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PETITIONER: RAM BHAGAT SINGH AND ANR.

       Vs.

RESPONDENT: STATE OF HARYANA AND ANR.

DATE OF JUDGMENT04/04/1990

BENCH: MUKHARJI, SABYASACHI (CJ) BENCH: MUKHARJI, SABYASACHI (CJ) SAIKIA, K.N. (J) RAMASWAMY, K.

CITATION:  1990 SCR  (2) 329        JT 1990 (2)   114  1990 SCALE  (1)716

ACT:     Punjab Civil Services (Judicial Branch) Rules, 1951  (As adapted by Haryana State): Part C--Rule 8--Haryana  Judicial Service Examination--Prescription of 55  marks in  aggregate for  qualifying-Whether  results in denial  of  equality  of opportunity  to  scheduled castes/ scheduled  tribes  candi- dates.     Constitution of India: Articles 14, 15, 16 & 38--Haryana Judicial  Service  Examination--Fixation  of  55   marks  in aggregate for qualifying-Whether results in denial of equal- ity  of  opportunity to  scheduled  castes/scheduled  tribes candidates.

HEADNOTE:     Rule  8  of the Punjab Civil Services  (Judicial  Branch Rules,  1951, as adapted by the State of Haryana, lays  down that  no candidate shall be considered to have qualified  in the examination unless he obtains at least 55% marks in  the aggregate of all papers, including the viva-voce test.     The  petitioners  assailed  the said  provision  on  the ground that fixation of 55% marks has resulted in denial  of equality  of opportunity to the scheduled castes and  sched- uled  tribes  segments of the  community  vis-a-vis  general candidates  for determining their suitability and/or  eligi- bility for appointment in the judicial branch of the Haryana Civil  Services  in the absence of lower  percentage  having been prescribed for them as in other States. Disposing of the writ petition and the appeal, the Court,     HELD:  1. Public services and public employment  do  not exist  for providing jobs in terms of equality or  otherwise to  all.  Only public services and  public  employment  must serve public purpose and nothing that hampers or impairs the efficiency or efficacy of public services should be  permit- ted in ensuring conditions of constitutional equality. These should be done objectively, rationally and reasonably. 329     2.  Scheduled  castes and scheduled tribes  for  reasons historical  or otherwise, are unequal with the general  mem- bers  of the community in respect of ability and  qualifica- tion  for public employment. They are unable to  compete  in terms of absolute equality with the members of other  commu-

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nities  or  groups in the society. Hence, in order  to  make them  compete on conditions of equality with others  in  re- spect  of jobs and employments of the State certain  relaxa- tions  and other factors ensuring equality  are  imperative. Our Constitution so enjoins it. Article 38 of the  Constitu- tion read with Article 14, 15 and 16 so mandates it.  [332D- E; C]     3.  In  the instant case, high  efficiency  is  required because  the recruitment is in the judicial branch, that  is to  say,  for prospective judicial officers who will  be  in charge  of administration of justice in the country. But  at the same time, if possible, in order to ensure that there is equality of opportunity, a percentage should be fixed  which without,  in any way, compromising with the  efficiency  re- quired  for  the job which will be  attainable  by  backward communities, that is to say, scheduled castes and  scheduled tribes.  Unless such a percentage is fixed on the  aforesaid basis  and  a percentage is fixed  for  qualification  which would  normally be unattainable by the scheduled castes  and scheduled tribes determined on an objective basis, it  would not be possible to ensure equality of opportunity. [333D--F]     4.1  The  Government  is directed to  make  a  conscious decision objectively before the next selections take  place, and determine a minimum percentage of marks consistent  with efficiency and the need for ensuring equality of opportunity to scheduled castes and scheduled tribes. [334B]     4.2 The Government should also consider whether  further relaxation  in age in favour of scheduled castes and  sched- uled  tribes can be made; and if so, to what extent  without hampering efficiency of the administration. This should also be considered before the next selections for appointment  to the post are made. [334C]

JUDGMENT:     CIVIL  ORIGINAL JURISDICTION: Writ Petition No. 1147  of 1988. (Under Article 32 of the Constitution of India)                       WITH Civil Appeal No. 1782 of 1990. 330     From the Judgment and Order dated 5.6.1987 of the Punjab and Haryana High Court in C.W.P. No. 13 13 of 1986     R.  Venkataramani, Mahabir Singh, M.S. Ganesh  and  C.M. Nayar for the Appearing Parties. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. The petitioners are law  graduates. They  state that they belong to scheduled castes and  sched- uled  tribes  segments of the community.  They  are  seeking enforcement  of the right to equality of opportunity in  the matter of appointment to posts in the subordinate  judiciary in  the State of Haryana. The State of Haryana has  reserved 20%  of  the posts in the Haryana  Civil  Service  (Judicial Branch) for the scheduled castes and scheduled tribes. It is the case of petitioners that though 20% of the posts in  the Haryana  Civil Service (Judicial Branch) have been  reserved for  scheduled castes and scheduled tribes, the strength  of the appointments made since 1969 onwards reveals that hardly 8%  of  the total posts i.e., 40 to 45% only  of  the  cadre strength  have  been allotted to the  scheduled  castes  and scheduled  tribes.  The petitioners contend  that  in  other States  of  India different percentages of marks  have  been prescribed for scheduled castes, scheduled tribes and gener- al  candidates  for  determining  their  suitability  and/or

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eligibility  for appointment. But in Haryana, they  contend, minimum marks have been prescribed as 55% for all categories of  candidates, namely, scheduled castes,  scheduled  tribes and general candidates.     In  this connection, it may be appropriate to  refer  to the  fact  that under the Punjab  Civil  Services  (Judicial Branch)  Rules  framed in exercise of  powers  conferred  by Article 234 read with proviso to Article 309 of the  Consti- tution  of India, rules have been framed and are  prevalent. Part ’C’ of the rules deals with the rules and  instructions for  the examination of the candidates for admission to  the judicial  branch of the Haryana Civil Service. Part  ’C’  of the said rules was brought into force by the Haryana Adapta- tion Laws (State and concurrent subjects) Order, 1968. Rules 7 and 8 of the said rules, inter alia, provides as follows: "7.  No  candidate shall be called for  the  viva-voce  test unless he obtains at least 45% of marks in the aggregate  in all the written papers and 33% marks in the language  paper, Hindi (in Devanagri script). 331 8. No candidate shall be considered to have qualified in the examination unless he obtains at least 55 per cent marks  in the aggregate of all papers including the viva-voce test."     It  is the case of the petitioners that fixation of  the ,standard  of marks which the petitioners describe  as  high standard,  has  resulted  in denial of  opportunity  to  the scheduled  castes  and’ scheduled tribes thus  amounting  to denial  of  equality of opportunity in the jobs  which,  the petitioners  contend, the State otherwise sought to  achieve and  ought  to  achieve in favour of  scheduled  castes  and scheduled tribes.     We  are  of  the opinion that  equality  of  opportunity should  be  striven for and ensured  in  public  employment. Steps  should be taken to see where unequals are  competing, conditions  must  be created by relaxation or  otherwise  so that  unequals compete in terms of equality with  others  in respect of jobs and employments of the State. Our  Constitu- tion so enjoins it. Article 38 of the Constitution read with Articles 14, 15 and 16 so mandates it. In order,  therefore, to  give  those who are unequals, and it  is  accepted  that scheduled castes and scheduled tribes for reasons historical or  otherwise, are unequal with the general members  of  the community in respect of ability and qualification for public employment. Hence, in order to make the unequals compete  on conditions of equality certain relaxations and other factors ensuring  equality are imperative. Those groups or  segments of  society  which are by reasons of  history  or  otherwise unable  to  compete in terms of absolute equality  with  the members  of  other  communities or groups  in  the  society, should be ensured and assured chances of competing in  terms of  equality. They must be helped to compete equally but  it is  important to emphasise that equality of  opportunity  is sought to be achieved for the public services or employment. The  efficacy  and efficiency of that service  is  of  prime consideration.’  Equality must be there for all  to  compete for the public services. Public services and public  employ- ment do not exist for providing jobs in terms of equality or otherwise to all. Only public services and public employment must  serve public purpose and nothing that hampers  or  im- pairs  the efficiency or efficacy of public services  cannot and  should not be permitted in ensuring conditions of  con- stitutional  equality.  These should  be  done  objectively, rationally and reasonably. As is often said, it may be  that need  to ensure equality for scheduled castes and  scheduled tribes  should  not be surrendered on the facile  and  value

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based  perception  of  efficiency. Yet  efficiency  must  be ensured. Real equality must be accorded. 332     As  mentioned hereinbefore, the contention of the  peti- tioners is that 55% marks in aggregate in all papers includ- ing  viva  voce test constitute rather a high  standard  for qualification and eligibility. They contend that for most of the  scheduled caste and scheduled tribe aspirants  for  the job  it  is difficult to achieve that standard. It  is  said that  in other parts of this vast land of ours the  standard is  not as high as that. Sri Venkatramani, advocate for  the petitioners, contended that in other States on an  all-India basis  such a high standard of marks is not  envisaged.  Sri Mahabir  Singh, learned advocate appearing for the State  of Haryana and Sri C.M. Nayar, learned advocate for the  Public Service Commission contend that it must be presumed that the minimum  percentage desirable for the purpose of  efficiency has  been prescribed. It was further submitted by Sri  Nayar that  in respect of candidates other than  scheduled  castes and  scheduled tribes, normally those obtaining  far  higher than  55% marks become eligible for consideration. That  may or may not be so but what is required is that we must ensure efficiency in administration. We must, therefore, objective- ly, rationally and by a conscious process--conscious in  the sense by application of mind to the relevant factors  arrive at  a percentage which should be considered to be a  minimum one in order to ensure the efficiency of the administration. We  are conscious that high efficiency is  required  because the  recruitment is in the judicial branch, that is to  say, for  prospective judicial officers who will be in charge  of administration  of justice in the country. But at  the  same time, if possible, in order to ensure that there is equality of opportunity, a percentage should be fixed which  without, in  any way, compromising with the efficiency  required  for the  job which will be attainable by  backward  communities, that  is  to  say, scheduled castes  and  scheduled  tribes. Unless such a percentage is fixed on the aforesaid basis and a percentage is fixed for qualification which would normally be unattainable by the scheduled castes and scheduled tribes determined  on an objective basis, it would not be  possible to ensure equality of opportunity. Both S/Sri Mahabir  Singh and  Nayar have urged that the minimum must be  presumed  to have  been  so fixed in the Haryana Service.  However,  that fact  is  not  apparent and there is nothing  on  record  to indicate  that this percentage was fixed deliberately on  an analysis  and careful examination and determination  on  the lines and the principles indicated above.     In  that  view  of the matter, in our  opinion,  in  the interest  of justice and our constitutional mandates and  in the light of the efficiency of the services and with a  view to  create a sense of justice, it is necessary for the  Gov- ernment concerned to consider this question as 333 to what should be the minimum percentage of marks  necessary for  the administration. We direct that the Government  will make a conscious decision objectively before the next selec- tions  for the post in Haryana Judicial Service take  place, and determine a minimum percentage of marks consistent  with efficiency and the need for ensuring equality of opportunity to scheduled castes and scheduled tribes.     It was also contended by Sri Venkataramani that some  of the candidates belonging to the scheduled castes and  sched- uled tribes have become overaged, therefore, the  Government should  also consider whether further relaxation in  age  in favour of scheduled castes and scheduled tribes can be made;

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and  if so, to what extent without hampering  efficiency  of the  administration. This should also be  considered  before the next selections for appointment to the post are made.     In  the  aforesaid light, special leave  is  granted  in civil appeal No. 15,000/88 and the judgment and order of the High  Court  of Punjab & Haryana, dated 5th June,  1987  are modified  to the extent indicated above. The  writ  petition and  the  appeals are disposed of  accordingly  without  any order as to costs. P.S.S.                                              Petition disposed of. 334