Comptroller and Auditor General of India, Gian Prakash, New Vs. K.S. Jagannathan ANR [1986] INSC 53 (1 April
1986)
MADON, D.P. MADON, D.P. PATHAK, R.S. SEN,
A.P. (J)
CITATION: 1987 AIR 537 1986 SCR (2) 17 1986
SCC (2) 679 1986 SCALE (1)1077
CITATOR INFO:
RF 1992 SC 1 (91)
ACT:
Constitution of India:
Article 226 - Powers of Court - Writ of
Mandamus - Issuance of - To direct Government/public authority to exercise its
discretion in a particular manner.
Articles 16(4), 46 and 335 - Qualifying examinations
for promotion - Relaxation of standards in the case of Scheduled Caste/Tribe
candidates - Validity/permissibility of - Whether to be consistent with
efficiency of service.
The Comptroller and Auditor General's Manual
of Standing Orders (Administrative), Volume I, Chapter V, paras 195, 197, 198,
199 & 207 - Subordinate Accounts Service Examinations (Ordinary) -
Relaxation of standard for Scheduled Caste/Tribe candidates - Whether violates
Ministry of Home Affairs Office Memorandum dated January 21, 1977 - Relaxation
- Determination of in advance - Notification before the examination Necessity
of.
Statutory interpretation - Welfare
Legislation - Necessity for being construed in the light of constitutional
provisions guaranteeing protection.
Practice and Procedure - Passing of orders
and giving directions to compel performance in a proper and lawful manner of
discretion conferred upon Government/public authority - Competency of High
Court.
Civil Services - Members of Scheduled
Castes/Tribes - Relaxation of standards in qualifying examinations for
promotion - Determination in advance - Notification before examination -
Necessity for. 18
HEADNOTE:
Office Memorandum No. 36021/10/76-Estt.(SCT)
dated January 21, 1977 issued by the Department of Personnel and Administrative
Reforms to all Ministeries and Departments, required that if a sufficient
number of Scheduled Caste and Scheduled Tribe candidates were not available in
the qualifying examinations on the basis of the general standard, to fill all the
vacancies reserved for them in the promotional posts suitable relaxation in the
qualifying standard be made in their case, bearing in mind (1) the number of
vacancies reserved, (2) the performance of the Scheduled Caste and Scheduled
Tribe candidates as well as the general candidates in that examination, (3) the
minimum standard of fitness for appointment to the post, and also (4) the
overall strength of the cadre and that of the Scheduled Castes and Scheduled
Tribes in that cadre, the extent of relaxation to be determined on each
occasion having regard to the relevant factors.
The respondents, who belong to the Scheduled
Castes, were working as Selection Grade Auditors in the Department of Indian
Audit and Accounts, appeared for Part II Subordinate Accounts Service (S.A.S.)
Examination (Ordinary) in December, 1980 for the next promotional post of
Section Officer. The total aggregate of all the papers was 500 marks.
Candidates were required to obtain the minimum of 40 per cent marks in the
individual subject and 45 per cent in the aggregate. The first respondent
secured 213 marks (42.6%) and the second 204 marks (40.8%), but failed to reach
the aggregate requirement of 225 marks. The Department gave a general
relaxation of 5 grace marks in the aggregate, inclusive of 5 marks in one or
more subjects, to all the candidates. As against that the Scheduled Caste and
Scheduled Tribe candidates were given 8 grace marks in the aggregate inclusive
of 5 grace marks in one or more subjects, which could be of no avail to the
respondents.
The respondents filed a petition under Art.
226 for a direction to the appellants to make suitable relaxation in the
qualifying standard of marks for Part II of the S.A.S.
Examination held in December 1980 in terms of
the aforesaid Office Memorandum and to declare them as having passed the said
examination.
19 That writ petition was dismissed but the
writ appeal was allowed by a Division Bench holding that the authorities
concerned had not applied their mind to the actual state of affairs that
existed, in fixing the relaxation which negatived the benefit that lawfully
would have gone to the Scheduled Caste and Scheduled Tribe candidates, and
directed the appellants to grant suitable relaxation to the respondents as
envisaged in the Office Memorandum dated January 21, 1977 and to consider
whether they had qualified in Part II of the said examination.
In this appeal by special leave it was
contended for the appellants that a Division Bench of a High Court could not
issue a writ of mandamus to direct a public authority to exercise its
discretion in a particular manner, that fixing a relaxed or lower standard in
advance for a qualifying examination was not permissible in law, that the
authorities could not give relaxation to Scheduled Caste and Scheduled Tribe
candidates in such manner as to impair the efficiency of the service, and that
the relaxation could be made provided the candidates belonging to Scheduled
Castes and Scheduled Tribes were found fit for promotion.
Dismissing the appeal, the Court, ^
HELD : 1. The High Courts exercising
jurisdiction under Article 226 of the Constitution have the power to issue a
writ of mandamus or a writ in the nature of mandamus or to pass orders and give
necessary directions where the government or a public authority has failed to
exercise or has wrongly exercised the discretion conferred upon it by a statute
or a rule or a policy decision of the government or has exercised such
discretion mala fide or on irrelevant considerations or by ignoring the relevant
considerations and materials or in such a manner as to frustrate the object of
conferring discretion or the policy for implementing which such discretion has
been conferred. In all such cases and any other fit and proper case the High
Court can compel the performance in a proper and lawful manner of the
discretion so conferred and in a proper case in order to prevent injustice
resulting to the concerned parties, the Court may itself pass an order or give
directions, which the government or the public 20 authority should have passed
or given had it properly and lawfully exercised its discretion. [39 A-D] In the
instant case, what the Division Bench did was to issue directions to appellants
in the exercise of its jurisdiction under Art. 226 of the Constitution. [36H;
37A] Dwarkanath, Hindu Undivided Family v. Income Tax Officer, Special Circle,
Kanpur & Anr., [1965] 3 S.C.R. 536, 540; Hochtief Gammon v. State of Orissa
& Ors., [1976] 1 S.C.R. 667, 676; Mayor of Rochester v. Regina, [1858] E.B.
& E. 1024, 1032, 1034; The King v. The Revising Barrister for the Borough
of Hanley, [1912] 3 K.B. 518, 528-9, 531;
Padfield and Ors. v. Minister of Agriculture,
Fisheries and Food & Ors., [1968] A.C. 997 and Halsbury's Law's of England,
4th Edition (Vol. I, Para 89) referred to.
2. By reason of the provisions of Art. 16(4)
of the Constitution a treatment to the members of the Scheduled Castes and
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 Art. 16(1). The reservation in favour of backward classes of
citizens, including the members of the Scheduled Castes and Scheduled Tribes,
as contemplated by Art. 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.
[40 C-E] State of Punjab v. Hiralal & Ors., [1971] 3 S.C.R. 267;
and Akhil Bharatiya Soshit Karamchari Sangh
(Railway) v.
Union of India & Ors., [1981] 1 S.C.C.
246 referred to.
3.1 The 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.
The discretion conferred by it is to be exercised in the discharge of
constitutional duty imposed by Art. 335 in keeping with the Directive
Principles laid down in Art. 46, for its object is to provide an adequate
opportunity of promotion to the members of the Scheduled Castes and Scheduled
Tribes. [55 D; 39 E; G; 40 B] State of Kerala & Anr. v. N.M. Thomas &
Ors., [1976] 1 S.C.R. 906 referred to.
21
3.2 The Office Memorandum neither provides a
general relaxation for all examinations nor is the relaxation to be made under
it unguided or not based on any principle. On the contrary, it expressly
provides that the extent of relaxation should be decided on each occasion
whenever such examination is held by taking into account all relevant factors,
including those specifically set out therein. [45 D-E]
3.3 It postulates two qualifying standards,
one a general qualifying standard for all candidates appearing in the
departmental competitive examinations for promotion and in departmental confirmation
examinations, and the other a relaxed or lower qualifying standard for the
candidates belonging to the Scheduled Castes and Scheduled Tribes in respect of
each examination, so that if a sufficient number of candidates belonging to
these Castes and Tribes do not qualify according to the general standard, they
can be considered for promotion in the light of the relaxed or lower qualifying
standard, where there are a number of vacancies in the posts falling in the
reserved quota and not enough candidates belonging to these Castes and Tribes
to fill such vacanices according to the general qualifying standard. When these
two qualifying standards are fixed the difference between the general
qualifying standard and the relaxed or lower qualifying standard will form the
zone of consideration when the result of each examination is ascertained
according to the general qualifying standard.
The relaxed or lower qualifying standard is
the minimum upto which the discretion under the said office memorandum could be
exercised. The fixation of the relaxed or lower qualifying standard, however,
could not be construed to mean that all those who qualify according to that
standard are to be promoted. How many are to be promoted must depend upon the
number of vacancies which remain unfilled on the basis of the general
qualifying standard. [41 D-E; 42 B-D; G; 43 D-E]
4. The candidates who appear for departmental
competitive examinations for promotion and departmental confirmation
examinations know in advance the general qualifying standard because such
standard is prescribed. It is but in consonance with reason and logic that the
relaxed or lower qualifying standard should also be fixed in advance and made
known so that the candidates belonging to the Scheduled 22 Castes and Scheduled
Tribes will know before they appear for the examination to what extent they can
expect relaxation for themselves on the basis of the criteria set out in the
office memorandum. [42 H; 43 A, 44 C, 43 B; 44 C]
5. It is not open to the appellants in the
instant case to assail the eligibility of the respondents for promotion in view
of the requisite certificate under para 207 of the Comptroller and Auditor
General's Manual of Standing Orders (Administrative), Volume I, Chapter V,
having been given to them by the concerned Accountant General/Head of Office
with due responsibility and not as a matter of form, that they were regular in
attendance, energetic, of good moral character and business like habits and not
likely to be disqualified for appointment to the Subordinate Accounts Service
as not possessing the aptitude for the work of a holder of a post in that
service, and that they had a reasonable prospect of passing the examination.
Unless some event had occurred between the date of the giving of the
certificate and final declaration of results, which could disqualify a
candidate from discharging the duties of a post in the S.A.S., he is to be
considered fit for promotion subject only to the condition that he passes the
examination. [55F, 33G-H; 34A, 55B-C]
6.1 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 Scheduled
Tribes to be taken into consideration in the making of appointments to 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. [54 E-F]
6.2 The question of impairment of efficiency
of the Subordinate Accounts Service in the instant case, however, does not
arise. The respondents were selected as candidates for the said examination by
the Accountant General/Head of Office under para 199 of the Manual, the
essential condition of such selection being that the candidates so selected
would, if qualified by examination, be likely to be efficient in all the duties
of the S.A.S. It is, therefore, not open to the appellants to take a contrary
stand. [54 F;
55 A; F-G] 23 7. The entire procedure
followed in the case of S.A.S.
Examination held in December 1980 by the
Department of Comptroller and Auditor-General of India in respect of the
Scheduled Caste and Scheduled Tribe candidates was completely contrary to what
was required to be done under the office memorandum dated January 21, 1977. No
relaxed or lower standard for the candidates belonging to these Castes and
Tribes was fixed in advance of the examination. The relaxation by way of grace
marks given after the results were ascertained on the basis of the general
qualifying standard was without proper application of mind and without taking
the relevant factors into consideration. In the proposals submitted for
moderation of results and award of grace marks no attempt had been made to
focus the attention of the Comptroller and Auditor-General on the actual state
of affairs that existed, the total number of vacancies reserved and the overall
strength of the Scheduled Castes and Scheduled Tribes in that cadre. It was,
therefore, violative of Art. 335 of the Constitution and accordingly bad in
law. [55 G - 56 B]
8. Where two alternative interpretations of a
statute are possible and the department prefers one of them, its action cannot
be said to be unreasonable. However, what has happened in the instant case is
that while two Departments of the Government have taken one view the Department
of the Comptroller and Auditor-General has taken a contrary view, which is
neither warranted nor tenable. The interpretation to be placed upon the said
Office Memorandum must be in keeping with Arts. 16(4), 46 and 335 of the
Constitution. [48 C-D] V.V. Iyer v. Jasjit Singh, AIR 1973 S.C. 194
distinguished.
In order to do complete justice to all
concerned, as required by Art. 142 of the Constitution, it was directed that
there shall be a relaxation of 25 marks in all for candidates belonging to the
Scheduled Castes and Scheduled Tribes for Part II of the Subordinate Accounts
Service Examinations (Ordinary) held in December 1980 and subsequent thereto by
the Office of Comptroller and Auditor-General of India. The respondents and all
other candidates similarly situated, who would pass the said examinations as a
result of the aforesaid relaxation, shall be declared to have passed such
examinations 24 and to have been promoted to the Subordinate Accounts Service
of the said Department in the vacancies reserved for the members of the
Scheduled Castes and Scheduled Tribes with effect from the date when the final
declaration of the results of each such examination was made. They will not,
however, rank in seniority above those who have already passed and have been
promoted, but will be placed in the seniority list after all those who have
passed in Part II of the S.A.S. Examinations (Ordinary) held so far, ranking
inter se according to the rules relating to seniority.
Relaxed or lower standard for future
examinations shall be fixed in advance and notified to the candidates. [57 A;
C-H; 58 A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
2952 of 1984.
From the Judgment and Order dated 12.1.1984
of the Madras High Court in W.A. No. 409 of 1982.
M.S. Gujral, R.N. Poddar, Dalveer Bhandari
and P.P Singh for the Appellants.
Respondent-in-person, V.A. Bobde (Amicus
Curiae) for the Respondents.
The Judgment of the Court was delivered by
MADON, J. : This Appeal filed by Special Leave granted by this Court under
Article 136 of the Constitution is directed against the judgment of a Division
Bench of the Madras High Court in Writ Appeal No. 409 of 1982 and raises a
question of importance to the members of the Scheduled Castes and the Scheduled
Tribes working in the Department of Indian Audit and Accounts who seek
promotion to the Subordinate Accounts Service.
The Respondents belong to the Scheduled
Castes and are working as Selection Grade Auditors in the Department of Indian
Audit and Accounts at Madras. The next promotional post for them is that of
Section Officer in the same Department and in order to obtain such promotion,
Selection Grade Auditors are required to pass the Subordinate Accounts Service
25 Examination (hereinafter referred to as "the SAS Examination").
The SAS Examination consists of two parts, namely, Part I and Part II. Both the
Respondents have passed the Part I Examination held in December 1979. They
appeared for the Part II Examination in December 1980. Both of them secured the
minimum number of marks in each individual subject which was 40 per cent and in
some papers more than the minimum number of marks but failed to secure the
aggregate minimum which was 45 percent. The First Respondent secured 42.4 per
cent and the Second Respondent 40.8 per cent.
The Respondents thereupon filed a petition
under Article 226 of the Constitution, being Writ Petition No. 10706 of 1981,
in the Madras High Court praying for a writ of mandamus directing the
Comptroller and Auditor-General of India and the Accountant General-I, Madras -
the Appellants before us - to make in accordance with the instructions
contained in the Office Memorandum No. 36021/10/76-Estt. (SCT) dated January
21, 1977, issued by the Department of Personnel & Administrative Reforms to
all Ministries etc.
suitable relaxation for the Respondents in
the qualifying standard of marks for Part II of the SAS Examination held in
December 1980 and to declare them as having passed the said examination. The
said writ petition was dismissed with no order as to costs by a learned Single
Judge of the High Court. The Respondents thereupon filed the aforesaid Writ
Appeal No. 409 of 1982 which was allowed by a Division Bench of the High Court
directing the Appellants to give suitable relaxation to the Respondents within
two months from the date of its judgment and to consider whether the
Respondents had qualified themselves in Part II of the SAS Examination held in
December 1980 and further directing the Appellants, while granting such
relaxation, to bear in mind the observations made by it in its judgment as also
the criteria envisaged in the said Office Memorandum dated January 21, 1977.
The Division Bench made no order with respect to the costs of the Appeal.
The Respondents were represented by advocates
at the hearing of the writ petition but they appeared before the Division Bench
in person. They are also not represented at the hearing of this Appeal but with
a view to ensure that no injustice may result to the Respondents by reason of
their not having legal assistance, we requested Mr. V.A. Bobde, 26 Advocate, to
appear as amicus curiae, and the Court is greatly beholden to Mr. Bobde for the
assistance which he has rendered to the Court and the labour and industry which
he has put in order to enable him to do so.
Before examining the judgment under appeal
and the correctness of the submissions advanced at the Bar, it is necessary to
refer to certain provisions of the Constitution, the relevant Office Memoranda
and the Standing Orders bearing upon the subject.
The Constitution of India has made certain
provisions with a view to undo the wrong and to right the injustice done to the
members of the Scheduled Castes and the Scheduled Tribes for centuries. Article
335 of the Constitution provides that the claims of the members of the
Scheduled Castes and the Scheduled Tribes should 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. Article 46, which occurs in Part IV containing the
Directive Principles of State Policy, provides that the State shall 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 shall protect them from social injustice and all forms of
exploitation. Article 16 which embodies the Fundamental Right of all citizens
to equality of opportunity in matters relating to employment or appointment to
any office under the State, makes an exception in clause (4). Clause (4) is as
follows :
"(4) Nothing in this article shall
prevent the State from making any provision for the reservation of appointments
or posts in favour of any backward class of citizens which, in the opinion of
the State, is not adequately represented in the services under the State."
The said Office Memorandum dated January 21, 1977, referred to above, provides
as follows :
"Subject :- Relaxation of standards in
the case of Scheduled Caste/Tribe candidates in qualifying 27 examinations for
promotion to the higher grade on the basis of seniority subject to fitness.
The undersigned is directed to refer to this
Department's Office Memorandum No. 8/12/69-Estt.(SCT), dated 23rd December,
1970 in which it has been provided that in promotions made through departmental
competitive examinations and in departmental confirmation examinations, if
sufficient number of Scheduled Caste/Scheduled Tribe candidates are not
available on the basis of the general standard to fill the vacancies reserved
for them, candidates belonging to these communities who have not acquired the
general qualifying standard should also be considered for
promotion/confirmation provided they are not found unfit for such
promotion/confirmation. A question has been raised whether relaxation in
qualifying standards should be granted to Scheduled Castes and Scheduled Tribes
candidates, on the same basis, in promotions on the basis of seniority subject
to fitness, where fitness is decided on the basis of qualifying examination. The
matter has been carefully considered and it has now been decided that in
promotions made on the basis of seniority subject to fitness in which there is
reservation for Scheduled Castes and Scheduled Tribes in accordance with this
Department's Office Memorandum No. 27/2/71-Estt. (SCT), dated the 27th
November, 1972, and where a qualifying examination is held to determine the
fitness of candidates for such promotion, suitable relaxation in the qualifying
standard in such examinations should be made in the case of Scheduled
Caste/Scheduled Tribe candidates. The extent of relaxation should, however, be
decided on each occasion whenever such an 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 also (iv) the overall strength of the cadre
and that of the Scheduled Castes and Scheduled Tribes in that cadre." The
Office Memorandum dated December 23, 1970, referred to in the said Office
Memorandum dated January 21, 1977, provides as follows :
28 "Subject :- Relaxation of standards
in favour of Scheduled Castes/Scheduled Tribes candidates in departmental
competitive examinations for promotion and in departmental confirmation
examinations.
Attention of the Ministry of Finance etc. is
invited to Ministry of Home Affairs O.M.No. 1/1/70-Est.(SCT) dated the 25th
July, 1970, in which it has been provided that in the case of direct
recruitment, whether by examination or otherwise, if sufficient number of
Scheduled Castes/Scheduled Tribes candidates are not available on the basis of
the general standard to fill all the vacancies reserved for them, candidates
belonging to these communities may be selected to fill up the remaining
vacancies reserved for them provided they are not found unfit for appointment
to such post or posts. A question has been raised whether relaxations in the qualifying
standards could be granted to Scheduled Castes/Scheduled Tribes candidates on
the same basis in promotion made through departmental competitive examinations
and in departmental confirmation examinations where such examinations are
prescribed to determine the suitability of candidates for confirmation. The
matter has been carefully considered and it has been decided that in
promotions/ confirmations made through such examinations, Scheduled
Castes/Scheduled Tribes candidates who have not acquired the general qualifying
standard in such examinations could also be considered for
promotions/confirmations provided they are not found unfit for such
promotions/confirmations. In other words, the qualifying standards in these
examinations could be relaxed in favour of Scheduled Castes/Scheduled Tribes
candidates in keeping with the above criterion." The Office Memorandum
dated November 27, 1972, referred to in the said Office Memorandum dated
January 21, 1977, inter alia provides as follows :
"Subject :- Reservations for Scheduled
Castes and Scheduled Tribes in posts filled by promotion Promotions on the
basis of seniority subject to fitness.
The undersigned is directed to refer to para
2-C of the Ministry of Home Affairs O.M. No. 1/12/67-Ests.(C) dated the 29 11th
July 1968 according to which there is no reservation for Scheduled Castes and
Scheduled Tribes in appointments made by promotion on the basis of seniority
subject to fitness, although cases involving supersession of Scheduled Castes
and Scheduled Tribes officers in Class I and Class II appointments are required
to be submitted for prior approval to the Minister or Deputy Minister concerned
and cases of supersession in Class III and Class IV appointments have to be
reported within a month to the Minister or Deputy Minister concerned for
information.
2. The policy in regard to reservations for
Scheduled Castes and Scheduled Tribes officers in posts filled by promotion on
the basis of seniority subject to fitness has now been reviewed and it has been
decided, in supersession of the orders contained in the aforesaid para 2-C of
the O.M. dated 11th July, 1968, that there will be reservation at 15% for
Scheduled Castes and 7-1/2% for Scheduled Tribes in promotions made on the
basis of seniority subject to fitness, in appointments to all Class I, Class
II, Class III and Class IV posts in grades or services in which the element of
direct recruitment, if any, does not exceed 50 per cent." In this
connection it will be useful also to refer to Ministry of Home Affairs Office
Memorandum No.16/17/67-Estt.
(C) dated February 8, 1968. The said Office
Memorandum deals with reservations for the members of the Scheduled Castes and
the Scheduled Tribes in services and with the minimum standards in examinations
for recruitment. The relevant paragraph of the said Office Memorandum is as
follows :
"4. In the case of direct recruitment
through a qualifying examination a minimum standard is generally fixed and
candidates attaining that standard are placed on the select list for
appointment against vacancies occurring from time to time. In such cases,
therefore, a lower minimum qualifying standard should be fixed for candidates
belonging to Scheduled Castes and Scheduled Tribes, taking into account the
minimum standard necessary for maintenance of efficiency of administration. If
30 the minimum qualifying standard for general candidates is reviewed at a
later date, the lower minimum qualifying standard applicable to Scheduled
Castes and Scheduled Tribes should be reviewed." Under Article 148 (5) of
the Constitution, subject to the provisions of the Constitution and of any law
made by Parliament, the conditions of service of persons serving in the Indian
Audit and Accounts Department and the administrative powers of the Comptroller
and Auditor-General are to be such as may be prescribed by rules made by the
President after consultation with the Comptroller and Auditor General. The
Comptroller and Auditor-General's Manual of Standing Orders (Administrative),
Volume I, contains the provisions applying to the organization and control of
the Indian Audit and Accounts Department, the Indian Audit and Accounts
Service, the Subordinate Accounts Service, clerical staff of the Department,
Divisional Accountants and other cognate matters. Chapter VII of the said
Manual deals with Divisional Accountants. Under paragraph 314, Divisional
Accountants constitute a separate cadre. Paragraph 318 makes it a specific
condition of the appointment of a Divisional Accountant that he is liable for
service anywhere within the jurisdiction of the Accountant General concerned
including his own office. Under paragraph 335, the cadre of Divisional
Accountants in each office has a selection grade with effect from January 1,
1961.
Divisional Accountants promoted to the
selection grade are normally to be entrusted with charges which are heavier,
more important and responsible than those entrusted to other Divisional
Accountants. The Respondents belong to this grade. Under paragraph 336 members
of the Divisional Accountants' cadre are eligible for promotion to the
Subordinate Accounts Service (hereinafter referred to as "the SAS")
subject to the conditions governing appointments in that service set out in
Chapter V of the said Manual and necessary facilities are to be afforded to
them by utilizing the provisions of paragraph 318 and posting from time to time
a selected number of Divisional Accountants to work in the Audit Office.
Chapter V of the said Manual deals with the
SAS.
Paragraph 176 provides that the SAS is a
Central Subordinate Service under the rule-making control of the President
acting 31 in consultation with the Comptroller and Auditor-General constituted
for the subordinate supervision of the working of the Indian Audit and Accounts
Department. It is divided into several branches. Under paragraph 178,
appointments to the SAS are to be made by the Accountants General, etc., partly
by confirmation of eligible apprentices and SAS Accountants on probation but
mainly by promotion of the eligible clerks in the offices and the Divisional
Accountants under their control subject always to the condition that the
eligible persons are also qualified in the opinion of the appointing authority
by ability, character and experience to discharge adequately and efficiently
the duties required of the incumbent of a post in the SAS. Under paragraph 180,
no person who has not passed the departmental examination prescribed in Section
II of Chapter V is to be eligible for appointment to the SAS.
Paragraph 184 deals with seniority in the SAS
cadre. Under it, subject to the conditions prescribed in paragraphs 178 and
180, a clerk or a Divisional Accountant who passes the SAS Examination in an
earlier examination will have precedence in appointment to the SAS over a
person who passes in a later examination. As amongst persons who passes in the
same examination, the one senior in the clerical cadre will have a prior claim
for such appointment. Further, when the date of completely passing the SAS
Examination is the same, the seniority is to be determined according to the
year of recruitment. Paragraph 187 provides that appointment to the SAS is
departmental promotion for purposes of the orders governing reservation of
vacancies in favour of the members of the Scheduled Castes and the Scheduled
Tribes, but in so far as appointment is also made from eligible SAS Apprentices
and SAS Accountants on probation, the appointing authority is to pay due regard
to the proper and adequate representation of these communities in the SAS.
Under paragraph 210, no candidate is to be allowed to take the SAS Examination
of any branch other than that of the branch which is appropriate to the
establishment in which he is serving. The said paragraph further sets out the
examinations which are regarded as appropriate to the members of the
establishment working in different branches.
The appropriate examination for those working
in Civil and Audit Accounts Offices is SAS (Ordinary) Examination.
As the Respondents were working as Auditors
in the office of the Accountant-General, Madras, the appropriate examination
for them was the SAS Examination (Ordinary).
32 Paragraph 195 provides that the
departmental examination qualifying for appointment to the SAS is divided into
two parts and an examination in both the parts will be normally held once a
year for all Audit and Accounts Offices in all branches on notified dates. The
relevant provisions of paragraphs 197 and 198 are as follows :
"197. Subject to the various
instructions issued by the Comptroller and Auditor General from time to time,
and also subject to his final approval, the Accountants General/Heads of
Offices may permit the candidates in their offices to appear in the appropriate
branch of the S.A.S.
Examination provided they are otherwise
eligible to take the Examination. The names and other particulars of the
candidates permitted to take the Examination should be sent to the Comptroller
and Auditor General by the 15th August each year in Form No. 8 which should not
be larger than double foolscap size. The Accountants General and other Heads of
the Offices should see that the particulars noted therein are correct
especially in regard to the number of chances a candidate has already availed
of, the age and the exemption marks obtained by the candidates. To ensure
correctness, the Heads of Offices should get the particulars in the statement
checked by an Accountant and an Officer other than those who are responsible
for its preparation....." "198. The selection of candidates for the
S.A.S.
Examination is primarily the responsibility
of the Head of the Office who may be aided by an Advisory Committee in the
discharge of this responsibility.
The composition and strength of the Committee
will be determined by the Head of the Office and the Committee itself will be
an advisory body only, the final selection resting with the Head of Office
himself. The preliminary selection should be made as early as possible after
the results of the last S.A.S. Examination are circulated so that intending
candidates may start their preparation with the practical certainty that they
will be permitted to take up the Examination...." 33 Paragraph 199
provides as follows:
"199. The essential condition which
shall govern the selection by the Accountant General or other Heads of Offices
is that the candidate selected shall, if qualified by examination, be likely to
be efficient in all the duties of the Subordinate Accounts Service."
Paragraph 207 provides as follows:
"207. Candidates satisfying the
conditions set out in paragraphs 199 to 201 are eligible, but have no claim to
appear for the examination. The Heads of Offices should certify at the foot of
the statement required in paragraph 197 with due responsibility and not as a
matter of form, that the candidates recommended are regular in attendance,
energetic, of good moral character and business-like habits, are not likely to
be disqualified for appointment to the Subordinate Accounts Service as not
possessing the aptitude for the work of a holder of a post in the Subordinate Accounts
Service and that they have a reasonable prospect of passing the
examination." Under paragraph 201, a candidate who has not passed Part I
of the SAS Examination, is not to be allowed to take Part II of the SAS
Examination. The Respondents were permitted to appear for Part I of the SAS
Examination and had passed in that part. They were also permitted to appear for
Part II of the SAS Examination. Taking this fact into account in conjunction
with the provisions of paragraphs 197,198,199 and 207, it is clear that the
Respondents were in the opinion of the concerned Accountant General or Head of
Office qualified by ability, character and experience to discharge adequately
and efficiently the duties required of the incumbent of a post in the SAS as
required by paragraph 178 and that if qualified by examination, they were
likely to be efficient in all the duties of the SAS as prescribed by paragraph
199. Obviously, they had been given a certificate under paragraph 207, given
with due responsibility and not as a matter of form, by the Head of Office
certifying that the Respondents were regular in 34 attendance, energetic, of
good moral character and business- like habits and 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 had a reasonable prospect of passing
the SAS Examination.
Under paragraph 234, the number of marks
required to secure a pass in each branch is 40 per cent in each subject and 45
per cent in the aggregate.
Sub-paragraphs (a)(i),(ii),(iv) and (vi) of
paragraph 282 provide as follows :
"282. (a)(i) There will be reservation
at 12-1/2% and 5% of the vacancies for Scheduled Castes and Scheduled Tribes
respectively in promotions made (i) by selection (ii) on the results of
competitive examination limited to departmental candidates, in or to class III
and IV posts, grades or services in which the element of direct recruitment, if
any, does not exceed 50%.
(ii) Lists of Scheduled Castes and Scheduled
Tribes Officers should be drawn up separately to fill the reserved vacancies.
Officers belonging to these classes should be adjudged separately and not along
with other officers and if they are suitable for promotion, they should be
included in the list irrespective of their merit as compared to others.
Promotions against reserved vacancies shall, however, be subject to the
candidates satisfying the prescribed minimum standards.
x x x x x x x x x x (iv) If candidates from
Scheduled Castes and Scheduled Tribes obtain, on the basis of their positions
in the aforesaid general select list, less vacancies than are reserved for
them, the difference should be made up by such of those selected candidates who
are in the separate select lists for Scheduled Castes and Scheduled Tribes
respectively.
35 x x x x x x x x x x (vi) If owing to
non-availability of suitable candidates belonging to Scheduled Castes/Scheduled
Tribes, it becomes necessary to dereserve a reserved vacancy, the proposals for
de-reservation should be sent to the Ministry of Home Affairs through the
Comptroller & Auditor General, indicating whether claims of Scheduled
Castes and Scheduled Tribes candidates eligible for promotion in reserved
vacancies have been considered in the manner prescribed in the preceding
sub-paragraphs.
When de-reservations are agreed to by the
Ministry the reserved vacancies can be filed by other candidates subject to the
reservation being carried forward to two subsequent years." x x x x x x x
x x x The reservation of 12-1/2 per cent and 5 per cent mentioned in paragraph
282(a)(i) has been subsequently increased to 15 per cent and 7-1/2 per cent.
The learned Single Judge held that the
Respondents had not challenged the validity of the instructions contained in
the said Office Memorandum dated January 21, 1977, and, therefore, the only
question which fell for consideration was whether those instructions had been
carried out. He held that the extent of relaxation in the case of the Scheduled
Castes and the Scheduled Tribes candidates would have to be decided every time
an examination was held. He referred to an unreported decision of the Orissa
High Court in Subodh Chandra Das and another v. Comptroller and Auditor General
of India and others, O.J.C. 735 of 1970 decided by R.N.
Misra and K.B. Panda, JJ., on September 12,
1973 in which a general relaxation to the extent of three per cent in the
aggregate and two per cent in two papers given to the Scheduled Castes and the
Scheduled Tribes candidates with effect from the examination held in November
1961 was struck down and to the fact that the Petition for Special Leave to
Appeal against the said judgment was dismissed by this Court. The learned
Single Judge accepted the statement made in the counter affidavit filed on
behalf of the Appellants that necessary and suitable 36 relaxation had been
made in favour of the Respondents after taking into account the various factors
contained in the said Office Memorandum dated January 21, 1977. He accordingly
dismissed the writ petition filed by the Respondents.
At the hearing of the writ appeal before the
Division Bench the Appellants before us produced the file containing the
proposals for moderation of results and award of grace marks for the SAS
Examination and Revenue Audit Examination for Section Officers held in December
1980, made by the Joint Director (Exam.), Office of the Comptroller and
Auditor-General of India, the notings made thereon by other concerned
authorities and the final order passed thereon by the Comptroller and
Auditor-General of India, the First Appellant before us. After looking into the
said file and analysing the figures to be found therein, the Division Bench
came to the conclusion that the authorities concerned had not applied their
mind to the actual state of affairs which existed and that this had resulted in
an arbitrary fixing of the relaxation which negatived the benefit that lawfully
would have come to the Scheduled Castes and Scheduled Tribes candidates and
that, therefore, the fixing of the relaxation was arbitrary and made in a
perverse fashion. The Division Bench further held that it could not
straightaway delcare the Respondents as having passed Part II of the SAS
Examination held in December 1980 as it was for the concerned authorities to
apply their mind, bearing in mind the criteria which the Division Bench had
mentioned, and to consider the case of the Respondents by granting relaxation.
The Division Bench accordingly allowed the appeal and passed the order under
appeal before us. It is against this judgment and order of the Division Bench
that the Appellants have approached this Court in appeal.
The first contention urged by learned Counsel
for the Appellants was that the Division Bench of the High Court could not
issue a writ of mandamus to direct a public authority to exercise its
discretion in a particular manner.
There is a basic fallacy underlying this
submission both with respect to the order of the Division Bench and the purpose
and scope of the writ of mandamus. The High Court had not issued a writ of mandamus.
A writ of mandamus. was the relief prayed for by the Respondents in their writ
petition. What the Division Bench 37 did was to issue directions to the
Appellants in the exercise of its jurisdiction under Article 226 of the
Constitution. Under Article 226 of the Constitution, every High Court has the
power to issue to any person or authority, including in appropriate cases, any
Government, throughout the territories in relation to which it exercises
jurisdiction, directions, orders, or writs including writs in the nature of
habeas corpus, mandamus, quo warranto and certiorari, or any of them, for the
enforcement of the Fundamental Rights conferred by Part III of the Constitution
or for any other purpose. In Dwarkanath, Hindu Undivided Family v. Income-Tax
Officer, Special Circle, Kanpur, and another, [1965] 3 S.C.R. 536, 540 this
Court pointed out that Article 226 is designedly couched in a wide language in
order not to confine the power conferred by it only to the power to issue
prerogative writs as understood in England, such wide language being used to
enable the High Courts "to reach injustice wherever it is found" and
"to mould the reliefs to meet the peculiar and complicated requirements of
this country." In Hochtief Gammon v. State of Orissa & Ors., [1976] 1
S.C.R. 667, 676 this Court held that the powers of the courts in England as
regards the control which the Judiciary has over the Executive indicate the
minimum limit to which the courts in this country would be prepared to go in
considering the validity of orders passed by the Government or its officers.
Even had the Division Bench issued a writ of
mandamus giving the directions which it did, if circumstances of the case
justified such directions, the High Court would have been entitled in law to do
so for even the courts in England could have issued a writ of mandamus giving
such directions.
Almost a hundred and thirty years ago Martin,
B., in Mayor of Rochester v. Regina, [1858] E.B. & E. 1024,1032,1034 said :
"But, were there no authority upon the
subject, we should be prepared upon principle to affirm the judgment of the
Court of Queen's Bench. That Court has power, by the prerogative writ of
mandamus, to amend all errors which tend to the oppression of the subject or
other misgovernment, and ought to be used when the law has provided no specific
remedy, and justict and good government require that there ought to be one for
the 38 execution of the common law or the provisions of a statute : Comyn's
Digest, Mandamus (A) . . . . .
.Instead of being astute to discover reasons
for not applying this great constitutional remedy for error and misgovernment,
we think it our duty to be vigilant to apply it in every case to which, by any
reasonable construction, it can be made applicable." The principle
enunciated in the above case was approved and followed in The king v. The
Revising Barrister for the Borough of Hanley, [1912] 3 K.B. 518, 528-9, 531. In
Hochtief Gammon's Case this Court pointed out (at page 675) that the powers of
the Courts in relation to the orders of the Government or an officer of the
Government who has been conferred any power under any statute, which apparently
confer on them absolute discretionary powers, are not confined to cases where
such power is exercised or refused to be exercised on irrelevant considerations
or on erroneous ground or mala fide, and in such a case a party would be
entitled to move the High Court for a writ of mandamus. In Padfield and Others
v. Minister of Agriculture, Fisheries and Food and Others, [1968] A.C. 997 the
House of Lords held that where Parliament had conferred a discretion on the
Minister of Agriculture, Fisheries and Food, to appoint a committee of
investigation so that it could be used to promote the policy and objects of the
Agricultural Marketing Act, 1958, which were to be determined by the
construction of the Act which was a matter of law for the court and though
there might be reasons which would justify the Minister in refusing to refer a
complaint to a committee of investigation, the Minister's discretion was not
unlimited and if it appeared that the effect of his refusal to appoint a
committee of investigation was to frustrate the policy of the Act, the court
was entitled to interfere by an order of mandamus. In Halsbury's Laws of England,
Fourth Edition, Volume I, Paragraph 89, it is stated that the purpose of an
order of mandamus "is to remedy defects of justice; and accordingly it
will issue, to the end that justice may be done, in all cases where there is a
specific legal right and no specific legal remedy for enforcing that right; and
it may issue in cases where, although there is an alternative legal remedy, yet
that mode of redress is less convenient, beneficial and effectual." 39
There is thus no doubt that the High Courts in India exercising their
jurisdiction under Article 226 have the power to issue a writ of mandamus or a
writ in the nature of mandamus or to pass orders and give necessary directions
where the Government or a public authority has failed to exercise or has wrongly
exercised the discretion conferred upon it by a statute or a rule or a policy
decision of the Government or has exercised such discretion mala fide or on
irrelevant considerations or by ignoring the relevant considerations and
materials or in such a manner as to frustrate the object of conferring such
discretion or the policy for implementing which such discretion has been
conferred. In all such cases and in any other fit and proper case a High Court
can, in the exercise of its jurisdiction under Article 226, issue a writ of
mandamus or a writ in the nature of mandamus or pass orders and give directions
to compel the performance in a proper and lawful manner of the discretion
conferred upon the Government or a public authority, and in a proper case, in order
to prevent injustice resulting to the concerned parties, the Court may itself
pass an order or give directions which the Government or the public authority
should have passed or given had it properly and lawfully exercised its
discretion.
It is now necessary to examine the nature of
the discretion conferred by the said Office Memorandum dated January 21, 1977 -
"Whether it is a discretionary power simpliciter or a discretionary power
coupled with a duty?" From the provisions of the Constitution referred to
above, it is transparently clear that it is a discretion to be exercised in the
discharge of the Constitutional duty imposed by Article 335 to take into
consideration the claims of the members of the Scheduled Castes and the
Scheduled Tribes, 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. 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 from social injustice and all forms of
exploitation.
Article 37 of the Constitution provides that
the Directive Principles of State Policy contained in Part IV of the
Constitution, in which Article 46 occurs, are 40 fundamental to the governance
of the country and that it is the duty of the State to apply these principles
in making laws. As said by Murtaza Fazal Ali, J., in State of Kerala & Anr.
v. N.M. Thomas & Ors., [1976] 1 S.C.R. 906 (at page 996) "the
directive principles form the fundamental feature and the social conscience of
the Constitution and the Constitution enjoins upon the State to implement these
directive principles".
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 the
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 :
(see, for instance : State of Punjab v.
Hiralal & Ors., [1971] 3 S.C.R. 267 and Akhil Bharatiya Soshit Karamchari
Sangh (Railway) v. Union of India and Ors., [1981] 1 S.C.C.
246.
The question which now falls to be considered
is the manner in which the Comptroller and Auditor-General of India is required
to exercise the discretion conferred by the said Office Memorandum dated
January 21, 1977, and the manner in which he has, in fact, exercised it. The
said Office Memorandum dated January 21, 1977, refers to two other Office
Memoranda, namely, the Office Memorandum dated December 23, 1970, and the
Office Memorandum dated November 27, 1972. Under the Office Memorandum dated
December 23, 1970, where a 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 them, they may also be considered for
promotion provided they are not found unfit for such promotion, and to achieve
this, the said Office 41 Memorandum directs that the qualifying standard in
such examinations can be relaxed in their favour in keeping with the above
criterion. The Office Memorandum dated November 27, 1972, fixes the reservation
quota for the members of the Scheduled Castes at 15 per cent, and the Scheduled
Tribes at 7-1/2 per cent, in appointments filled by promotion on the basis of
seniority subject to fitness. Under the said Office Memorandum dated January
21, 1977, if a sufficient number of Scheduled Castes and Scheduled Tribes
candidates are not available in the qualifying examinations on the basis of the
general standard to fill all the vacancies reserved for them in the promotional
posts, suitable relaxation in the qualifying standard for such examinations
should be made in the case of the Scheduled Castes and the Scheduled Tribes
candidates bearing in mind all relevant factors including, namely, (1) the
number of vacancies reserved, (2) the performance of the Scheduled Castes and
the Scheduled Tribes candidates as well as the general candidates in that
examination, (3) the minimum standard of fitness for appointment to the post,
and also (iv) the overall strength of the cadre and that of the Scheduled
Castes and the Scheduled Tribes in that cadre. The said Office Memorandum dated
January 21, 1977, thus postulates two qualifying standards - one, a general
qualifying standard and the other, a relaxed or lower qualifying standard for
candidates belonging to the Scheduled Castes and the Scheduled Tribes.
Paragraph 4 of the said Office Memorandum
dated February 8, 1968, reproduced earlier, shows that in the case of direct
recruitment through a qualifying examination a minimum standard is generally to
be fixed and that in such cases, a lower minimum qualifying standard should be
fixed for the candidates belonging to the Scheduled Castes and the Scheduled
Tribes, taking into account the minimum standard necessary for the maintenance
of efficiency of administration, and that if the minimum qualifying standard
for general candidates is reviewed at a later date, the lower minimum
qualifying standard applicable to the Scheduled Castes and Scheduled Tribes
candidates should also be reviewed. The Office Memorandum No. 1/1/70-Estt.(SCT)
dated July 25, 1970 which deals with examination for direct recruitment also speaks
of a general standard and of a lower standard for candidates belonging to the
Scheduled Castes and the Scheduled Tribes, the standard being required to be
relaxed in their 42 case to make up the deficiency in the reservation quota
provided they are not found unfit for such post or posts. As seen above, a
similar provision exists in the said Office Memorandum dated December 23, 1970,
with respect to departmental competitive examinations for promotion and in
departmental confirmation examinations.
What is, therefore, required to be done under
the said Office Memorandum dated January 21, 1977, is to fix a general
qualifying standard for all candidates appearing in departmental competitive
examinations for promotion and in departmental confirmation examinations as
also to fix a relaxed or lower qualifying standard for the candidates belonging
to the Scheduled Castes and the Scheduled Tribes in respect of each
examination, so that if a sufficient number of candidates belonging to the
Scheduled Castes and the Scheduled Tribes do not qualify according to the
general standard, they can be considered for promotion in the light of the
relaxed or lower qualifying standard where there are a number of vacancies in
the posts falling in the reserved quota and not enough candidates belonging to
the Scheduled Castes and the Scheduled Tribes to fill such vacancies according
to the general qualifying standard. In this connection, it should be borne in
mind that the Office Memorandum dated December 23, 1970, referred to in the
said Office Memorandum dated January 21, 1977, states that it was provided by
Office Memorandum No. 1/1/70-Est.(SCT) dated July 25, 1970, that in the case of
direct recruitment, whether by examination or otherwise, "if sufficient
number of Scheduled Castes/Scheduled Tribes candidates are not available on the
basis of the general standard to fill all the vacancies reserved for them,
candidates belonging to these communities may be selected to fill up the
remaining vacancies reserved for them provided they are not found unfit for
appointment to such post or posts", and that it had been decided to make a
similar relaxation in the case of promotion made through departmental
competitive examinations and in departmental confirmation examinations. When these
two qualifying standards are fixed, the difference between the general
qualifying standard and the relaxed or lower qualifying standard will form the
Zone of consideration when the result of each examination is ascertained
according to the general qualifying standard. The candidates who appear for
departmental competitive exami- 43 nations for promotion and departmental
confirmation examinations know in advance the general qualifying standard
because such standard is prescribed. This naturally postulates that the relaxed
or lower qualifying standard should also be fixed in advance and made known so
that the candidates belonging to the Scheduled Castes and the Scheduled Tribes
will know before they appear for the examination to what extent they can expect
relaxation for themselves, provided that the other conditions prescribed by the
said Office Memorandum dated January 21, 1977, are fulfilled. The relaxed or
lower qualifying standard cannot be fixed for all time or for a number of
years. It must of necessity be fixed for each examination because it has to be
fixed taking into account the reserved vacancies remaining unfilled and the
overall strength of the cadre and of the Scheduled Castes and the Scheduled
Tribes in that cadre.
This would naturally vary from year to year
and cannot be fixed in advance but must necessarily be fixed before each
examination and notified so that the candidates appearing in such examination
would know what the lower qualifying standard is. The relaxed or lower
qualifying standard is the minimum up to which the discretion under the said
Office Memorandum dated January 21, 1977, is to be exercised. This should not
be construed to mean that all who qualify according to the relaxed or lower
qualifying standard are to be promoted. How many are to be promoted must depend
upon the number of vacancies which remain unfilled on the basis of the general
qualifying standard. For instance, if the general qualifying standard is 45 per
cent and the relaxed or lower qualifying standard has been fixed at 35 per cent
and if on the basis of the general qualifying standard only ten reserved
vacancies remain unfilled, then ten candidates who obtain less than 45 per cent
but have obtained 35 per cent or more should be selected in order of merit. If,
however, there are fifteen reserved vacancies which remain unfilled according
to the general qualifying standard and only ten candidates belonging to the
Scheduled Castes and the Scheduled Tribes have obtained 35 per cent or more,
the standard cannot be further lowered below 35 per cent to enable the
remaining five candidates also to be selected for promotion. The said Office
Memorandum dated January 21, 1977, also makes it clear that the relaxed or
lower qualifying standard is to be fixed each time an examination is to be
held, by taking into account all relevant factors including those specifically
set out in the said 44 Office Memorandum. This it does by stating that
"The extent of relaxation should be decided on each occasion whenever such
an examination is held".
In the case of the SAS Examinations,
Paragraph 234 of the said Manual fixes the general qualifying standard as 40
per cent for each subject and 45 per cent in the aggregate for each part of
that Examination. Thus, every candidate appearing in either of the two parts of
the SAS Examination knows the minimum percentage of marks he has to obtain in
each subject is also in the aggregate percentage of marks and it is in
consonance with reason and logic that the candidates belonging to the Scheduled
Castes and Scheduled Tribes should also know in advance the maximum relaxation
they can expect to get on the basis of the criteria set out in the said Office
Memorandum dated January 21, 1977.
It was, however, argued on the basis of the
decision of the Orissa High Court referred to above that fixing a relaxed or
lower standard in advance was not permissible in law and that when this was
done for the SAS Examination, the Orissa High Court had struck it down and the
Petition for Special Leave to Appeal against its judgment was dismissed by this
Court. The learned Single Judge of the High Court was impressed by this
argument. A perusal of the said judgment, however, shows that it has no
relevance to the present situation. Before the Orissa High Court, the question
was of an Office Memorandum dated May 7, 1955, on which date there was no
reservation made in the case of posts to be filled by promotion on the basis of
a qualifying examination. The said Office Memorandum dated May 7, 1955,
expressly provided that there would be no reservation for the Scheduled Castes
and the Scheduled Tribes in regard to the vacancies filled by promotion but
where the passing of tests or examinations was laid down as a condition, the
authority prescribing the rules for such tests or examinations may issue
suitable instructions to ensure that the standard of qualification in respect
of the members of the Scheduled Castes and the Scheduled Tribes is not unduly
high. By a confidential Circular dated December 18, 1961, issued by the
Comptroller and Auditor-General of India instructions were given that a
reduction in pass percentage should be made to the extent of 3 per cent in the
aggregate and 2 per cent in any two of the papers in each 45 part of the SAS
Examination in favour of the candidates belonging to the Scheduled Castes and
the Scheduled Tribes.
It was the case of both the parties before
the Orissa High Court that the said Office Memorandum dated May 7, 1955, did
not create a reservation in favour of the members of the Scheduled Castes and
the Scheduled Tribes under Article 16(4). Further, the said confidential
Circular made merely a general relaxation without prescribing any guideline or
criterion for giving the relaxation. The Orissa High Court, therefore, held
that the concession granted by the insructions contained in the said
confidential Circular being unguided did not pass the objective test and was,
therefore, bad in law. The High Court further pointed out that there was even
no material before it to show that the members of the Scheduled Castes and the
Scheduled Tribes were already not in adequate number in employment in the
establishment of the Accountant General. The said Office Memorandum dated
January 21, 1977, stands on a wholly different footing from the Office
Memorandum referred to in the aforesaid judgment of the Orissa High Court. It
neither provides a general relaxation for all examinations nor is the
relaxation to be made under it unguided or not based on any principle. On the
contrary, it expressly provides that the extent of relaxation should "be
decided on each occasion whenever such an examination is held taking into
account all relevant factors including those specifically set out therein.' It
appears that the other Departments of the Union of India have implemented the
Office Memorandum dated January 21, 1977, in keeping with the interpretation
given above.
For instance, the Circular No. 63/1/77-SPB I
dated January 31, 1978, issued by the Office of the Director General of Posts
and Telegraphs, after referring to the said Office Memorandum dated January 21,
1977, states as follows :
"The matter has been examined in detail
and it has been decided that a lower standard for SC and ST candidates in all
the groups, where the promotion is on the basis of seniority-cum-fitness and
there is qualifying examination to determine the fitness of the candidates, to
the extent as prescribed in this Office letter No. 63/1/71-SPBI dated 17th July
1971 (copy enclosed) be observed subject to 46 the instructions contained in
the last sentence of para 1 of Department of Personnel and A.R.O.M. dated
21.1.77 referred to above. It may also be stated that the relaxation of
standard should be the minimum limit upto which the competent authorities could
go down in order to fill the vacancies reserved for ST and SC in such
qualifying examination." It appears that a doubt was raised as to what
should be the relaxed or lower standard in the case of the candidates belonging
to the Scheduled Castes and the Scheduled Tribes in qualifying examination for
promotion to a higher post on the basis of seniority-cum-fitness.
Clarifications in that behalf were issued by a Circular No. 202/17/78/STN/SPB I
dated December 19, 1978. These clarifications were as follows:
"a) No relaxation is to be made for SC
and ST candidates if sufficient number of candidates belonging to SC/ST qualify
to take up the posts reserved for them as per the standard prescribed for other
community candidates (40% in each individual paper and 45% in aggregate for
O.C. candidates).
b) Relaxation is to be made if sufficient
number of ST and SC candidates do not qualify the standard prescribed for other
community candidates.
The relaxation may be as follows :- i)
Maximum lowering of standard upto 33% in the individual papers and 38% in the
aggregate.
ii) If, however, the number of SC and ST
candidates equal to the number of vacancies become available at a high
standard, say 35% in individual papers and 40% in the aggregate, no further
lowering is to be resorted to.
iii) If the number of SC and ST candidates
qualifying at 33% in each individual paper and 38% in the aggregate is not
equal to the number of 47 vacancies reserved for them, no further lowering is
to be resorted to to ensure that number of SC and ST candidates qualifying is equal
to the number of vacancies reserved for them. In other words in no case
standard is to be lowered below 33% in each individual paper and 38% in the
aggregate." B The Railway Board's Letter No. E/SCT/70CM 15/6(B) dated July
29, 1970, is also instructive. It states :
"Sub : Filling up of promotion vacancies
Relaxation of qualifying marks for Scheduled Castes and Scheduled Tribes.
* * * * In their letter No. E(SCT)68CM15/10
dated 27th August 1968 the Board had decided to reduce minimum qualifying marks
both in "professional ability" and "aggregate" from 60
percent for others to 50 percent for Scheduled Castes and Scheduled Tribes in
respect of promotions to selection posts in class III where safety aspect is
not involved. A similar concession of 10 percent marks was granted to reserved
community candidates in competitive examinations limited to departmental
candidates in competitive examinations to fill up 10 per cent of the posts of
Clerks scale Rs.130-300 in Board's letter No. E(SCT) 68CM15/10 dated 10th
January 1970.
In respect of promotions made on
seniority-cum- suitability, the extant instructions are that the cases of
Scheduled Castes and Scheduled Tribes should be judged sympathetically without
applying too rigid a standard. In order to give practical shape to this
provision of "sympathetic consideration", the Board have now decided
that a concession of 10 per cent marks may be granted to Scheduled Castes and
Scheduled Tribes in the suitability tests written or oral, in the categories where
safety aspect is not involved." 48 Learned Counsel for the Appellants
relied upon a decision of this Court in V.V. Iyer v. Jasjit Singh, A.I.R.
1973 S.C. 194 in which it was held that where
two alternative interpretations are possible with respect to the scope and
applicability of an Item in Schedule I to the Imports (Control) Order, 1955,
made under section 3(1) of the Imports and Exports (Control) Act, 1947, and the
Customs authorities have adopted a reasonable view relating thereto which is
favourable to the revenue, such finding of the authorities cannot be interfered
with by the High Court under Article 226 of the Constitution even though
another view which can be adopted is in favour of the subject. In that case,
two alter native interpretations were possible with respect to an item in the
Schedule to the Imports (Control) Order and the Department had preferred one of
them. The interpretation placed by the Department was held by this Court not to
be unreasonable. The ratio of the above decision applies where the Court has
before it two possible alternative interpretations and the concerned Department
of the Government has accepted one of them. Here, what has happened is that two
Departments of the Government have taken one view and the Department of the
Comptroller and Auditor-General of India has taken a contrary view which is
neither warranted nor borne ut by a reading of the relevant Office Memoranda.
What relevance the above decision has to the
facts of the present case is also beyond us. It is not possible to equate the
members of the Scheduled Castes with goods imported from abroad. They are human
beings like all other human beings, the only difference being that for
centuries a large number of their countrymen have not treated them as human
beings but as sub-human creatures beyond the pale of society and even of
humanity. William Blake in his poem "Auguries of Innocence" said:
"Every Night and every Morn Some to
Misery are Born.
Every Morn and every Night Some are Born to
sweet delight.
Some are Born to sweet delight, Some are Born
to Endless Night." The members of the Scheduled Castes were the children
of the 49 "Endless Night". Their birth-right was the badge of shame;
their inheritance, the overflowing cup of
humiliation; their constant and closest companion, degradation; the bride of
their marriage, lifelong poverty; and their only fault, to be born to their
parents. They were denied education. They were denied jobs except the lowest
menial tasks. They were denied contact with persons not belonging to their
castes for their touch polluted and even their shadow defiled, though the touch
and the shadow of the animals did not, for men rode on horses and elephants and
on mules and camels and milked cows, goats and buffaloes. They were denied
worship and the doors of the temples were shut in their faces for their very
presence was supposed to offend the gods. All these wrongs were done to them by
those who fancied themselves their superiors. As the anonymous satirist said :
"We are the precious chosen few:
Let all the rest be damned.
There's only room for one or two:
We can't have Heaven crammed." The
treatment meted out to the members of the Scheduled Castes throughout the ages
was an affront to Human Rights.
It was in a spirit of atonement for the wrongs
done to them and to make restitution for the injury and injustice inflicted
upon them that the framers of the Constitution enacted Article 16(4) placing
them in a separate class in matters relating to employment or appointment to
any office under the State, formulated the Directive Principle embodied in
Article 46, and proclaimed the great Constitutional mandate set out in Article
335. F It is equally not possible to equate the members of the Scheduled Tribes
with goods imported from abroad. They too are human beings like other human
beings with this difference that for centuries they have preferred to follow
the primitive ways of their forefathers. Remote and almost inaccessible in
their hilly vastness and secluded forests, civilization has passed them by. The
benefits of high sophisticated technology is as unknown to them as its hazards
OF noxious fumes and poisonous gases. Simple and naive, they have become a rich
mine for exploitation by the human products of civilization. Their lands have
been stolen from them by skulduggery and they have 50 been tricked into selling
the products of their craft and skill for a song. It was to protect them from
such exploitation and to enable them to participate in the mainstream of the
nation's life that they have been given special treatment by Articles 16(4), 46
and 335 of the Constitution.
The interpretation to be placed upon the said
Office Memorandum dated January 21, 1977, must, therefore, be in keeping with
the above provisions of the Constitution and not as if the said Office
Memorandum were an entry in a Tariff Schedule or a notification levying import
duty upon goods.
What remains now to be examined is the manner
in which the Comptroller and Auditor-General of India has exercised his
discretion under the said Office Memorandum dated January 21, 1977. As
mentioned earlier, the learned Single Judge of the High Court accepted the
statement made by the Second Appellant a in his counter affidavit filed on
behalf of the Appellants that necessary and suitable relaxations had been made
in favour of the Respondents after taking into account the various factors
contained in the said Office Memorandum dated January 21, 1977. After the
Division Bench of the High Court had perused the file containing the proposals
for moderation of results and award of grace marks in the SAS Examination and
the Revenue and Audit Examination for Section Officers held in December 1980,
this statement held good no longer and accordingly it was sought to be
explained away in paragraph 11 of the Petition for Special Leave to Appeal as
follows :
"Although the office note did not
discuss in detail all the relevant factors, it is incorrect to say that the
authorities had not applied their mind to the actual state of affairs that
existed, resulting in arbitrary fixing of relaxation. The extent of relaxation
is to be decided by the first petitioner (that is, the Comptroller and Auditor-
General of India) at his discretion, keeping in view all relevant
factors." Like the counter affidavit filed in the writ petition the
affidavit affirming the Petition for Special Leave to Appeal was also not made
by the Comptroller and Auditor- General of 51 India but by the Joint Director
in the Office of the Comptroller and Auditor-General of India. According to the
said affidavit, what was stated in the Petition for Special Leave to Appeal was
"stated on the basis of information derived from the record of the
case". The information to be derived from the record of the case clearly
shows that the relevant factors set out in the said Office Memorandum dated
January 21, 1977, were not and could not be considered or kept in mind and the
so-called relaxation given to the members of the Scheduled Castes and Scheduled
Tribes made a mockery of the said Office Memorandum. The office file referred
to in paragraph 11 of the Petition for Special Leave to Appeal is the file
containing the said proposals for moderation of results and award of grace
marks. The said paragraph 11 is an admission that these proposals did not set
out all the relevant particulars upon which the Comptroller and Auditor General
of India could properly exercise his discretion or be made acquainted with the
material data which would enable him to take into account all the relevant
factors including the four specifically set out in the said Office Memorandum
dated January 21, 1977.
The heading of the said proposals itself show
that it was concerned only with awarding of grace marks and not with relaxation
of the qualifying standard in the case of the candidates belonging to the
Scheduled Castes and the Scheduled Tribes. Further, according to the said
paragraph 11 the authorities had applied their mind to the actual state of
affairs that existed. When what the actual state of affairs that existed is
ascertained, the above statement turns out to be as divorced from reality as
the Second Appellant's statement in his counter affidavit referred to above
earlier.
It will be useful to refer first to the
relevant paragraphs of the said proposals for moderation of results and award
of grace marks. Paragraph 4 dealt with Part II of the SAS Examination and was
as follows .
"4.(a) Part II : 809 candidates appeared
from different offices out of whom 361 have passed showing 44.6% pass which
does not compare favourably well with the 28.1% of February 1977, 41.5% of
December 1977, 55.51 of December 1978 and 34.4% of December 1979. The figures
for the previous years are after 52 moderation. The percentages of pass before
and after moderation are shown in Table No. II-B. As was done in the case of
Part I candidates it is, therefore, recommended that the border line cases
where the candidates fail by 5 marks in the aggregate inclusive of 5 marks in
one or more subjects may be considered for award of grace marks. This will
enable 30 candidates more to clear the examination in Part II; of which three
will be from the SC/ST category and the balance from the general candidates.
The effect of this proposal will be the percentage of pass of 44.6 will go upto
48.33%.
(b) In the same branch out of 72 SC/ST
candidates who appeared for the examination 24 have passed recording 33.3%. As
was recommended in the case of Part I candidates, it is recommended that the
grace marks in respect of SC/ST candidates may be given 8 in the aggregate
inclusive of 5 marks in one or more subjects. This will benefit 5 candidates
from this category, of which 3 have already been covered in the general grace
recommended for the general candidates in the previous sub-para. The award of
this grace mark will increase the percentage of pass in respect of SC/ST
candidates from 33.3 to 40.29." It is difficult to understand how the
percentage of
44.6 who passed out of the candidates who
appeared for Part II of the SAS Examination held in December 1980 did not
compare favourably well with the 28.1 per cent of the February 1977 and 41.5
per cent of the December 1977 examination of Part II of the SAS Examination. No
attempt has been made in the said proposals to focus the attention of the
Comptroller and Auditor-General of India on the total number of vacancies
reserved and the overall strength of the cadre and of the Scheduled Castes and
the Scheduled Tribes in that cadre. It is left to be gathered, if one is so
minded, from the number of tables annexed to the said proposals. The admitted
position, however, is that a general relaxation of five grace marks in the
aggregate inclusive of five marks in one or more 53 subjects was given to all
the candidates and that so far as the candidates belonging to the Scheduled
Castes and the Scheduled Tribes were concerned, they were given eight grace
marks in the aggregate inclusive of five grace marks in one or more subjects.
This resulted in five candidates belonging to the Scheduled Castes and the
Scheduled Tribes passing, out of which three had already passed by reason of
the grace marks allotted to all the candidates. Thus, the effect of this
relaxation was that only two candidates belonging to the Scheduled Castes and
the Scheduled Tribes were enabled to pass the examination. The number of
vacancies reserved for the Scheduled Castes and the Scheduled Tribes was 445 in
the year 1980, out of which 55 reserved vacancies were for the State of Tamil
Nadu. Only 72 candidates belonging to the Scheduled Castes and the Scheduled
Tribes appeared for Part 11 SAS Examination held in December 1980. Twenty-four
of them had passed without any relaxation and after such relaxation was made
altogether 29 passed. As seen earlier, out of these additional five candidates
who passed, three had passed by reason of the grace marks allotted generally to
all candidates and only two by reason of the additional grace marks given to
the Scheduled Castes and the Scheduled Tribes candidates. So far as the State
of Tamil Nadu was concerned, not a single candidate passed. As the aggregate
number of marks was 500 and eight grace marks were given to the candidates
belonging to the Scheduled Castes and the Scheduled Tribes, the percentage of
relaxation comes to about 1.3/5 per cent. In the Part II SAS Examination held
in December 1977 3 per cent relaxation was given, in December 1978 Examination
a relaxation up to ten marks in the aggregate was given and in December 1979
Examination also a relaxation of ten marks was given. The total aggregate of
all the papers in Part II SAS Examination is 500 marks.
Therefore, the minimum aggregate of 45 per
cent would be 225 marks. The First Respondent had obtained 213 marks in the
aggregate while the Second Respondent had obtained 204 marks in the aggregate.
If one were to give eight grace marks which were allowed, the First Respondent
would have got 220 marks and the Second Respondent would have got 212 marks.
Had the extent of relaxation been 2.6 per
cent that is 13 marks, the First Respondent would have passed and had it been
4.2 per cent, that is, 21 marks, the Second Respondent would have also passed.
The percentage of five general grace marks was only I per cent. The additional
three grace marks given to the Scheduled Castes and the Scheduled Tribes
candidates, 54 taking into account the extent of general relaxation, works out
to 1.3/5 per cent only. When one compares what is being done in the Posts and
Telegraphs and in the Railways with what was done in the present case, it is
clear that the relaxation which was given was purely an illusory one, paying
only lip-service to the said Office Memorandum dated January 21, 1977.
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 cosiderations of efficiency, or at the cost of the
proper functioning of the 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
consideration in the making of appointments to 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
context 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.
The above discussion shows that the entire
procedure followed in the case of the SAS Examination held in December 1980 was
completely contrary to what was required to be done under the said Office
Memorandum dated January 21, 1977. No relaxed or lower standard for the
candidates belonging to the 56 Scheduled Castes and the Scheduled Tribes was
fixed in advance of the examination. As it was not fixed in advance, the
question of it being notified to the candidates does not arise. The relaxation
by way of grace marks given after the results were ascertained on the basis of
the general qualifying standard was without proper application of mind and did
not take into consideration the relevant factors, and was, therefore, contrary
to what was required to be done by the said Office Memorandum dated January 21,
1977, and the other Office Memoranda referred to earlier and was violative of
Article 335 of the Constitution and accordingly must be held to be bad in law.
In the result, this Appeal must fail. The
Division Bench of the Madras High Court has, however, contented itself with
issuing directions to the Appellants to consider the case of the Respondents
and grant suitable relaxation to them within two months from the date of its
judgment as to whether they had qualified in Part ll Examination of the SAS
held in December 1980 and while granting such relaxation to bear in mind the
observations made in its judgment as also the criteria envisaged in the said
Office Memorandum dated January 21, 1977. The Division Bench did so because it
felt that it could not straight away declare the Respondents as having passed
the said examination. The judgment of the Division Bench of the Madras High
Court was given on January 12, 1984. More than two years have elapsed since
then. In the meantime the Appellants have approached this Court by obtaining
Special Leave to Appeal and have obtained interim stay of the execution of the
order of the Division Bench.
This interim stay has now obviously come to
an end. Further examinations, however, must have been held in the mean time.
In view of the order of interim stay, they
must have been held on the same basis as the December 1980 Examination. The
Respondents had appeared in Part II of the SAS Examination in December 1980 and,
therefore, to give the same or similar directions as were given by the Division
Bench of the Madras High Court would result in further delay and would perhaps
result in a fresh writ petition. Further, such directions cannot be given only
with respect to the Respondents because there may be other candidates belonging
to the Scheduled Castes and the Scheduled Tribes who are similarly situated nor
can such directions be confined merely to the December 1980 examination. They
also 57 should not jeopardize those who have already been promoted for none of
them are parties to this Appeal. It is, therefore, necessary that in order to
do complete justice to all concerned as required by Article 142 of the
Constitution, the matter should not be left to the Comptroller and
Auditor-General of India but all requisite directions should be given by this
Court.
For the reasons given above, we dismiss this
Appeal and confirm the judgment of the Division Bench of the Madras High Court
in Writ Appeal No. 409 of 1982, but we substitute the following Order for the
order passed by it in the said Writ Appeal :
For Part II examination of the Subordinate
Accounts Service Examination (Ordinary) and all subsequent Part II examinations
of the Subordinate Accounts Service Examination (Ordinary) held thereafter
until today there will be a relaxation of 25 marks in all for candidates
belonging to the Scheduled Castes and the Scheduled Tribes, that is, this
relaxation will cover not only the pass marks to be given in the aggregate but
will be inclusive of the pass marks to be given in each individual paper so
that the total number of marks covered by such relaxation will not exceed 25.
The Respondents and all other candidates belonging to the Scheduled Castes and
the Scheduled Tribes who will pass the said examinations as a result of the
above relaxation are declared to have passed such examinations and to have-
been promoted to the Subordinate Accounts Service in the vacancies reserved for
the members of the Scheduled Castes and the Scheduled Tribes with effect from
the date when the final declaration of the results of each such examination was
made and will be paid such salary and shall be entitled to all other benefits
on the basis of such promotion with effect from the said date. So far as
seniority is concerned, however, they will not rank above those who have
already passed and have been promoted but will be placed in the seniority list
after all those who have passed in Part II of the Subordinate Accounts to
Service Examination (Ordinary) held so far, ranking inter se according to the
rules relating to 58 seniority set out in paragraph 184 of Volume I of the
Comptroller and Auditor General's Manual of Standing Orders (Administrative).
In respect of all subsequent examinations to
be held for the Subordinate Accounts Service, the Comptroller and
Auditor-General of India will fix a relaxed or lower standard in advance and
notify it to the candidates who are going to appear for such examination. In
fixing such standard, he will bear in mind the observations made in this
Judgment and what has been held therein.
For the purpose of this Appeal the
Respondents have been compelled to come to New Delhi to appear before this
Court time and again and also had to spend money on their board and lodging.
The Appellants will, therefore, pay to each of the Respondents a sum of
Rs.1,500 by way of costs of this Appeal.
As the Respondents are not represented by any
Advocate, the Registry will communicate this order to the Respondents without
claiming the cost thereof from the Respondents.
Before parting with this Appeal, the Court
just once again express its deep sense of appreciation of the valuable
assistance rendered to it by Mr. V.A. Bobde, Advocate, who appeared as amicus
curiae, and without whose assistance it perhaps may not have been possible to
reach the above conclusion.
P.S.S. Appeal dismissed.
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