* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 25th July , 2011
Judgment Delivered On: 7th September, 2011
+ W.P.(C) 8951/2003
CSIR ..... Petitioner
Through: Mr.V.K.Rao, Senior Advocate
with Mr.Vaibhav Kalra, Advocate
versus
S.C.LALI & ORS. .....Respondents
Through: Mr.D.K.Aggarwal, Senior
Advocate with Mr.Suryakant
Singla and Ms.Shagun
Bhatnagar, Advocates.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Pertaining to relaxing standards in favour of members
belonging to Scheduled Castes and Scheduled Tribes in
relation to promotion, Government of India issued OM No.
8/12/69-Estt. (SCT) dated 23.12.70. It reads as under:
“Subject :- Relaxation of standards in favour of
Scheduled Castes/Scheduled Tribes candidates in
departmental competitive examinations for
promotion and in departmental confirmation
examinations.
W.P.(C) No.8951/2003 Page 1 of 14
Attention of the Ministry of Finance etc. is invited
to Ministry of Home Affairs O.M. No. 1/1/70-Est.
(SCT) dated 25th July, 1970, in which it has been
provided that in 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 up the vacancies reserved
for them, candidates belonging to these
communities may be selected to fill up the
remaining vacancies reserved for them provided
that they are not found unfit for appointment to
such posts or post. A question has been raised
whether relaxation in the qualifying standards
could be granted to Scheduled Castes/Scheduled
Tribes candidates on the same basis in promotions
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 promotion/confirmations made through such
examinations, Scheduled Castes /Scheduled Tribes
candidates who have not acquired the general
qualifying standards in such examinations could
also be considered for 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.”
2. A perusal of the Office Memorandum would reveal that
in matters of promotion, qualifying standards could be
relaxed by the Departmental Promotion Committees in
relation to members belonging to the Scheduled Castes and
Scheduled Tribes.
3. The OM of the year 1970 was clarified, on the subject
where promotion was based on seniority subject to fitness;
and on the issue of fitness qua members belonging to the
W.P.(C) No.8951/2003 Page 2 of 14
Scheduled Castes and Scheduled Tribes, by an Office
Memorandum No.30021/10/76-Estt.(SCT) dated 21.1.1977.
It reads as under:-
“Subject:- Relaxation of standards in the
case of Scheduled Castes/Tribe candidates in
qualifying 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, the 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
W.P.(C) No.8951/2003 Page 3 of 14
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 Scheduled
Castes and Scheduled Tribes in that cadre.”
4. The Constitutional validity of the Office Memorandums
above-noted was challenged, on the ground that the
Constitution of India empowered the Legislature to make
Laws and in the absence of a legislation, the Executive to
make reservations, for members of the Scheduled Castes and
Scheduled Tribes, but did not empower the Executive to
relax, in favour of members of the Scheduled Castes and
Scheduled Tribes, the qualifying norms to be attained for
promotion.
5. The challenge succeeded and the decision is reported
as 1996 (8) JT (SC) 643 S.Vinod Kumar vs. UOI.
6. In view of OM dated 23.12.1970 and OM dated
21.1.1977 being held to be ultra-vires the Constitution, the
Government of India issued Office Memorandum dated
22.07.1997, which reads as under:-
“Subject: Reservation in promotion-
Prescription of lower qualifying marks/ lesser
standard of evaluation.
The undersigned is directed to say that in
terms of instructions noted in the margin,
certain relaxations/concessions in the
matter of qualifying marks/standards of
evaluation of performance are to be made in
favour of candidates belonging to the
Scheduled Castes and the Scheduled Tribes
W.P.(C) No.8951/2003 Page 4 of 14
while considering them for promotion.
2. The validity of such lower qualifying
marks/lesser standards of evaluation was
called into question in Courts in the context
of the judgment of the Supreme Court in the
case of Indira Sawhney Vs Union of
India. The Supreme Court, in the case of
S.Vinod Kumar Vs. Union of India (JT 1996 (8)
S.C.643) has held that the provision for lower
qualifying marks/lesser level of evaluation, in
the matter of promotion, provided for
candidates belonging to the Scheduled Castes
and the Scheduled Tribes under
Government‟s instructions, is not permissible
under Article 16(4) in view of the command
contained in Article 335 of the
Constitution. The Court has further observed
that even if it is assumed for the sake of
argument that reservation is permitted by
Article 16(4) in the matter of promotion, a
provision for lower qualifying marks or lesser
level of evaluation is not permissible in the
matter of promotion, by virtue of Article
335. The Court also held that the protection
for reservation in promotion for five years,
given by the Supreme Court, vide para 829
of the judgement in Indira Swahney‟s case, did
not save the provisions for lower qualifying
marks/lesser level of evaluation.
3. It has accordingly been decided to withdraw
the instructions contained in this Department‟s
O.M. No.8/12/69-Estt. (SCT) dated 23/12/70
and O.M. No. 36021/10/76-Estt. (SCT) dated
21.1.1977, so far as these provide for lower
qualifying marks for Scheduled
Castes/Scheduled Tribes candidates in
departmental qualifying/competitive
examinations for promotion. Similarly, the
relevant portions of para 6.3.2 of the DPC
guidelines circulated vide
this Department‟s O.M. No.22011/5/86-
Estt.(D) dated 10.4.1989, to the extent thatW.P.(C) No.8951/2003 Page 5 of 14
they provide for consideration of
Scheduled Castes/ Scheduled
Tribes candidates without reference to merit
and the prescribed “bench mark”, are hereby
rescinded.
4. It is clarified that the effect of these
instructions is that henceforth there shall be
no separate standards of evaluation for
candidates of the Scheduled Castes/Scheduled
Tribes for promotion and assessment of all
candidates for this purpose will be with
reference to uniform standards. Any other
instructions of the Government, which provide
for lower qualifying marks/lesser standards
of evaluation in matters of promotion for
candidates belonging to the Scheduled
Castes/Scheduled Tribes, may also be treated
as having been modified to this extent.
5. These instructions take immediate effect.
6. All Ministries/Departments are also
requested to bring these instructions to the
notice of their Attached/Subordinate Offices
and Autonomous Bodies/Public Sector
Undertakings under their control for
compliance.”
7. It be highlighted that vide OM dated 22.7.1997, OMs
dated 23.12.1970 and 21.1.1977 were expressly withdrawn.
8. The Constitution 82nd Amendment Act 2000 amended
Article 335 of the Constitution of India by adding a proviso
thereto, which reads as under:-
“Provided that nothing in this Article shall prevent
in making of any Provision in favour of the
members of the Scheduled Castes and Scheduled
Tribes for relaxation in qualifying marks in an
Examination or lowering the standards of
evaluation, for reservation in matters of promotion
to any class or classes of services or posts inW.P.(C) No.8951/2003 Page 6 of 14
connection with the affairs of the Union or of a
State.”
9. Having empowered itself under the Constitution to relax
qualifying marks or to lower the standards of evaluation for
purposes of induction as also promotion in favour of
members belonging to the Scheduled Castes and Scheduled
Tribes, on 3.10.2000 the Government of India issued an
Office Memorandum which reads as under:-
“Subject: Reservation in promotion — Prescription
of lower qualifying marks/lesser standard of
evaluation.
The undersigned is directed to refer to
Department of Personnel & Training’s OM No.
36012/23/96-Estt. (Res) dated 22nd July, 1997 vide
which various instructions of the Government
providing for lower qualifying marks/lesser
standards of evaluation in matters of promotion
for candidates belonging to the Scheduled Castes
and Scheduled Tribes had been withdrawn, on the
basis of Supreme Court’s judgement in the case of
S. Vinod Kumar Vs. Union of India.
2. The undersigned is further directed to say that
the matter has been reviewed, consequent to
which the following proviso to Article 335 has
been incorporated in Constitution by the
Constitution, (Eighty-Second Amendment) Act,
2000:-
“Provided that nothing in this Article shall prevent
in making of any Provision in favour of the
members of the Scheduled Castes and Scheduled
Tribes for relaxation in qualifying marks in an
Examination or lowering the standards of
evaluation, for reservation in matters of promotion
to any class or classes of services or posts in
connection with the affairs of the Union or of a
State.”
W.P.(C) No.8951/2003 Page 7 of 14
3. In pursuance of the enabling proviso of Article
335 of the Constitution, it has now been decided
to restore, with immediate effect, the relaxations/
concessions in matters of promotion for
candidates belonging to SCs/STs by way of lower
way of lower qualifying marks, lesser standards of
evaluation that existed prior 22.7.1997 and as
contained in the instructions issued by the
Department of Personnel and Training from time
to time including OM No. 8/12/69-Estt. (SCT) dated
23.12.1970, No. 36021/10/76-Estt. (SCT) dated
21.1.1977 and para 6.3.2 of the DPC guidelines
contained in Department of Personnel and
Training’s OM No. 22011/5/86- Estt.(D) dated
10.4.1989. In other words, the effect of these
instructions would be that the Department of
Personnel and Training’s OM No. 36012/23/96-
Estt.(Res) dated 22nd July, 1997 becomes
inoperative from the date of issue of this OM.
4. These orders shall take effect in respect of
selections to be made on or after the date of issue
of this OM and selections finalised earlier shall not
be disturbed.
5. All Ministries/Departments are requested to
bring these instructions also to the notice of their
Attached/Subordinate Offices and Autonomous
Bodies/ Public Sector Undertakings tinder their
control for compliance.”
10. A perusal of the Office Memorandum dated 3.10.2000
would reveal that in view of the enabling proviso i.e. the
proviso to Article 335 of the Constitution, the Government of
India reintroduced the relaxation in favour of members
belonging to the Scheduled Castes and Scheduled Tribes
pertaining to promotions and, by way of incorporation by way
of reference, the policy restored was as per the OMs dated
23.12.1970 and 21.1.1977 which were expressly withdrawn
vide OM dated 22.7.1997.
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11. The petitioner, issued a Circular Letter No.17/66/94-PPS
dated 08.12.2000, which reads as under:-
“Sub:-Relaxation in threshold marks for normal
assessment for SC/ST employees under para 2.4
of revised MANASI am directed to state that as per the decision of
the Government of India notified vide DoPT
O.M.No.36012/23/96-Estt(Res.)-Vol.II dated
3.10.2000 to restore with immediate effect, the
relaxation/concessions in matter of promotion for
candidates belonging to SCs/STs by way of lower
qualifying marks, lesser standard of evaluation
that existed prior to 22.7.97, the instructions
contained in DoPT OM No. 36012/23/96-Estt.(Res.)
dated 22.7.1997 for withdrawing instructions for
lower qualifying marks/ lesser standard of
evaluation for promotion for candidates belonging
to SCs/STs, become in operative from the date of
issue of above Govt. of India, DoPT, OM dated
3.10.2000.
In the light of the above decision of the Govt. of
India, the provisions made under the assessment
scheme made applicable to S&T employees of
CSIR for less threshold marks for assessment of
SC/ST candidates was also required to be
restored.
The matter has been considered by the competent
authority and has approved restoration of the
provision of relaxation in the prescribed threshold
marks for normal assessment of SC/ST candidates
as contained under para 2.4 of revised MANAS,
which was subsequently modified to 10 marks
uniformly vide CSIR circular No.17/66/94-PPS,
dated 28.1.97, for the assessments under Revised
MANAS as well as erstwhile Bye-law 71 (b) scheme
falling due on or after 3.10.2000.
It is requested that the above decision may kindly
be brought to the notice of all concerned in your
Lab./Instt. for their information, guidance and
necessary action.”
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12. It is apparent that petitioner‟s circular dated 8.12.2000
was notifying the applicability and the requirement to
implement the Government of India‟s OM dated 3.10.2000.
13. Pertaining to the respondent, the relevant facts are that
his entitlement to be assessed to be promoted in the next
higher grade became due on 9.10.1999. The assessment
was not done and the year 2001 was reached. An appraisal
Self Assessment Report was rejected by the Competent
Authority and the result thereof was petitioner‟s appraisal
being downgraded and this was conveyed to the petitioner on
12.7.2001 granting him 4 weeks‟ time to submit a
representation if he so desired. Before the 4 weeks expired
the Appraisal Assessment Committee on 16.7.2001.
Respondent and others were appraised. All were appraised
on the same criteria and it be highlighted that the
respondent is a member of a Scheduled Caste. In the
appraisal, 30% weightage had to be accorded to the
appraisal reports of the candidates, and needless to state,
the respondent was affected by his Self Appraisal Report
being downgraded.
14. Not being placed in the higher scale, the respondent
filed an Original Application before the Central Administrative
Tribunal and urged therein 2 grounds: (i) that he was
adversely affected by the assessment committee having met
on 16.7.2001 inasmuch as his representation against the
lowering of his self assessment as per the appraisal was still
pending; and (ii) since by the date the appraisal committee
met, the Government of India OM dated 3.10.2000 was in
force, there was no need to apply the same prospectively and
W.P.(C) No.8951/2003 Page 10 of 14
ought to have been applied retrospectively i.e. for members
belonging to Scheduled Castes and Scheduled Tribes a lower
qualifying eligibility norm had to be prescribed.
15. On the matter of self-assessment report, the Tribunal
held: “… on communication of APAR grading on 12.07.2001,
holding of assessment on 16.07.2001 deprives the applicant
a reasonable opportunity and as such the
selection/promotion in violation of the rules vitiates it.”
16. On the claim for relaxed standards, the Tribunal held:
“…if the selection is held after 03.10.2000 relaxed standards
are to be accorded. As such the decision of the respondents
taken on 08.10.2000 where as per para 2.4 of the revised
MANAS are applicable to the assessment falling due after
03.10.2000 cannot be sustained. In the present case, as the
assessment relates to 1999, but the assessment has taken
place only on 16.07.2001, i.e., after the OM dated
03.10.2000, the selection which is not yet finalised even for
the year 1999, relaxed standards are to be applied.
Accordingly, the decision of the respondents not to extend
relaxed standard and marks as envisaged in para 2.4 of the
Scheme is unsustainable in law.”
17. Accordingly, the Tribunal directed petitioner to reassess
the respondent by relaxing the standards in his favour.
18. As regards the fault found by the Tribunal of the
Appraisal Committee making assessment as on 16.7.2001 in
the teeth of the respondent being afforded an opportunity on
12.7.2001 to make a representation against his self appraisal
being downgraded, learned counsel for the petitioner
conceded that the view taken by the Tribunal was correct but
in respect of the direction issued by the Tribunal wanted this
W.P.(C) No.8951/2003 Page 11 of 14
Court to record a fact; that the representation made by the
respondent had been rejected on 27.12.2001 and thus if any
re-assessment had to be done, it had to be with respect to
the downgraded appraisal of the respondent.
19. Indeed, the fault found by the Tribunal on the first count
is correct, but we would have expected the Tribunal to have
noted the fact that in view of respondent‟s representation
being rejected, it would be useless to direct that the
reassessment would be necessitated on account of the taint.
It is settled law that a wrong which results in no meaningful
effect, has to be ignored.
20. The second finding of the Tribunal, unfortunately for us,
is without any reasoning from the Tribunal. A finding by way
of conclusion has been stated sans any reason.
21. The second issue raises the question as to what was the
effect of the decision of the Supreme Court in S.Vinod
Kumar‟s case (supra) on the 2 OMs dated 23.12.1970 and
21.1.1977 in light of the Constitution 82 nd Amendment
empowering the lowering of standards and relaxing
qualifying marks in matters of promotion of members
belonging to Scheduled Castes and Scheduled Tribes.
22. The Doctrine of Eclipse in relation to enactments or
executive instructions held to be ultra vires the Constitution,
after the cause of unconstitutionality is removed, guides us
that, being on the Statute Book, the enactment held
unconstitutional will operate „proprio vigore‟ when the
Constitutional bar is removed i.e. there is no need for a fresh
legislation to give effect thereto. We may only highlight one
decision of the Supreme Court on the subject AIR 1958 SC
468 MPV Sundaramier vs. State of A.P.
W.P.(C) No.8951/2003 Page 12 of 14
23. Can it be said that after the Constitution 82 nd
Amendment the OMs dated 23.12.1970 and 21.1.1977
become operative proprio vigore i.e. on their own strength?
24. They would have, but for the fact that on 22.7.1997,
both Office Memorandums were expressly withdrawn. This is
evident from paragraph 3 of the OM dated 22.7.1997 which
uses the expression that the instructions contained in the 2
OMs are withdrawn. Para 4 makes it further clear that
henceforth uniform standards of evaluation would have to be
followed while assessing unreserved candidates and
members of the Scheduled Castes and Scheduled Tribes.
Thus, it cannot be said, in the facts of the instant case that
after the Constitutional bar was overcome, the 2 Office
Memorandums became operative on their own strength
inasmuch as the Constitutional Amendment came in the year
2000 and 3 years prior thereto in the year 1997, the 2 Office
Memorandums were expressly withdrawn. It was only on
3.10.2000 that the Government reintroduced the relaxed
norms for members belonging to the Scheduled Castes and
Scheduled Tribes and merely because, by way of reference,
the policy laid down in the Office Memorandums dated
23.12.1970 and 21.1.1977 was incorporated in the OM dated
3.10.2000 would not make the said 2 OMs operative between
the time they were expressly withdrawn i.e. 22.7.1997 and
till the OM dated 3.10.2000 was issued.
25. Now, no conscious decision was taken by the
Government to make applicable the relaxed norms from a
retrospective date and none can be inferred by implication
based on the strength of the decision reported as (2006) 6
SCC 289 Vijay vs. State of Maharashtra & Ors. for the reason
W.P.(C) No.8951/2003 Page 13 of 14
a conscious decision was taken to make the OM applicable
prospectively and law being that where a Departmental
Promotion Committee or an Appraisal Committee meets
belatedly and considers matters as of an anterior date, Rules
and Law as applicable on the date as of which assessments
have to be made would govern the procedures to be followed
and norms to be adopted as existing for the date on which
appraisals have to be done, unless a conscious decision is
taken by the Government to retrospectively change the rules
of the game, and finding no such conscious decision taken
and on the contrary the conscious decision being to apply the
law prospectively, the inevitable conclusion has to be that
the direction issued by the Tribunal is contrary to law and
thus we dispose of the writ petition setting aside the
impugned judgment and order dated 10.9.2003. The writ
petition is allowed and OA No.2949/2002 filed by the
respondent is dismissed.
26. There shall be no order as to costs.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
SEPTEMBER 07, 2011
dk
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