Superintending
Engineer, Public Health, U.T. Chandigarh & or Vs. Kuldeep Singh & Ors
[1997] INSC 57 (21 January 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK
ACT:
HEAD NOTE:
O R D
E R
This special leave petition arises from the order of the Central Administrative
Tribunal, Chandigarh Bench, made on 6.9.1996 in OA No. 330/CH/89. Admittedly,
the respondent belongs to Scheduled Castes and was eligible for promotion as
Head-Draftsman. For the promotion to the said post, the petitioners appointed
Mr. Ravinder Kumar Sood on March 30, 1988
and Mr. Dharam Nand on March
14, 1989. The
respondent had challenged their promotion and non-consideration of his case
claiming that he was eligible to be considered in the post as a reserved
candidate though the post was meant for Scheduled Tribes. By order of the
Government of India, the posts are inter-changeable between Scheduled Castes
and the Scheduled Tribes and if the candidate belonging to Scheduled Tribes is
not available, the eligible candidate belonging to Scheduled Castes is entitled
to be considered for promotion to the post reserved for Scheduled Tribe
Candidates. Since he was not considered, the legitimate right to promotion
given according to the roster was denied to him. The Tribunal accepted the
contention and allowed the petition.
In the
meanwhile, pending his application he came to be promoted on June 26, 1993. However, direction was given to
consider him from the date he was actually due for promotion with consequential
benefits in the place to which R.K. Sood was promoted.
Mr.
K.B. Rohtagi, learned counsel for the petitioners, contends that n respect of
the Union Territory of Chandiargh, no Scheduled Tribes list is available and,
therefore, the vacancy reserved for Scheduled Tribes cannot be treated to be
one available to the Scheduled Tribes. We find no force in the contention. The
Government of India, Minister of Home Affairs, admittedly, by letter dated June 12, 1986 had given direction that since in
the Union Territory of Chandigarh, the population of Scheduled Tribes is not
available, the principle of alternative exchange to the Scheduled Castes should
be adopted. Consequently, when vacancy No.1 in the roster is available to the
Scheduled Tribes, it requires to be filled by considering, for promotion, the
candidates belonging to Scheduled Castes. It is, therefore, clear that though
Scheduled Tribe candidate was not available to fill up the vacancy at No.1 in
the roster, the candidate belonging to the Scheduled Castes was required to be
considered according to the Rules and given promotion on seniority-cum-fitness
basis which is the rule under which the candidates are required to be
considered.
Admittedly,
as on the time Mr. R.K. Sood was promoted, i.e., March 30, 1988 the respondent was admittedly eligible to be considered bu
he was not considered on the specious ground that as per the carry forward rule
the period of three years had expired. Therefore, he was not eligible at that
time.
That
contention is also not acceptable for the reason that in the brochure for
Scheduled Castes and the Scheduled Tribes, the word "subsequent
recruitment year" has been interpreted in Chapter II thereof as under:
"Recruitment
year shall mean a calendar year and for purposes of three years limit for carry
forward of reserved vacancies shall mean the year in which recruitment is
actually made." Thus, it is clear that in a calendar year, i.e., from Ist
January to 31st December of the calendar year, if the recruitment has been made
and if the candidates belong to the Scheduled Castes and Scheduled Tribes are
not available, the reserved vacancies are required to be carried forward for
three recruitment years. Take for instance, the recruitment took place in the
year 1986 and the candidates belonging to Scheduled Castes and Scheduled Tribes
are not available, the vacancies are required to be carried forward for three
recruitment years thereafter. Suppose the second recruitment takes place in
1989, the second recruitment year is 1989 but not the year 1987, as sought to
be interpreted by the respondent. It is seen and admitted that in the year
1987, the respondent was not eligible. Therefore, the post was carried forward
to the year 1987 and in 1988 the post was filled up without considering the
case of the respondent and the petitioners construed it to be three recruitment
years and thereby it is said that the period of tree years for the purpose has
elapsed. The construction is fallacious and deliberate to deny the benefit of
reservation in the light of the unequivocal instructions as extracted
hereinbefore. Moreover, no proceedings for reservation and prior approval of
the Government of India, Ministry of Home Affairs were obtained. We are
surprised to note, as rightly pointed out by the Tribunal, that the petitioner,
Union Territory Office, despite given repeated opportunities to produce the
roster, has suppressed production of the roster which they are enjoined to
maintain. In the petition, no explanation has been offered. The duty to
implement the rule of reservation is a constitutional duty to be performed
honestly, sincerely and in its true contents and spirit which the petitioner
appears to have derelicted.
Article
14 prohibits discrimination and Article 16(1) accords equality of opportunities
in the matter of appointment to an office or post under the State. Article 38
read with the Preamble enjoins the State to accord socio- economic justice, the
basic feature in all institutions of national life. Article 335 of the
Constitution enjoins that the claims of the members of the Scheduled Castes and
Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to service and
posts in connection with the affairs of the Union
or of a State. It is settled law that it should be read consistent with Article
46 of the Constitution to take special care of the educational and economic
interests of the Scheduled Castes and the Scheduled Tribes and to protect them
from injustice and all forms of exploitation. Appointment to an office or post
under the State is one of the policies of the State to accord economic justice
as part of social justice for integration of Scheduled Castes and Scheduled
Tribes in the social mainstream dignity of person and equality of status. It would
be an opportunity to improve excellence, a fundamental duty. In the light of
Article 16 (4A) introduced by the Constitution (77th Amendment) Act, 1995 the
claims of the Scheduled Castes and the Scheduled Tribes for promotion shall be
taken into consideration in making appointment or giving promotion. IT is the
constitutional duty coupled with power of the authorities implementing the
rules of recruitment including promotion. In that behalf, this Court.
In
Comptroller and Auditor-General of India, Gian Prakash, New
Delhi and Anr. V/s.
K.S. Jagannathan & Anr. [(1986) 2 SCC 679 at 693], a three-Judge Bench was
to consider whether the appellant-Comptroller and Auditor-General of India was
under the constitutional obligation to fix the lesser standard of examination
in the light of the brochure, to inform the Scheduled Castes and Scheduled
Tribes employees of the same and to conduct refresher courses before conducting
examination and whether the failure to discharge the duty was unconstitutional.
This Court considered the constitutional obligation on the part of the
authorities in implementing the rule of reservation and pointed out in paras
21, 22 and 23 as under:
"21.
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 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 v. N.M.
Thomas [at page 996 of the Reports:
SCC p.
379, para 164] "the directive principles form the fundamental feature and
the social conscience of the Constitution and the Constitution enjoins upon the
State to implement these directive principles".
22.
The object of the said Office Memorandum dated January 21, 1977, is to provide an adequate opportunity of promotion to the
members of the Scheduled Castes and the Scheduled Tribes. By reason of 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
[(1971) 3 SCR 267] and Akhil Bhartiya Soshit Karamchari Sangh v. Union of India
[(1961) 1 SCC 246].
23.
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 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% and the Scheduled Tribes at 7 1/2%
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 Tribes candidates are not available in the qualifying examinations
on the basis of 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 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 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 tot he 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 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." This principle of power coupled with duty was succinctly
stated by Earl Cairns L.C. in the House of Lords of Julius V/s. Lord Bishop of
Oxford [5 App. Cas. 214 at 222-223] quoted with approval therewith by this
Court in Commissioner of Police, Bombay V/s Gordhandas Bhanji [(1952)] SCR 135
at 147] thus:
"There
may be something in the nature of the thing empowered to be done, something in
the object for which it is to be done, something in the conditions under which
it is to be done, something in the title of the person or persons for whose
benefit the power is to be exercised, which may couple the power with a duty,
and make it the duty of the person in whom the power is responded, to exercise
that power when called upon to do so".
It
would thus be clear that the petitioner was under constitutional duty coupled
with power. Every public servant is a trustee of the society and in all facets
of public administration, every public servant has to exhibit honesty,
integrity, sincerity and faithfulness in implementation of the political,
social, economic and constitutional policies to integrate the nation, to
achieve excellence and efficiency in the public administration. A public
servant entrusted with duty and power to implement constitutional policy under
Articles 16(4), 16(4-A), 15(4) 335 and all inter-related directive principles,
should exhibit transparency in implementation and of accountable for due
effectuation of constitutional goals. Maintenance of the roster and strict adherence
to it in accordance with the brochure issued by the Government of India in that
behalf to implement the rule of reservation in promotion is the charge and
trust put on public servants. The Constitution has trusted the public servant
as honest administrator to effectuate public policy and constitutional goals.
The petitioner herein, has betrayed that trust and tended to frustrate the
public policy. It is deducible from the facts that the petitioner failed to
perform that constitutional duty. The Administrator of the Union Territory of Chandigarh
should look into and take appropriate action against the concerned erring
officers and report compliance to the Registry of this Court within two months.
The
Tribunal, therefore, had rightly held that in the year 1988, the vacancy ought
to have been filled up by promoting the respondent when R.K. Sood was
considered and vacancy reserved for Scheduled Tribes was filled up without
considering the case of the respondent. Omission thereof amounted to violation
of constitutional duty and avoidance of implementation of the rule of
reservation and the roster provided by the Government. The view of the
Tribunal, therefore, is correct in law warranting no interference.
The
special leave petition is accordingly dismissed.
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