IMPORTANT POINT
1970 O.M. relaxing standards in the case of Scheduled Castes/Tribes candidates in departmental competitive examinations and in departmental confirmation examinations was valid. 1997 OM withdrawing the 1970 OM is illegal.

JUDGMENT

R.M.LODHA, CJI. –

1. On 23.12.1970 (1970 O.M.), the Department of Personnel issued Office Memorandum being O.M. No. 8/12/69-Estt.(SCT) relaxing standards in the case of Scheduled Castes/Tribes candidates in departmental competitive examinations and in departmental confirmation examinations. The said O.M. remained operative for about 17 years until O.M. No. 36012/23/96-Estt.(Res) dated 22.7.1997 was issued whereby the instructions contained in 1970 O.M. were withdrawn. Thereafter by Notification dated 30.11.1998, the Central Secretariat Service Section Officers' Grade/Stenographers' Grade 'B (Limited Departmental Competitive Examination) Regulations, 1964 (for short "1964 Regulations") were amended by Central Secretariat Service Section Officers' Grade/Stenographers' Grade 'B (Limited Departmental Competitive Examination) Amendment Regulations, 1998 (for short "1998 Regulations").

The result of this amendment was that in 1964 Regulations, Regulation 7, sub-regulation (3) was omitted on and from 22.7.1997. The explanatory note appended to the above Notification reads as follows: In compliance with the Supreme Court's judgment in the case of S. Vinod Kumar vs. Union of India (JT 1996(8) SC 643), the Central Government decided to omit the provisions of regulation 7(3) of the Central Secretariat Service Section Officers' Grade/Stenographers' Grade 'B' (Limited Departmental Competitive Examination) Regulations, 1964 which provides for relaxed qualifying standard in favour of the Scheduled Castes and the Scheduled Tribes candidates to make up the deficiency in the reserved quota which has been rendered legally invalid and unenforceable. This is certified that no one is being adversely affected by giving this amendment retrospective effect.

2. In S. Vinod Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 this Court relying upon Indra Sawhney Vs. Union of India and Others, 1992 Supp (3) SCC 217 held that provision for lower qualifying marks/standard of evaluation was not permissible under Article 16(4) of the Constitution of India in view of Article 335.

3. Though Article 16(4A) had been brought into Constitution by the Constitution (Seventy-seventh Amendment) Act, 1995 with effect from 17.6.1995, S. Vinod Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 did not take into consideration this constitutional provision. In our view, S. Vinod Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 is per incuriam.

4. Moreover by the Constitution (Eighty-second Amendment) Act, 2000, a proviso has been appended to Article 335 of the Constitution with effect from 8.9.2000. The proviso reads as follow: Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in mattes of promotion to any class or classes of services or posts in connect with the affairs of the Union or of a State.

5. On 8.10.1999, when special leave petitions, from which these appeals arise, came up for consideration before a two-Judge Bench, the Bench first formulated the point for consideration in the matter, viz., whether it was permissible for the authorities to fix lesser number of qualifying marks for reserved candidates in the matter of 'promotion'. The Bench noticed three judgments of this Court;

(1) Indra Sawhney Vs. Union of India and Others, 1992 Supp (3) SCC 217,

(2) S. Vinod Kumar & Another Vs. Union of India and Others, (1996) 6 SCC 580 and

(3) Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 and observed that in Superintending Engineer, Public Health, U.T. Chandigarh and Others Vs. Kuldeep Singh & Others, (1997) 9 SCC 199 the Court did not notice the observations of majority as well as observations of Sawant, J. in Indra Sawhney Vs. Union of India and Others, 1992