1999 Supreme(SC) 1361

1999(9) Supreme 401
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court and M.P. Administrative Tribunal)
S.B. Majmudar, A.P. Misra and U.C. Banerjee, JJ.
Haridas Parsedia etc. -Appellants
versus
Urmila Shakya & Ors. -Respondents
Civil Appeal Nos. 6590-6592 of 1999
(Arising out of SLP (C) Nos. 9284-9286 of 1998)
With
C.A. Nos. 6593-6594/1999 @ SLP (C) Nos. 12827-828/1998, and C.A. Nos. 6595-6597/1999 @ SLP (C) Nos. 11952-11954/1998
Decided on 19-11-1999
Counsel for the Parties :
For the Appellants : P.P. Rao, Sr. Advocate, Raj Kumar Gupta, H.V.P. Sharma, A.N. Bardiyar, Advocates.
For the Respondents : M.N. Krishnamani, Sr. Advocate, T. Raja, Vikas Bansal, Satish K. Agnihotri, Ms. Madhur Dadlani and B.S. Banthia, Advocates.

IMPORTANT POINT
Relaxation of pass mark to SC/ST candidate in competitive examination for recruitment can be give to SC/ST candidates even when competitive examination is limited departmental promotion wherein SC/ST candidate alone participate and competition is inter se SC/ST candidates.

Headnote:Service Law - Reservation for SC/ST-Relaxation of general passing marks in competitive examination-Rules Limited direct recruitment to higher post-Rule providing for reduction of 10 of passing marks for Scheduled Castes and Scheduled Tribes candidates vis-a-vis passing marks for general category candidates-Examination held for SC/ST candidates alone to fill up posts reserved for SC/ST-Competition inter se SC/ST candidates-Whether rule of relaxation of qualifying marks could be applied to such a case where general candidates are not competing-Held, yes.

       The Government of Madhya Pradesh had issued a notification on 19th February, 1978 giving 10 relaxation to SC/ST candidates in the departmental examination to be conducted for recruiting candidates to the higher posts of Transport Sub-Inspector. If direct recruitment of departmental candidates, is to be resorted to for filling up 20 posts of Transport Sub-Inspector and in that process, the appellants, who are SC candidates have to compete with general category candidates, being their colleagues belonging to clerical staff then, even though the Rules provide that each of the candidates had to get 50 of marks in the written examination, for SC/ST candidates 10 relaxation could be given and passing marks for them would be 40 in each of the written papers. The M.P. State Department of Transport issued an advertisement dated 8th April, 1993 for departmental examination for filling up the posts of Transport Sub-Inspectors. However, the said examination was to be confined only to fill up reserved posts meant for SC/ST candidates. As the recruitment of departmental candidates from clerical cadre was confined only to SC/ST candidates for filling up reserved vacancies meant for them, the question arose as to whether the general passing marks provided by the Rules at 50 in each paper could be brought down to 40 by giving 10 relaxation for these SC/ST candidates. The Administrative Tribunal took the view that when the appointments of candidates appearing at the departmental examinations were subject to passing of the said written test by each of the candidates with minimum 50 marks in each of the papers, the question of relaxing the general passing marks for SC/ST candidates by 10 from the general passing marks i.e. up to 40 passing marks, could not arise for the appellants as the recruitment itself was confined to the same category of candidates viz. SC/ST candidates who compete for the posts reserved for then as per the advertisement and, therefore, the question of relaxation or dilution from the general passing marks need not be considered for them as they had to compete along with SC/ST candidates and not general category candidates.

       Held : Rule 11(A) read with Schedule VI which would apply and not Sub-rule 4 of Rule 13, as amended in 1985. However, that will make no difference to the result of these proceedings, as we have already noted earlier, the appointment Rules of 1971 did contain relaxation power under Rule 20. Therefore, the amended Rule 11(A) read with Schedule VI will also be governed by the provisions of Rule 20, as after amendment in 1985, Rule 11(A) became part and parcel of parent Rules of 1971. We have, therefore, to see whether the State of Madhya Pradesh, in its discretion and within permissible limits of Article 16, had taken any policy decision to give general relaxation of passing marks to SC/ST candidates appearing at the departmental examinations. The answer to this question is furnished by the communication dated 30th January, 1990 by the Government of Madhya Pradesh regarding implementation of the recommendations of the Committee constituted for the departmental examination conducted by the Home Department for the Officers/ Employees of different Departments of the Government. The said communication called upon all Government Departments and all heads of departments in Madhya Pradesh to implement recommendations of the Committee constituted for the departmental examination conducted by the Home Department for the Officers/Employees of different departments of the government. The Committee was chaired by Dr. Ishwar Das, an Additional Principal Secretary. Its recommendations which were accepted by the Government of Madhya Pradesh clearly provided that the officers of the SC/ST be given relaxation of 10 marks as per the existing system. (Paras 10 & 11)

       It is obvious that this Government communication, which is within the permissible limits of Article 16(4) of the Constitution, also was legally permissible as per relaxation Rule 20 of the Rules of 1971 governing the recruitment in question. It cannot be disputed that limited recruitment to the posts in question as per Rules 11(A) and 13(4) of the amended Rules of 1985 required departmental candidates to appear at the examination as laid down by Schedule VI thereof. As seen earlier, apart from the aforesaid government communication of 1990, even in 1978, prior to the amendment of Rules in 1985, there was a government decision reflected by the notification of 19th February, 1978 issued by the General Administration Department (SC/ST cell) that in departmental examinations also apart from the general recruitment to posts in the services, the employees belonging to SC/ST candidates were to be given relaxation up to 10 of marks of the prescribed minimum marks as required to be obtained by general category candidates. It is, of course, true that the said notification directly deals with departmental examination for in-service candidates. But this very notification reiterated the policy decision taken on 16.11.1964 by the State Government in its General Administration Department for giving 10 relaxation to the SC/ST candidates who are eligible for appointment in government service. It becomes, therefore clear that as early as in 1964, the State of Madhya Pradesh, in the light of Article 16(4), had taken a policy decision to give relaxation of 10 passing marks to SC/ST candidates. Though that referred to general recruitment for appointment initially in the government service the very same scheme of relaxation was extended to departmental examinations while in-service candidates had to compete for being appointed to higher posts in service. Thus, there was a clear policy decision taken by the State of Madhya Pradesh that for direct recruitment, relaxation of passing marks by 10 for SC/ST candidates who compete for initial appointments to government service was to be made available and was also to be available to those in-service SC/ST candidates who appear at the departmental examination for being recruited to the higher posts as in-service candidates. This was a clear-cut government policy legally permissible under Article 16(4) of the Constitution for giving 10 relaxation of passing marks to such reserved category candidates as compared to general category candidates. It is, of course, true that government Resolution of 16.11.1964 was prior to the recruitment Rules of 1971, which is governing the present recruitment, but once in 1978 the aforesaid government notification was issued reiterating the same government policy for direct recruitment as envisaged by the earlier government notification of 1964, it necessarily follows that the very same policy of relaxation was continued from 1978 onwards by the Madhya Pradesh State Government for governing the recruitment procedure for in-service candidates as well as for outside candidates wherein as compared to general category candidates, SC/ST candidates were to be given 10 relaxation in passing marks. On a conjoint reading of amended recruitment Rule 11(A) with Schedule VI and the government policy decision under Article 16(4) as culled out from the Government Memorandum of 1964 continued with approval by the Government Notification of 19.2.1978 as well as the latter government communication of 30.1.1990, that there is no escape from the conclusion that for recruitment in question, which was held in 1993, under existing government policy, 10 relaxation of passing marks to departmental candidates belonging to SC/ST category as compared to the general category candidates could be validly made. The aforesaid policy decision of the State of Madhya Pradesh must be treated to have directly applied to the recruitment process pursuant to the advertisement of 8th April, 1993 in the present case. (Para 12)

       There was in force a validly operating policy decision as per Article 16(4), taken by the State of Madhya Pradesh for granting 10 relaxation in passing marks and that relaxation policy decision did apply on the facts of the present case as well. (Para 13)

       The contention that this relaxation will not be available to SC/ST candidates if the departmental examination based on same subject and same syllabus, they have no competition from general category candidates, and the examination is confined only to the reserved category candidates cannot be countenanced. Such a denial of relaxation will be ex-facie discriminatory and arbitrary. It would also fly in the face of established government policy of relaxation of 10 passing marks under Article 16(4) for such reserved category candidates. It is purely a fortuitous circumstance that the examination is confined only to the SC/ST candidates for being appointed to reserved posts comprising of 36 out of total available promotion posts and whereat general category candidates do not and cannot compete. Even when SC/ST candidates compete among themselves for the reserved category posts, they are required to pass the written examination. For them the passing marks remain the same i.e. 40 as compared to general category candidates for whom 50 passing marks are prescribed. This is the firm policy of the Government for the benefit of SC/ST candidates. It is easy to visualise that after passing such departmental examination, all of them will be absorbed in some higher cadre of Transport Sub-Inspector along with general category candidates. Secondly, in our view it is patently erroneous to hold that the decision of the Government for relaxation of passing marks for SC/ST departmental candidates at the departmental examination can be applicable only when in such examination, the departmental candidates belonging to general category also compete with the SC/ST candidates and not otherwise. Holding general examinations for all types of candidates at a time or separate examinations for only SC/ST candidates for being appointed to the reserved posts on the one hand and for general category candidates on the other wherein SC/ST candidates can also compete for unreserved posts, is totally irrelevant for judging the efficacy of the relaxation policy. The general sweep of the policy decision already taken by the State of Madhya Pradesh under Article 16(4) cannot get diluted on the basis of such an irrelevant and fortuitous circumstance. (Para 15)