for filling the vacancies through some special
method had been taken up with the Union Public Service Commission. The Select
List for 1977, which included already ninety-one names of officers appointed to
the general category vacancies, was held in abeyance for the purpose of filling
the twenty-seven reserved vacancies.
After discussion with the Chairman of the
Union Public Service Commission and consideration of the alternatives before it
the Government decided on holding a limited departmental competitive
examination. As long as the Select List was not declared final, no officer
could claim any right. In the aforesaid circumstances, it is not possible to
say that in holding the departmental competitive examination the Government was
applying sub-rule (2a) of rule 12, and the Regulations, retrospectively.
A grievance has also been made of the
circumstance that the qualifying standard for Scheduled Caste and Scheduled
Tribe candidates appearing at the limited departmental competitive examination
is as low as four years approved and continuous service in the Section officer's
Grade, while a period of ten years is insisted on in the case of officers who
do not belong to either class and are considered for vacancies in the general
category. The definition of "crucial date" in clause (a) of
Regulation 2 of the Regulations of 1979 as a point of reference qualifying the
eligibility standard, it is urged, permits an even lower eligibility standard
for Scheduled Caste and Scheduled Tribe candidates. It is now well accepted,
and has been affirmed by successive decisions of this Court, that relaxed
eligibility criteria would be justified in the case of candidates of backward
classes. The principle finds expression also in the original rule 12 of the
Central Secretariat Service Rules. The record before us 1193 indicates that the
lower eligibility standard was decided on after consultation with the Chairman
of the Union Public Service Commission. As regards the number of years of
approved service considered sufficient for eligibility, we find that even if we
consider ourselves entitled to go into that question the paucity of relevant
material does not permit us to express any opinion in the matter.
Learned counsel for the petitioners has also
challenged the reservation of the twenty-seven vacancies on the ground that the
vacancies pertain to selection posts. On this point, we find ourselves bound by
the decision of this Court in General Manager, Southern Railway v.
Rangachari(1) where it has been held that Article 16(4) of the Constitution
extends to selection posts. C Finally, learned counsel for the petitioners
challenges the reservation of vacancies on the ground that they are irrational,
inhibiting and do not provide for healthy growth of the services besides
offending the equality provisions of Part III of the Constitution. Having regard
to the percentage of vacancies reserved under the office memorandum dated 20th July, 1974, we consider that the case falls within the. principles laid down in M. R.
Balaji v. State of Mysore.(2) The majority view in State of Kerala v. N. M. Thomas(3)
supports the validity of the reservation.
Accordingly, the writ petitions are
dismissed, but without any order as to costs.
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