http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 28  

PETITIONER: COMPTROLLER AND AUDITOR GENERAL OF INDIA, GIAN PRAKASH, NEWD

       Vs.

RESPONDENT: K.S. JAGANNATHAN & ANR.

DATE OF JUDGMENT01/04/1986

BENCH: MADON, D.P. BENCH: MADON, D.P. PATHAK, R.S. SEN, A.P. (J)

CITATION:  1987 AIR  537            1986 SCR  (2)  17  1986 SCC  (2) 679        1986 SCALE  (1)1077  CITATOR INFO :  RF         1992 SC   1  (91)

ACT:      Constitution of India :      Article 226  - Powers  of Court  - Writ  of Mandamus  - Issuance of  -  To  direct  Government/public  authority  to exercise its discretion in a particular manner.      Articles 16(4),  46 and  335 -  Qualifying examinations for promotion  - Relaxation  of standards  in  the  case  of Scheduled Caste/Tribe  candidates -  Validity/permissibility of - Whether to be consistent with efficiency of service.      The  Comptroller   and  Auditor   General’s  Manual  of Standing Orders (Administrative), Volume I, Chapter V, paras 195, 197,  198, 199  & 207  - Subordinate  Accounts  Service Examinations  (Ordinary)   -  Relaxation   of  standard  for Scheduled Caste/Tribe candidates - Whether violates Ministry of Home  Affairs Office  Memorandum dated January 21, 1977 - Relaxation -  Determination of  in  advance  -  Notification before the examination Necessity of.      Statutory  interpretation   -  Welfare   Legislation  - Necessity for being construed in the light of constitutional provisions guaranteeing protection.      Practice and  Procedure -  Passing of orders and giving directions to  compel performance  in a  proper  and  lawful manner  of   discretion  conferred   upon  Government/public authority - Competency of High Court.      Civil Services  - Members  of Scheduled Castes/Tribes - Relaxation  of  standards  in  qualifying  examinations  for promotion -  Determination in  advance - Notification before examination - Necessity for. 18

HEADNOTE:      Office  Memorandum   No.  36021/10/76-Estt.(SCT)  dated January 21,  1977 issued  by the Department of Personnel and Administrative Reforms  to all  Ministeries and Departments, required that  if a sufficient number of Scheduled Caste and Scheduled  Tribe   candidates  were  not  available  in  the qualifying  examinations   on  the   basis  of  the  general standard, to fill all the vacancies reserved for them in the promotional posts  suitable  relaxation  in  the  qualifying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 28  

standard be  made in  their case,  bearing in  mind (1)  the number of  vacancies reserved,  (2) the  performance of  the Scheduled Caste  and Scheduled  Tribe candidates  as well as the general  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 Scheduled  Tribes in  that cadre,  the extent of  relaxation to  be  determined  on  each  occasion having regard to the relevant factors.      The respondents,  who belong  to the  Scheduled Castes, were working  as Selection  Grade Auditors in the Department of  Indian   Audit  and   Accounts,  appeared  for  Part  II Subordinate Accounts Service (S.A.S.) Examination (Ordinary) in December,  1980 for  the next promotional post of Section Officer. The  total aggregate  of all  the  papers  was  500 marks. Candidates  were required to obtain the minimum of 40 per cent  marks in the individual subject and 45 per cent in the  aggregate.  The  first  respondent  secured  213  marks (42.6%) and  the second  204 marks  (40.8%), but  failed  to reach the aggregate requirement of 225 marks. The Department gave a general relaxation of 5 grace marks in the aggregate, inclusive of  5 marks  in one  or more  subjects, to all the candidates.  As   against  that   the  Scheduled  Caste  and Scheduled Tribe  candidates were  given 8 grace marks in the aggregate  inclusive  of  5  grace  marks  in  one  or  more subjects, which could be of no avail to the respondents.      The respondents  filed a  petition under Art. 226 for a direction to  the appellants  to make suitable relaxation in the qualifying  standard of  marks for Part II of the S.A.S. Examination held  in December 1980 in terms of the aforesaid Office Memorandum  and to  declare them as having passed the said examination. 19      That writ  petition was  dismissed but  the writ appeal was allowed by a Division Bench holding that the authorities concerned had  not applied their mind to the actual state of affairs  that   existed,  in  fixing  the  relaxation  which negatived the  benefit that  lawfully would have gone to the Scheduled Caste and Scheduled Tribe candidates, and directed the  appellants   to  grant   suitable  relaxation   to  the respondents as  envisaged in  the  Office  Memorandum  dated January 21,  1977 and to consider whether they had qualified in Part II of the said examination.      In this  appeal by  special leave  it was contended for the appellants  that a  Division Bench of a High Court could not issue a writ of mandamus to direct a public authority to exercise its  discretion in a particular manner, that fixing a relaxed  or lower  standard in  advance for  a  qualifying examination was not permissible in law, that the authorities could not  give relaxation  to Scheduled Caste and Scheduled Tribe candidates  in such manner as to impair the efficiency of the  service, and  that  the  relaxation  could  be  made provided the  candidates belonging  to Scheduled  Castes and Scheduled Tribes were found fit for promotion.      Dismissing the appeal, the Court, ^      HELD : 1. The High Courts exercising jurisdiction under Article 226  of the  Constitution have  the power to issue a writ of  mandamus or  a writ in the nature of mandamus or to pass  orders   and  give   necessary  directions  where  the government or  a public  authority has failed to exercise or has wrongly  exercised the discretion conferred upon it by a statute or  a rule or a policy decision of the government or has exercised  such discretion  mala fide  or on  irrelevant considerations or  by ignoring  the relevant  considerations

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 28  

and materials or in such a manner as to frustrate the object of conferring  discretion or  the  policy  for  implementing which such  discretion has been conferred. In all such cases and any  other fit and proper case the High Court can compel the performance  in  a  proper  and  lawful  manner  of  the discretion so  conferred and  in a  proper case  in order to prevent injustice  resulting to  the concerned  parties, the Court may itself pass an order or give directions, which the government or the public 20 authority should  have passed  or given  had it properly and lawfully exercised its discretion. [39 A-D]      In the instant case, what the Division Bench did was to issue directions  to  appellants  in  the  exercise  of  its jurisdiction under Art. 226 of the Constitution. [36H; 37A]      Dwarkanath,  Hindu   Undivided  Family  v.  Income  Tax Officer, Special Circle, Kanpur & Anr., [1965] 3 S.C.R. 536, 540; Hochtief  Gammon v.  State of  Orissa &  Ors., [1976] 1 S.C.R. 667, 676; Mayor of Rochester v. Regina, [1858] E.B. & E. 1024,  1032, 1034; The King v. The Revising Barrister for the Borough  of Hanley,  [1912]  3  K.B.  518,  528-9,  531; Padfield and  Ors. v. Minister of Agriculture, Fisheries and Food &  Ors.,  [1968]  A.C.  997  and  Halsbury’s  Law’s  of England, 4th Edition (Vol. I, Para 89) referred to.      2. By  reason of  the provisions  of Art.  16(4) of the Constitution a  treatment to  the members  of the  Scheduled Castes and  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 Art. 16(1). The reservation in favour of backward  classes of  citizens, including  the members of the Scheduled  Castes and  Scheduled Tribes, as contemplated by Art.  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. [40 C-E]      State of Punjab v. Hiralal & Ors., [1971] 3 S.C.R. 267; and Akhil  Bharatiya Soshit  Karamchari Sangh  (Railway)  v. Union of India & Ors., [1981] 1 S.C.C. 246 referred to.      3.1 The Office Memorandum dated January 21, 1977 is not intended only  for the  Department of  the  Comptroller  and Auditor-General of  India. It also applies to all Ministries and Departments.  The discretion  conferred by  it is  to be exercised in the discharge of constitutional duty imposed by Art. 335  in keeping with the Directive Principles laid down in Art.  46, for  its  object  is  to  provide  an  adequate opportunity of  promotion to  the members  of the  Scheduled Castes and Scheduled Tribes. [55 D; 39 E; G; 40 B]      State of  Kerala & Anr. v. N.M. Thomas & Ors., [1976] 1 S.C.R. 906 referred to. 21      3.2 The  Office Memorandum  neither provides  a general relaxation for  all examinations nor is the relaxation to be made under it unguided or not based on any principle. On the contrary,  it   expressly  provides   that  the   extent  of relaxation should  be decided on each occasion whenever such examination is  held by  taking into  account  all  relevant factors, including  those specifically  set out therein. [45 D-E]      3.3 It  postulates  two  qualifying  standards,  one  a general qualifying  standard for all candidates appearing in the departmental  competitive examinations for promotion and in departmental  confirmation examinations,  and the other a relaxed or  lower qualifying  standard  for  the  candidates belonging to  the Scheduled  Castes and  Scheduled Tribes in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 28  

respect of  each examination, so that if a sufficient number of candidates  belonging to  these Castes  and Tribes do not qualify according  to the  general  standard,  they  can  be considered for  promotion in  the light  of the  relaxed  or lower qualifying  standard, where  there  are  a  number  of vacancies in the posts falling in the reserved quota and not enough candidates  belonging to  these Castes  and Tribes to fill such  vacanices according  to  the  general  qualifying standard. When  these two qualifying standards are fixed the difference between  the general  qualifying standard and the relaxed or  lower qualifying  standard will form the zone of consideration  when   the  result  of  each  examination  is ascertained according  to the  general qualifying  standard. The relaxed or lower qualifying standard is the minimum upto which the  discretion under the said office memorandum could be  exercised.   The  fixation   of  the  relaxed  or  lower qualifying standard, however, could not be construed to mean that all those who qualify according to that standard are to be promoted.  How many  are to  be promoted must depend upon the number  of vacancies  which remain unfilled on the basis of the  general qualifying  standard. [41 D-E; 42 B-D; G; 43 D-E]      4.  The   candidates  who   appear   for   departmental competitive  examinations  for  promotion  and  departmental confirmation  examinations   know  in  advance  the  general qualifying standard  because such standard is prescribed. It is but  in consonance with reason and logic that the relaxed or lower qualifying standard should also be fixed in advance and made  known so  that the  candidates  belonging  to  the Scheduled 22 Castes and Scheduled Tribes will know before they appear for the examination  to what  extent they  can expect relaxation for themselves  on the  basis of the criteria set out in the office memorandum. [42 H; 43 A, 44 C, 43 B; 44 C]      5. It is not open to the appellants in the instant case to assail  the eligibility  of the respondents for promotion in view  of the  requisite certificate under para 207 of the Comptroller and  Auditor General’s Manual of Standing Orders (Administrative), Volume  I, Chapter V, having been given to them by the concerned Accountant General/Head of Office with due responsibility  and not  as a  matter of form, that they were  regular   in  attendance,  energetic,  of  good  moral character and  business like  habits and  not likely  to  be disqualified for  appointment to  the  Subordinate  Accounts Service as  not possessing  the aptitude  for the  work of a holder of  a post  in that  service, and  that  they  had  a reasonable prospect  of passing the examination. Unless some event had  occurred between  the date  of the  giving of the certificate and  final declaration  of results,  which could disqualify a candidate from discharging the duties of a post in the  S.A.S., he  is to  be considered  fit for  promotion subject  only   to  the   condition  that   he  passes   the examination. [55F, 33G-H; 34A, 55B-C]      6.1 Public  good and  public interest both require that the administration  of the Government and the functioning of its Services should be carried out properly and efficiently. Article 335  of the  Constitution, which  provides  for  the claims of  the members of the Scheduled Castes and Scheduled Tribes to  be taken  into consideration  in  the  making  of appointments to  services and  posts in  connection with the affairs of  the Union  or of  a State,  itself requires that this should  be done  consistently with  the maintenance  of efficiency of administration. [54 E-F]      6.2 The  question of  impairment of  efficiency of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 28  

Subordinate Accounts  Service in  the instant case, however, does not  arise. The respondents were selected as candidates for the  said examination  by the Accountant General/Head of Office under para 199 of the Manual, the essential condition of such  selection being  that the  candidates  so  selected would,  if   qualified  by  examination,  be  likely  to  be efficient in  all the duties of the S.A.S. It is, therefore, not open  to the appellants to take a contrary stand. [54 F; 55 A; F-G] 23      7. The  entire procedure followed in the case of S.A.S. Examination held  in December  1980  by  the  Department  of Comptroller and  Auditor-General of  India in respect of the Scheduled  Caste   and  Scheduled   Tribe   candidates   was completely contrary  to what  was required  to be done under the office  memorandum dated January 21, 1977. No relaxed or lower standard  for the candidates belonging to these Castes and Tribes  was fixed  in advance  of the  examination.  The relaxation by  way of  grace marks  given after  the results were ascertained  on the  basis of  the  general  qualifying standard was  without proper application of mind and without taking the  relevant  factors  into  consideration.  In  the proposals submitted  for moderation  of results and award of grace marks  no attempt had been made to focus the attention of the  Comptroller and  Auditor-General on the actual state of affairs  that existed,  the  total  number  of  vacancies reserved and  the overall  strength of  the Scheduled Castes and Scheduled  Tribes in  that  cadre.  It  was,  therefore, violative of  Art. 335  of the  Constitution and accordingly bad in law. [55 G - 56 B]      8. Where  two alternative  interpretations of a statute are possible  and the  department prefers  one of  them, its action cannot  be said to be unreasonable. However, what has happened in  the instant  case is that while two Departments of the  Government have taken one view the Department of the Comptroller and  Auditor-General has  taken a contrary view, which is  neither warranted  nor tenable. The interpretation to be  placed upon  the said  Office Memorandum  must be  in keeping with  Arts. 16(4),  46 and  335 of the Constitution. [48 C-D]      V.V.  Iyer   v.  Jasjit   Singh,  AIR   1973  S.C.  194 distinguished.      In order  to do  complete justice  to all concerned, as required by  Art. 142  of the  Constitution, it was directed that there  shall be  a relaxation  of 25  marks in  all for candidates belonging  to the  Scheduled Castes and Scheduled Tribes for  Part II  of  the  Subordinate  Accounts  Service Examinations (Ordinary) held in December 1980 and subsequent thereto by  the Office of Comptroller and Auditor-General of India. The  respondents and  all other  candidates similarly situated, who  would pass  the said examinations as a result of the  aforesaid relaxation,  shall  be  declared  to  have passed such  examinations 24 and to  have  been  promoted  to  the  Subordinate  Accounts Service of the said Department in the vacancies reserved for the members  of the  Scheduled Castes  and Scheduled  Tribes with effect  from the date when the final declaration of the results of  each such  examination was  made. They will not, however, rank  in seniority  above those  who  have  already passed and  have been  promoted, but  will be  placed in the seniority list after all those who have passed in Part II of the S.A.S.  Examinations (Ordinary)  held  so  far,  ranking inter se  according to  the  rules  relating  to  seniority. Relaxed or  lower standard  for future examinations shall be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 28  

fixed in advance and notified to the candidates. [57 A; C-H; 58 A-B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2952 of 1984.      From the  Judgment and  Order dated  12.1.1984  of  the Madras High Court in W.A. No. 409 of 1982.      M.S. Gujral,  R.N. Poddar,  Dalveer  Bhandari  and  P.P Singh for the Appellants.      Respondent-in-person, V.A.  Bobde (Amicus  Curiae)  for the Respondents.      The Judgment of the Court was delivered by      MADON, J.  : This Appeal filed by Special Leave granted by this  Court under  Article 136  of  the  Constitution  is directed against  the judgment  of a  Division Bench  of the Madras High  Court in Writ Appeal No. 409 of 1982 and raises a question  of importance  to the  members of  the Scheduled Castes and the Scheduled Tribes working in the Department of Indian  Audit   and  Accounts  who  seek  promotion  to  the Subordinate Accounts Service.      The Respondents  belong to the Scheduled Castes and are working as  Selection Grade  Auditors in  the Department  of Indian Audit  and Accounts  at Madras.  The next promotional post for  them is  that  of  Section  Officer  in  the  same Department and  in order to obtain such promotion, Selection Grade Auditors are required to pass the Subordinate Accounts Service 25 Examination   (hereinafter   referred   to   as   "the   SAS Examination"). The  SAS Examination  consists of  two parts, namely, Part I and Part II. Both the Respondents have passed the Part  I Examination held in December 1979. They appeared for the  Part II  Examination in December 1980. Both of them secured the  minimum number  of  marks  in  each  individual subject which  was 40  per cent and in some papers more than the minimum  number  of  marks  but  failed  to  secure  the aggregate minimum which was 45 percent. The First Respondent secured 42.4  per cent  and the  Second Respondent  40.8 per cent.      The  Respondents   thereupon  filed  a  petition  under Article 226  of the  Constitution, being  Writ Petition  No. 10706 of  1981, in  the Madras High Court praying for a writ of mandamus directing the Comptroller and Auditor-General of India and  the Accountant General-I, Madras - the Appellants before us  - to  make in  accordance with  the  instructions contained in  the Office  Memorandum  No.  36021/10/76-Estt. (SCT) dated  January 21,  1977, issued  by the Department of Personnel &  Administrative Reforms  to all  Ministries etc. suitable relaxation  for the  Respondents in  the qualifying standard of marks for Part II of the SAS Examination held in December 1980  and to declare them as having passed the said examination. The  said writ  petition was  dismissed with no order as  to costs  by a  learned Single  Judge of  the High Court. The  Respondents thereupon  filed the  aforesaid Writ Appeal No. 409 of 1982 which was allowed by a Division Bench of the  High Court directing the Appellants to give suitable relaxation to  the Respondents  within two  months from  the date of its judgment and to consider whether the Respondents had qualified  themselves in  Part II of the SAS Examination held in  December 1980 and further directing the Appellants, while  granting   such  relaxation,  to  bear  in  mind  the observations made by it in its judgment as also the criteria

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 28  

envisaged in  the said  Office Memorandum  dated January 21, 1977. The  Division Bench  made no order with respect to the costs of the Appeal.      The Respondents  were represented  by advocates  at the hearing of  the writ  petition but  they appeared before the Division Bench  in person.  They are also not represented at the hearing of this Appeal but with a view to ensure that no injustice may  result to  the Respondents by reason of their not having legal assistance, we requested Mr. V.A. Bobde, 26 Advocate, to  appear as  amicus curiae,  and  the  Court  is greatly beholden  to Mr.  Bobde for  the assistance which he has rendered  to the Court and the labour and industry which he has put in order to enable him to do so.      Before examining  the judgment  under  appeal  and  the correctness of  the submissions  advanced at  the Bar, it is necessary  to   refer   to   certain   provisions   of   the Constitution, the relevant Office Memoranda and the Standing Orders bearing upon the subject.      The Constitution  of India  has made certain provisions with a  view to  undo the  wrong and  to right the injustice done  to  the  members  of  the  Scheduled  Castes  and  the Scheduled  Tribes   for  centuries.   Article  335   of  the Constitution provides  that the claims of the members of the Scheduled Castes  and the  Scheduled Tribes  should be taken into consideration,  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. Article  46, which  occurs in Part IV containing  the   Directive  Principles   of  State  Policy, provides that  the State shall 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  shall protect  them from  social injustice and  all forms  of exploitation.  Article 16 which embodies the  Fundamental Right  of all citizens to equality of  opportunity   in  matters   relating  to  employment  or appointment  to   any  office  under  the  State,  makes  an exception in clause (4). Clause (4) is as follows :           "(4) Nothing  in this  article shall  prevent  the           State  from   making   any   provision   for   the           reservation of  appointments or posts in favour of           any backward  class  of  citizens  which,  in  the           opinion  of   the   State,   is   not   adequately           represented in the services under the State."      The said  Office Memorandum  dated  January  21,  1977, referred to above, provides as follows :           "Subject :- Relaxation of standards in the case of           Scheduled Caste/Tribe candidates in qualifying 27           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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 28  

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 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 the Scheduled Castes and Scheduled Tribes in that cadre."      The Office Memorandum dated December 23, 1970, referred to in  the said  Office Memorandum  dated January  21, 1977, provides as follows : 28           "Subject :-  Relaxation of  standards in favour of           Scheduled Castes/Scheduled  Tribes  candidates  in           departmental    competitive    examinations    for           promotion   and   in   departmental   confirmation           examinations.      Attention of the Ministry of Finance etc. is invited to Ministry of  Home Affairs O.M.No. 1/1/70-Est.(SCT) dated the 25th July,  1970, in  which it has been provided that in the 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 all  the  vacancies reserved for them, candidates belonging to these communities may be  selected to fill up the remaining vacancies reserved for them  provided they  are not found unfit for appointment to such  post or  posts. A  question has been raised whether relaxations in  the qualifying standards could be granted to Scheduled Castes/Scheduled  Tribes candidates  on  the  same basis in  promotion 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 promotions/ confirmations  made through  such  examinations, Scheduled Castes/Scheduled  Tribes candidates  who have  not acquired   the   general   qualifying   standard   in   such examinations    could     also     be     considered     for promotions/confirmations provided  they are  not found unfit for  such  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."      The Office Memorandum dated November 27, 1972, referred to in  the said  Office Memorandum  dated January  21, 1977, inter alia provides as follows :           "Subject :-  Reservations for Scheduled Castes and           Scheduled Tribes  in  posts  filled  by  promotion           Promotions on  the basis  of seniority  subject to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 28  

         fitness. The undersigned  is directed  to refer  to para  2-C of  the Ministry of Home Affairs O.M. No. 1/12/67-Ests.(C) dated the 29 11th July  1968 according  to which  there is no reservation for Scheduled  Castes and  Scheduled Tribes  in appointments made by  promotion on  the basis  of  seniority  subject  to fitness, although  cases involving supersession of Scheduled Castes and Scheduled Tribes officers in Class I and Class II appointments are required to be submitted for prior approval to the  Minister or  Deputy Minister  concerned and cases of supersession in  Class III and Class IV appointments have to be reported  within  a  month  to  the  Minister  or  Deputy Minister concerned for information.      2. The  policy in  regard to reservations for Scheduled Castes and  Scheduled Tribes  officers in  posts  filled  by promotion on  the basis  of seniority subject to fitness has now been  reviewed and  it has been decided, in supersession of the  orders contained  in the  aforesaid para  2-C of the O.M. dated  11th July,  1968, that there will be reservation at 15%  for Scheduled Castes and 7-1/2% for Scheduled Tribes in promotions  made on  the basis  of seniority  subject  to fitness, in appointments to all Class I, Class II, Class III and Class  IV posts  in grades  or  services  in  which  the element of  direct recruitment,  if any,  does not exceed 50 per cent."      In this  connection it  will be useful also to refer to Ministry of Home Affairs Office Memorandum No.16/17/67-Estt. (C) dated February 8, 1968. The said Office Memorandum deals with reservations  for the  members of  the Scheduled Castes and the  Scheduled Tribes  in services  and with the minimum standards in  examinations  for  recruitment.  The  relevant paragraph of the said Office Memorandum is as follows :           "4. In  the case  of direct  recruitment through a           qualifying  examination   a  minimum  standard  is           generally  fixed  and  candidates  attaining  that           standard  are   placed  on  the  select  list  for           appointment against  vacancies occurring from time           to time. In such cases, therefore, a lower minimum           qualifying standard should be fixed for candidates           belonging  to   Scheduled  Castes   and  Scheduled           Tribes, taking  into account  the minimum standard           necessary  for   maintenance  of   efficiency   of           administration. If 30           the  minimum   qualifying  standard   for  general           candidates is  reviewed at a later date, the lower           minimum   qualifying    standard   applicable   to           Scheduled Castes  and Scheduled  Tribes should  be           reviewed."      Under Article  148 (5)  of the Constitution, subject to the provisions  of the  Constitution and  of any law made by Parliament, the  conditions of service of persons serving in the  Indian   Audit  and   Accounts   Department   and   the administrative powers of the Comptroller and Auditor-General are to  be such  as may  be prescribed  by rules made by the President  after   consultation  with  the  Comptroller  and Auditor  General.   The  Comptroller  and  Auditor-General’s Manual  of   Standing  Orders  (Administrative),  Volume  I, contains the  provisions applying  to the  organization  and control of  the Indian  Audit and  Accounts Department,  the Indian Audit  and Accounts Service, the Subordinate Accounts Service,  clerical   staff  of  the  Department,  Divisional Accountants and  other cognate  matters. Chapter  VII of the said  Manual   deals  with   Divisional  Accountants.  Under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 28  

paragraph 314,  Divisional Accountants constitute a separate cadre. Paragraph  318 makes  it a  specific condition of the appointment of a Divisional Accountant that he is liable for service anywhere  within the  jurisdiction of the Accountant General concerned  including his own office. Under paragraph 335, the  cadre of Divisional Accountants in each office has a  selection   grade  with  effect  from  January  1,  1961. Divisional Accountants  promoted to  the selection grade are normally to  be entrusted  with charges  which are  heavier, more important and responsible than those entrusted to other Divisional  Accountants.  The  Respondents  belong  to  this grade.  Under   paragraph  336  members  of  the  Divisional Accountants’  cadre   are  eligible  for  promotion  to  the Subordinate Accounts  Service (hereinafter  referred  to  as "the SAS")  subject to the conditions governing appointments in that  service set out in Chapter V of the said Manual and necessary facilities are to be afforded to them by utilizing the provisions  of paragraph  318 and  posting from  time to time a  selected number of Divisional Accountants to work in the Audit Office.      Chapter V  of the  said  Manual  deals  with  the  SAS. Paragraph 176 provides that the SAS is a Central Subordinate Service under  the  rule-making  control  of  the  President acting 31 in consultation  with the  Comptroller  and  Auditor-General constituted for  the subordinate  supervision of the working of the  Indian Audit  and Accounts Department. It is divided into several  branches. Under paragraph 178, appointments to the SAS  are to  be made  by the  Accountants General, etc., partly by  confirmation  of  eligible  apprentices  and  SAS Accountants on  probation but  mainly by  promotion  of  the eligible  clerks   in  the   offices  and   the   Divisional Accountants  under  their  control  subject  always  to  the condition that  the eligible  persons are  also qualified in the  opinion   of  the   appointing  authority  by  ability, character  and   experience  to   discharge  adequately  and efficiently the  duties required  of the incumbent of a post in the  SAS. Under  paragraph 180,  no person  who  has  not passed the departmental examination prescribed in Section II of Chapter  V is  to be eligible for appointment to the SAS. Paragraph 184  deals with  seniority in the SAS cadre. Under it, subject  to the  conditions prescribed in paragraphs 178 and 180,  a clerk  or a Divisional Accountant who passes the SAS  Examination   in  an   earlier  examination  will  have precedence in  appointment to  the SAS  over  a  person  who passes in a later examination. As amongst persons who passes in the  same examination,  the one  senior in  the  clerical cadre will have a prior claim for such appointment. Further, when the  date of  completely passing the SAS Examination is the same, the seniority is to be determined according to the year of recruitment. Paragraph 187 provides that appointment to the  SAS is  departmental promotion  for purposes  of the orders governing  reservation of  vacancies in favour of the members of  the Scheduled  Castes and  the Scheduled Tribes, but in  so far as appointment is also made from eligible SAS Apprentices and SAS Accountants on probation, the appointing authority is  to pay  due regard  to the proper and adequate representation  of  these  communities  in  the  SAS.  Under paragraph 210, no candidate is to be allowed to take the SAS Examination of  any branch  other than  that of  the  branch which is  appropriate to  the establishment  in which  he is serving.  The   said  paragraph   further   sets   out   the examinations  which  are  regarded  as  appropriate  to  the members of  the establishment working in different branches.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 28  

The appropriate  examination for  those working in Civil and Audit Accounts Offices is SAS (Ordinary) Examination.      As the  Respondents were  working as  Auditors  in  the office of  the Accountant-General,  Madras, the  appropriate examination for them was the SAS Examination (Ordinary). 32      Paragraph   195    provides   that   the   departmental examination qualifying for appointment to the SAS is divided into two  parts and an examination in both the parts will be normally held once a year for all Audit and Accounts Offices in all  branches on  notified dates. The relevant provisions of paragraphs 197 and 198 are as follows :           "197. Subject  to the  various instructions issued           by the  Comptroller and  Auditor General from time           to time,  and also  subject to his final approval,           the  Accountants   General/Heads  of  Offices  may           permit the  candidates in  their offices to appear           in  the   appropriate   branch   of   the   S.A.S.           Examination provided  they are  otherwise eligible           to take  the  Examination.  The  names  and  other           particulars of  the candidates  permitted to  take           the Examination  should be sent to the Comptroller           and Auditor  General by  the 15th August each year           in Form  No. 8  which should  not be  larger  than           double foolscap  size. The Accountants General and           other Heads  of the  Offices should  see that  the           particulars noted  therein are  correct especially           in regard to the number of chances a candidate has           already availed  of, the  age  and  the  exemption           marks  obtained   by  the  candidates.  To  ensure           correctness, the  Heads of  Offices should get the           particulars  in   the  statement   checked  by  an           Accountant and an Officer other than those who are           responsible for its preparation....."           "198. The  selection of  candidates for the S.A.S.           Examination is primarily the responsibility of the           Head of the Office who may be aided by an Advisory           Committee in the discharge of this responsibility.           The composition and strength of the Committee will           be determined  by the  Head of  the Office and the           Committee itself  will be  an advisory  body only,           the final  selection  resting  with  the  Head  of           Office himself.  The preliminary  selection should           be made  as early as possible after the results of           the last S.A.S. Examination are circulated so that           intending candidates  may start  their preparation           with the  practical certainty  that they  will  be           permitted to take up the Examination...." 33 Paragraph 199 provides as follows:           "199. The  essential condition  which shall govern           the selection  by the  Accountant General or other           Heads of  Offices is  that the  candidate selected           shall, if  qualified by  examination, be likely to           be efficient  in all the duties of the Subordinate           Accounts Service."      Paragraph 207 provides as follows:           "207. Candidates satisfying the conditions set out           in paragraphs 199 to 201 are eligible, but have no           claim to  appear for the examination. The Heads of           Offices  should   certify  at   the  foot  of  the           statement  required  in  paragraph  197  with  due           responsibility and  not as  a matter of form, that           the  candidates   recommended   are   regular   in           attendance, energetic, of good moral character and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 28  

         business-like  habits,   are  not   likely  to  be           disqualified for  appointment to  the  Subordinate           Accounts Service  as not  possessing the  aptitude           for the  work  of  a  holder  of  a  post  in  the           Subordinate Accounts  Service and that they have a           reasonable prospect of passing the examination." Under paragraph  201, a  candidate who has not passed Part I of the SAS Examination, is not to be allowed to take Part II of the  SAS Examination.  The Respondents  were permitted to appear for  Part I  of the SAS Examination and had passed in that part. They were also permitted to appear for Part II of the SAS  Examination.  Taking  this  fact  into  account  in conjunction with  the provisions  of paragraphs  197,198,199 and 207,  it is  clear that  the  Respondents  were  in  the opinion of  the concerned  Accountant  General  or  Head  of Office qualified  by ability,  character and  experience  to discharge adequately  and efficiently the duties required of the incumbent  of a post in the SAS as required by paragraph 178 and  that if  qualified by examination, they were likely to be  efficient in  all the duties of the SAS as prescribed by  paragraph   199.  Obviously,   they  had  been  given  a certificate   under    paragraph   207,   given   with   due responsibility and  not as  a matter of form, by the Head of Office certifying that the Respondents were regular in 34 attendance, energetic, of good moral character and business- like  habits   and  not   likely  to   be  disqualified  for appointment to  the SAS  as not  possessing the aptitude for the work  of a  holder of  a post  in  the  SAS  and  had  a reasonable prospect of passing the SAS Examination.      Under paragraph  234, the  number of  marks required to secure a  pass in each branch is 40 per cent in each subject and 45 per cent in the aggregate. Sub-paragraphs (a)(i),(ii),(iv)  and (vi)  of paragraph  282 provide as follows :           "282. (a)(i)  There will be reservation at 12-1/2%           and 5%  of the  vacancies for Scheduled Castes and           Scheduled Tribes  respectively in  promotions made           (i)  by   selection  (ii)   on  the   results   of           competitive examination  limited  to  departmental           candidates, in  or to  class  III  and  IV  posts,           grades or  services in which the element of direct           recruitment, if any, does not exceed 50%.           (ii)  Lists  of  Scheduled  Castes  and  Scheduled           Tribes Officers  should be  drawn up separately to           fill the reserved vacancies. Officers belonging to           these classes  should be  adjudged separately  and           not along  with other  officers and  if  they  are           suitable for promotion, they should be included in           the list  irrespective of  their merit as compared           to others.  Promotions against  reserved vacancies           shall,  however,  be  subject  to  the  candidates           satisfying the prescribed minimum standards.           x x x x x x x x x x           (iv)  If  candidates  from  Scheduled  Castes  and           Scheduled Tribes  obtain, on  the basis  of  their           positions in  the aforesaid  general select  list,           less vacancies  than are  reserved for  them,  the           difference should  be made  up by  such  of  those           selected candidates who are in the separate select           lists for  Scheduled Castes  and Scheduled  Tribes           respectively. 35           x x x x x x x x x x           (vi) If  owing  to  non-availability  of  suitable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 28  

         candidates belonging to Scheduled Castes/Scheduled           Tribes,  it   becomes  necessary  to  dereserve  a           reserved vacancy, the proposals for de-reservation           should be  sent to  the Ministry  of Home  Affairs           through  the   Comptroller  &   Auditor   General,           indicating whether  claims of Scheduled Castes and           Scheduled Tribes candidates eligible for promotion           in reserved  vacancies have been considered in the           manner prescribed in the preceding sub-paragraphs.           When de-reservations are agreed to by the Ministry           the reserved  vacancies  can  be  filed  by  other           candidates  subject   to  the   reservation  being           carried forward to two subsequent years."      x x x x x x x x x x The reservation  of 12-1/2 per cent and 5 per cent mentioned in paragraph 282(a)(i) has been subsequently increased to 15 per cent and 7-1/2 per cent.      The learned  Single Judge held that the Respondents had not challenged the validity of the instructions contained in the said  Office Memorandum  dated January  21,  1977,  and, therefore, the  only question  which fell  for consideration was whether those instructions had been carried out. He held that the  extent of  relaxation in the case of the Scheduled Castes and  the Scheduled Tribes candidates would have to be decided every  time an  examination was held. He referred to an unreported  decision of  the Orissa  High Court in Subodh Chandra Das  and another  v. Comptroller and Auditor General of India  and others,  O.J.C. 735  of 1970  decided by  R.N. Misra and  K.B. Panda, JJ., on September 12, 1973 in which a general relaxation  to the  extent of  three per cent in the aggregate and  two per  cent in  two  papers  given  to  the Scheduled Castes  and the  Scheduled Tribes  candidates with effect from the examination held in November 1961 was struck down and  to the fact that the Petition for Special Leave to Appeal against  the said  judgment  was  dismissed  by  this Court. The  learned Single Judge accepted the statement made in the  counter affidavit  filed on behalf of the Appellants that necessary and suitable 36 relaxation had  been made in favour of the Respondents after taking into  account the  various factors  contained in  the said  Office   Memorandum  dated   January  21,   1977.   He accordingly  dismissed   the  writ  petition  filed  by  the Respondents.      At the  hearing of  the writ appeal before the Division Bench the  Appellants before us produced the file containing the proposals  for moderation  of results and award of grace marks for  the SAS Examination and Revenue Audit Examination for Section  Officers held  in December  1980, made  by  the Joint  Director  (Exam.),  Office  of  the  Comptroller  and Auditor-General of  India, the notings made thereon by other concerned authorities  and the final order passed thereon by the Comptroller  and Auditor-General  of  India,  the  First Appellant before  us. After  looking into  the said file and analysing the  figures to  be found  therein,  the  Division Bench came  to the conclusion that the authorities concerned had not  applied their  mind to  the actual state of affairs which existed  and that  this had  resulted in  an arbitrary fixing of  the relaxation  which negatived  the benefit that lawfully  would  have  come  to  the  Scheduled  Castes  and Scheduled Tribes  candidates and that, therefore, the fixing of the  relaxation was  arbitrary and  made  in  a  perverse fashion. The  Division Bench  further held that it could not straightaway delcare  the Respondents  as having passed Part II of  the SAS  Examination held  in December 1980 as it was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 28  

for the  concerned authorities  to apply their mind, bearing in mind the criteria which the Division Bench had mentioned, and to  consider the  case of  the Respondents  by  granting relaxation.  The  Division  Bench  accordingly  allowed  the appeal and  passed the  order under  appeal before us. It is against this  judgment and  order of the Division Bench that the Appellants have approached this Court in appeal.      The first  contention urged  by learned Counsel for the Appellants was  that the  Division Bench  of the  High Court could not  issue a  writ of  mandamus  to  direct  a  public authority to exercise its discretion in a particular manner. There is  a basic  fallacy underlying  this submission  both with respect  to the  order of  the Division  Bench and  the purpose and  scope of  the writ  of mandamus. The High Court had not  issued a  writ of mandamus. A writ of mandamus. was the relief  prayed for  by the  Respondents  in  their  writ petition. What the Division Bench 37 did was  to  issue  directions  to  the  Appellants  in  the exercise of  its  jurisdiction  under  Article  226  of  the Constitution. Under  Article 226  of the Constitution, every High  Court  has  the  power  to  issue  to  any  person  or authority, including  in appropriate  cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions,  orders, or  writs including writs in the  nature of  habeas corpus, mandamus, quo warranto and certiorari, or  any of  them, for  the  enforcement  of  the Fundamental Rights conferred by Part III of the Constitution or for  any other  purpose. In  Dwarkanath, Hindu  Undivided Family v.  Income-Tax Officer,  Special Circle,  Kanpur, and another, [1965]  3 S.C.R.  536, 540  this Court  pointed out that Article 226 is designedly couched in a wide language in order not  to confine  the power conferred by it only to the power to  issue prerogative  writs as understood in England, such wide  language being used to enable the High Courts "to reach injustice  wherever it  is found"  and "to  mould  the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa & Ors., [1976] 1  S.C.R. 667, 676 this Court held that the powers of the courts  in England  as regards  the  control  which  the Judiciary has  over the Executive indicate the minimum limit to which  the courts in this country would be prepared to go in  considering   the  validity  of  orders  passed  by  the Government or its officers.      Even had  the Division  Bench issued a writ of mandamus giving the  directions which it did, if circumstances of the case justified  such directions,  the High  Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a  hundred and  thirty years ago Martin, B., in Mayor of Rochester v. Regina, [1858] E.B. & E. 1024,1032,1034 said :           "But, were there no authority upon the subject, we           should be  prepared upon  principle to  affirm the           judgment of the Court of Queen’s Bench. That Court           has power, by the prerogative writ of mandamus, to           amend all  errors which  tend to the oppression of           the subject  or other  misgovernment, and ought to           be used  when the  law has  provided  no  specific           remedy, and  justict and  good government  require           that there ought to be one for the 38           execution of the common law or the provisions of a           statute :  Comyn’s Digest,  Mandamus (A) . . . . .           .Instead of  being astute  to discover reasons for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 28  

         not applying  this great constitutional remedy for           error and  misgovernment, we  think it our duty to           be vigilant to apply it in every case to which, by           any  reasonable   construction,  it  can  be  made           applicable." The principle  enunciated in the above case was approved and followed in  The king  v. The  Revising  Barrister  for  the Borough of  Hanley,  [1912]  3  K.B.  518,  528-9,  531.  In Hochtief Gammon’s  Case this Court pointed out (at page 675) that the  powers of  the Courts in relation to the orders of the Government  or an officer of the Government who has been conferred any  power under  any  statute,  which  apparently confer  on  them  absolute  discretionary  powers,  are  not confined to  cases where  such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or  mala fide,  and in  such a  case a party would be entitled to  move the  High Court for a writ of mandamus. In Padfield and  Others v.  Minister of  Agriculture, Fisheries and Food and Others, [1968] A.C. 997 the House of Lords held that where  Parliament had  conferred a  discretion  on  the Minister of  Agriculture, Fisheries  and Food,  to appoint a committee of  investigation so  that it  could  be  used  to promote the policy and objects of the Agricultural Marketing Act, 1958,  which were  to be determined by the construction of the  Act which  was a  matter of  law for  the court  and though there  might  be  reasons  which  would  justify  the Minister in  refusing to refer a complaint to a committee of investigation, the  Minister’s discretion  was not unlimited and if it appeared that the effect of his refusal to appoint a committee  of investigation was to frustrate the policy of the Act,  the court was entitled to interfere by an order of mandamus. In  Halsbury’s Laws  of England,  Fourth  Edition, Volume I,  Paragraph 89, it is stated that the purpose of an order of  mandamus "is  to remedy  defects of  justice;  and accordingly it  will issue,  to the  end that justice may be done, in all cases where there is a specific legal right and no specific  legal remedy  for enforcing  that right; and it may issue  in cases  where, although there is an alternative legal remedy,  yet that  mode of redress is less convenient, beneficial and effectual." 39      There is  thus no  doubt that  the High Courts in India exercising their  jurisdiction under  Article 226  have  the power to issue a writ of mandamus or a writ in the nature of mandamus or  to pass  orders and  give necessary  directions where the  Government or  a public  authority has  failed to exercise or  has wrongly  exercised the discretion conferred upon it  by a  statute or a rule or a policy decision of the Government or  has exercised such discretion mala fide or on irrelevant  considerations   or  by  ignoring  the  relevant considerations and  materials or  in such  a  manner  as  to frustrate the  object of  conferring such  discretion or the policy for  implementing  which  such  discretion  has  been conferred. In all such cases and in any other fit and proper case a  High Court  can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of  mandamus or  pass orders  and give  directions to compel the  performance in a proper and lawful manner of the discretion  conferred   upon  the  Government  or  a  public authority, and  in  a  proper  case,  in  order  to  prevent injustice resulting  to the concerned parties, the Court may itself pass an order or give directions which the Government or the  public authority  should have passed or given had it properly and lawfully exercised its discretion.      It is  now necessary  to  examine  the  nature  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 28  

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 40 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 & Anr. v.  N.M. Thomas  & Ors.,  [1976] 1  S.C.R. 906 (at page 996) "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".      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 &  Ors., [1971] 3  S.C.R. 267  and Akhil  Bharatiya Soshit Karamchari Sangh (Railway)  v. Union of India and Ors., [1981] 1 S.C.C. 246.      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 41

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 28  

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 per cent, and the Scheduled Tribes at 7-1/2 per  cent, 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 number of Scheduled Castes  and Scheduled  Tribes candidates  are  not available in the qualifying examinations on the basis of the 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  as  well  as  the  general  candidates  in  that examination,  (3)   the  minimum  standard  of  fitness  for appointment to  the post, and also (iv) 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  to   the 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 42 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.      What is,  therefore, required to be done under the said Office Memorandum  dated January  21,  1977,  is  to  fix  a general qualifying  standard for all candidates appearing in departmental competitive  examinations for  promotion and in departmental confirmation  examinations as  also  to  fix  a relaxed or  lower qualifying  standard  for  the  candidates belonging to  the Scheduled  Castes and the Scheduled Tribes in respect  of each  examination, so  that if  a  sufficient number of  candidates belonging  to the Scheduled Castes and the Scheduled Tribes do not qualify according to the general standard, they  can be considered for promotion in the light of the  relaxed or lower qualifying standard where there are a number  of vacancies  in the posts falling in the reserved quota and  not enough  candidates belonging to the Scheduled

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 28  

Castes and  the Scheduled  Tribes  to  fill  such  vacancies according  to  the  general  qualifying  standard.  In  this connection, it  should be  borne in  mind  that  the  Office Memorandum dated  December 23, 1970, referred to in the said Office Memorandum dated January 21, 1977, states that it was provided by  Office Memorandum  No.  1/1/70-Est.(SCT)  dated July 25,  1970, that  in the  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 all the vacancies  reserved for  them, candidates  belonging  to these communities  may be  selected to fill up the remaining vacancies reserved  for them  provided they  are  not  found unfit for  appointment to  such post  or posts", and that it had been decided to make a similar relaxation in the case of promotion made through departmental competitive examinations and in  departmental confirmation  examinations. When  these two qualifying  standards are  fixed, the difference between the general  qualifying standard  and the  relaxed or  lower qualifying standard will form the Zone of consideration when the result  of each  examination is ascertained according to the general  qualifying standard.  The candidates who appear for departmental competitive exami- 43 nations  for   promotion   and   departmental   confirmation examinations know in advance the general qualifying standard because  such   standard  is   prescribed.  This   naturally postulates that  the relaxed  or lower  qualifying  standard should also  be fixed  in advance and made known so that the candidates  belonging   to  the  Scheduled  Castes  and  the Scheduled Tribes  will  know  before  they  appear  for  the examination to  what extent  they can  expect relaxation for themselves, provided that the other conditions prescribed by the said  Office Memorandum  dated  January  21,  1977,  are fulfilled. The  relaxed or  lower qualifying standard cannot be fixed  for all  time or for a number of years. It must of necessity be fixed for each examination because it has to be fixed taking  into account  the reserved vacancies remaining unfilled and  the overall  strength of  the cadre and of the Scheduled Castes  and the  Scheduled Tribes  in that  cadre. This would  naturally vary  from year  to year and cannot be fixed in  advance but  must necessarily be fixed before each examination and notified so that the candidates appearing in such  examination  would  know  what  the  lower  qualifying standard is. The relaxed or lower qualifying standard is the minimum up  to which  the discretion  under the  said Office Memorandum dated  January 21, 1977, is to be exercised. This should not  be  construed  to  mean  that  all  who  qualify according to the relaxed or lower qualifying standard are to be promoted.  How many  are to  be promoted must depend upon the number  of vacancies  which remain unfilled on the basis of the  general qualifying  standard. For  instance, if  the general qualifying  standard is  45 per cent and the relaxed or lower  qualifying standard  has been fixed at 35 per cent and if  on the basis of the general qualifying standard only ten reserved  vacancies remain unfilled, then ten candidates who obtain  less than  45 per  cent but have obtained 35 per cent or  more should  be selected  in order  of  merit.  If, however, there  are fifteen  reserved vacancies which remain unfilled according  to the  general qualifying  standard and only ten  candidates belonging  to the  Scheduled Castes and the Scheduled  Tribes have obtained 35 per cent or more, the standard cannot  be further  lowered below  35 per  cent  to enable the remaining five candidates also to be selected for promotion. The  said Office  Memorandum  dated  January  21,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 28  

1977,  also  makes  it  clear  that  the  relaxed  or  lower qualifying standard  is to be fixed each time an examination is to  be held,  by taking into account all relevant factors including those specifically set out in the said 44 Office Memorandum.  This it does by stating that "The extent of relaxation  should be  decided on  each occasion whenever such an examination is held".      In the  case of  the SAS Examinations, Paragraph 234 of the said  Manual fixes the general qualifying standard as 40 per cent  for each  subject and 45 per cent in the aggregate for each  part of  that Examination.  Thus, every  candidate appearing in  either of the two parts of the SAS Examination knows the  minimum percentage  of marks  he has to obtain in each subject  is also  in the  aggregate percentage of marks and it  is in  consonance with  reason and  logic  that  the candidates belonging  to the  Scheduled Castes and Scheduled Tribes should  also know  in advance  the maximum relaxation they can  expect to get on the basis of the criteria set out in the said Office Memorandum dated January 21, 1977.       It  was, however,  argued on the basis of the decision of the  Orissa High  Court referred  to above  that fixing a relaxed or  lower standard in advance was not permissible in law and that when this was done for the SAS Examination, the Orissa High  Court had  struck it  down and the Petition for Special Leave  to Appeal  against its judgment was dismissed by this  Court. The  learned Single  Judge of the High Court was impressed  by this  argument.  A  perusal  of  the  said judgment, however,  shows that  it has  no relevance  to the present  situation.   Before  the  Orissa  High  Court,  the question was  of an  Office Memorandum dated May 7, 1955, on which date  there was  no reservation  made in  the case  of posts to be filled by promotion on the basis of a qualifying examination. The  said Office  Memorandum dated May 7, 1955, expressly provided  that there  would be  no reservation for the Scheduled  Castes and  the Scheduled Tribes in regard to the vacancies  filled by  promotion but where the passing of tests or  examinations was  laid down  as a  condition,  the authority  prescribing   the  rules   for  such   tests   or examinations may  issue suitable instructions to ensure that the standard  of qualification  in respect of the members of the Scheduled  Castes and the Scheduled Tribes is not unduly high. By  a confidential  Circular dated  December 18, 1961, issued by  the  Comptroller  and  Auditor-General  of  India instructions were  given that a reduction in pass percentage should be  made to the extent of 3 per cent in the aggregate and 2 per cent in any two of the papers in each 45 part of  the SAS  Examination in  favour of  the  candidates belonging to  the Scheduled Castes and the Scheduled Tribes. It was  the case  of both the parties before the Orissa High Court that the said Office Memorandum dated May 7, 1955, did not create  a reservation  in favour  of the  members of the Scheduled Castes  and the  Scheduled  Tribes  under  Article 16(4). Further, the said confidential Circular made merely a general relaxation  without  prescribing  any  guideline  or criterion for  giving the relaxation. The Orissa High Court, therefore,  held   that  the   concession  granted   by  the insructions contained  in  the  said  confidential  Circular being unguided  did not  pass the  objective test  and  was, therefore, bad  in law.  The High  Court further pointed out that there  was even  no material before it to show that the members of  the Scheduled  Castes and  the Scheduled  Tribes were already  not in  adequate number  in employment  in the establishment of  the Accountant  General. The  said  Office

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 28  

Memorandum dated  January  21,  1977,  stands  on  a  wholly different footing  from the Office Memorandum referred to in the aforesaid  judgment of the Orissa High Court. It neither provides a  general relaxation  for all  examinations nor is the relaxation  to be made under it unguided or not based on any principle.  On the  contrary, it expressly provides that the extent of relaxation should "be decided on each occasion whenever such an examination is held taking into account all relevant  factors   including  those  specifically  set  out therein.’      It appears  that the  other Departments of the Union of India have  implemented the  Office Memorandum dated January 21, 1977,  in keeping  with the  interpretation given above. For instance,  the Circular  No. 63/1/77-SPB I dated January 31, 1978,  issued by  the Office  of the Director General of Posts and  Telegraphs, after  referring to  the said  Office Memorandum dated January 21, 1977, states as follows :           "The matter has been examined in detail and it has           been decided  that a  lower standard for SC and ST           candidates in  all the groups, where the promotion           is on the basis of seniority-cum-fitness and there           is qualifying examination to determine the fitness           of the  candidates, to the extent as prescribed in           this Office  letter No.  63/1/71-SPBI  dated  17th           July 1971 (copy enclosed) be observed subject to 46           the instructions contained in the last sentence of           para 1  of Department  of Personnel  and  A.R.O.M.           dated 21.1.77  referred to  above. It  may also be           stated that  the relaxation  of standard should be           the  minimum   limit  upto   which  the  competent           authorities could  go down  in order  to fill  the           vacancies  reserved   for  ST   and  SC   in  such           qualifying examination." It appears  that a doubt was raised as to what should be the relaxed or  lower standard  in the  case of  the  candidates belonging to  the Scheduled  Castes and the Scheduled Tribes in qualifying  examination for promotion to a higher post on the basis  of seniority-cum-fitness.  Clarifications in that behalf were  issued by  a Circular  No. 202/17/78/STN/SPB  I dated  December  19,  1978.  These  clarifications  were  as follows :           "a) No  relaxation is  to be  made for  SC and  ST           candidates  if  sufficient  number  of  candidates           belonging to  SC/ST qualify  to take  up the posts           reserved for  them as  per the standard prescribed           for  other   community  candidates  (40%  in  each           individual paper and 45% in aggregate for O.C.           candidates).           b) Relaxation  is to  be made if sufficient number           of  ST  and  SC  candidates  do  not  qualify  the           standard   prescribed    for    other    community           candidates.           The relaxation may be as follows :-           i) Maximum  lowering of  standard upto  33% in the           individual papers and 38% in the aggregate.           ii)  If,   however,  the   number  of  SC  and  ST           candidates equal to the number of vacancies become           available  at   a  high   standard,  say   35%  in           individual papers  and 40%  in the  aggregate,  no           further lowering is to be resorted to.           iii)  If  the  number  of  SC  and  ST  candidates           qualifying at 33% in each individual paper and 38%           in the aggregate is not equal to the number of 47

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 28  

         vacancies reserved  for them,  no further lowering           is to  be resorted  to to ensure that number of SC           and ST  candidates  qualifying  is  equal  to  the           number of  vacancies reserved  for them.  In other           words in  no case  standard is to be lowered below           33% in  each  individual  paper  and  38%  in  the           aggregate." B      The Railway Board’s Letter No. E/SCT/70CM 15/6(B) dated July 29, 1970, is also instructive. It states :           "Sub  :   Filling  up   of   promotion   vacancies           Relaxation  of   qualifying  marks  for  Scheduled           Castes and Scheduled Tribes.                           * * * *           In their  letter No.  E(SCT)68CM15/10  dated  27th           August  1968  the  Board  had  decided  to  reduce           minimum qualifying  marks  both  in  "professional           ability"  and  "aggregate"  from  60  percent  for           others to  50 percent  for  Scheduled  Castes  and           Scheduled  Tribes  in  respect  of  promotions  to           selection posts  in class  III where safety aspect           is  not  involved.  A  similar  concession  of  10           percent marks  was granted  to reserved  community           candidates in  competitive examinations limited to           departmental     candidates     in     competitive           examinations to  fill up  10 per cent of the posts           of Clerks  scale Rs.130-300  in Board’s letter No.           E(SCT) 68CM15/10 dated 10th January 1970.           In respect  of promotions  made on  seniority-cum-           suitability, the  extant instructions are that the           cases of  Scheduled Castes  and  Scheduled  Tribes           should be  judged sympathetically without applying           too rigid  a standard.  In order to give practical           shape   to    this   provision   of   "sympathetic           consideration", the  Board have now decided that a           concession of  10 per cent marks may be granted to           Scheduled  Castes  and  Scheduled  Tribes  in  the           suitability  tests   written  or   oral,  in   the           categories where safety aspect is not involved." 48      Learned  Counsel  for  the  Appellants  relied  upon  a decision of  this Court in V.V. Iyer v. Jasjit Singh, A.I.R. 1973  S.C.   194  in  which  it  was  held  that  where  two alternative interpretations are possible with respect to the scope and  applicability of  an Item  in Schedule  I to  the Imports (Control)  Order, 1955,  made under  section 3(1) of the Imports and Exports (Control) Act, 1947, and the Customs authorities have  adopted a reasonable view relating thereto which is  favourable to  the revenue,  such finding  of  the authorities cannot  be interfered  with by  the  High  Court under Article  226 of  the Constitution  even though another view which  can be  adopted is  in favour of the subject. In that case,  two alter  native interpretations  were possible with respect  to an  item in  the Schedule  to  the  Imports (Control) Order  and the  Department had  preferred  one  of them. The  interpretation placed  by the Department was held by this Court not to be unreasonable. The ratio of the above decision applies  where the Court has before it two possible alternative interpretations  and the concerned Department of the Government  has accepted  one of  them. Here,  what  has happened is  that two  Departments of  the  Government  have taken one  view and  the Department  of the  Comptroller and Auditor-General of  India has taken a contrary view which is neither warranted  nor borne ut by a reading of the relevant Office Memoranda.      What relevance  the above  decision has to the facts of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 28  

the present  case is  also beyond  us. It is not possible to equate the  members  of  the  Scheduled  Castes  with  goods imported from  abroad. They  are human beings like all other human beings, the only difference being that for centuries a large number  of their  countrymen have  not treated them as human beings  but as  sub-human creatures beyond the pale of society and  even of  humanity. William  Blake in  his  poem "Auguries of Innocence" said:           "Every Night and every Morn           Some to Misery are Born.           Every Morn and every Night           Some are Born to sweet delight.           Some are Born to sweet delight,           Some are Born to Endless Night." The members of the Scheduled Castes were the children of the 49 "Endless Night".  Their birth-right  was the badge of shame; their inheritance, the overflowing cup of humiliation; their constant and  closest companion,  degradation; the  bride of their marriage,  lifelong poverty;  and their only fault, to be born  to their  parents. They were denied education. They were denied  jobs except  the lowest menial tasks. They were denied contact  with persons  not belonging  to their castes for their  touch polluted  and even  their  shadow  defiled, though the  touch and the shadow of the animals did not, for men rode on horses and elephants and on mules and camels and milked cows,  goats and  buffaloes. They were denied worship and the  doors of  the temples  were shut in their faces for their very  presence was  supposed to  offend the  gods. All these  wrongs  were  done  to  them  by  those  who  fancied themselves their superiors. As the anonymous satirist said :           "We are the precious chosen few:           Let all the rest be damned.           There’s only room for one or two:           We can’t have Heaven crammed." The treatment  meted out  to the  members of  the  Scheduled Castes throughout  the ages  was an affront to Human Rights. It was  in a spirit of atonement for the wrongs done to them and  to  make  restitution  for  the  injury  and  injustice inflicted upon  them that  the framers  of the  Constitution enacted Article  16(4) placing  them in  a separate class in matters relating  to employment or appointment to any office under the State, formulated the Directive Principle embodied in Article  46,  and  proclaimed  the  great  Constitutional mandate set out in Article 335. F      It is equally not possible to equate the members of the Scheduled Tribes  with goods  imported from abroad. They too are  human   beings  like   other  human  beings  with  this difference that  for centuries they have preferred to follow the primitive  ways of  their forefathers. Remote and almost inaccessible in  their hilly  vastness and secluded forests, civilization has  passed  them  by.  The  benefits  of  high sophisticated technology  is  as  unknown  to  them  as  its hazards OF  noxious fumes  and poisonous  gases. Simple  and naive, they  have become a rich mine for exploitation by the human products of civilization. Their lands have been stolen from them by skulduggery and they have 50 been tricked  into selling  the products  of their craft and skill  for  a  song.  It  was  to  protect  them  from  such exploitation and  to  enable  them  to  participate  in  the mainstream of  the nation’s  life that  they have been given special treatment  by Articles  16(4), 46  and  335  of  the Constitution.      The interpretation  to be  placed upon  the said Office

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 28  

Memorandum dated  January 21,  1977, must,  therefore, be in keeping with  the above  provisions of  the Constitution and not as  if the  said Office  Memorandum were  an entry  in a Tariff Schedule  or a  notification levying import duty upon goods.      What remains  now to be examined is the manner in which the Comptroller  and Auditor-General  of India has exercised his  discretion  under  the  said  Office  Memorandum  dated January 21,  1977. As  mentioned earlier, the learned Single Judge of  the High  Court accepted the statement made by the Second Appellant  a in his counter affidavit filed on behalf of the  Appellants that  necessary and  suitable relaxations had been made in favour of the Respondents after taking into account the  various factors  contained in  the said  Office Memorandum dated  January 21, 1977. After the Division Bench of the  High Court  had  perused  the  file  containing  the proposals for moderation of results and award of grace marks in the SAS Examination and the Revenue and Audit Examination for Section  Officers held  in December 1980, this statement held good  no longer  and accordingly  it was  sought to  be explained away  in paragraph  11 of the Petition for Special Leave to Appeal as follows :           "Although the  office  note  did  not  discuss  in           detail all  the relevant  factors, it is incorrect           to say  that the authorities had not applied their           mind to  the actual state of affairs that existed,           resulting in  arbitrary fixing  of relaxation. The           extent of relaxation is to be decided by the first           petitioner (that  is, the Comptroller and Auditor-           General of  India) at  his discretion,  keeping in           view all relevant factors."       Like  the counter affidavit filed in the writ petition the affidavit  affirming the  Petition for  Special Leave to Appeal was  also not  made by  the Comptroller  and Auditor- General of 51 India but  by the  Joint  Director  in  the  Office  of  the Comptroller and  Auditor-General of  India. According to the said affidavit,  what was stated in the Petition for Special Leave to  Appeal was  "stated on  the basis  of  information derived from  the record of the case". The information to be derived from  the record  of the case clearly shows that the relevant factors set out in the said Office Memorandum dated January 21,  1977, were  not and  could not be considered or kept in  mind and  the so-called  relaxation  given  to  the members of  the Scheduled Castes and Scheduled Tribes made a mockery of  the said  Office  Memorandum.  The  office  file referred to  in paragraph  11 of  the Petition  for  Special Leave to  Appeal is  the file  containing the said proposals for moderation of results and award of grace marks. The said paragraph 11  is an  admission that  these proposals did not set  out   all  the  relevant  particulars  upon  which  the Comptroller and  Auditor General  of  India  could  properly exercise his  discretion or  be  made  acquainted  with  the material data  which would  enable him  to take into account all the relevant factors including the four specifically set out in  the said  Office Memorandum  dated January 21, 1977. The heading  of the  said proposals  itself show that it was concerned only  with awarding  of grace  marks and  not with relaxation of  the qualifying  standard in  the case  of the candidates  belonging   to  the  Scheduled  Castes  and  the Scheduled Tribes.  Further, according  to the said paragraph 11 the  authorities had  applied their  mind to  the  actual state of affairs that existed. When what the actual state of affairs that  existed is  ascertained, the  above  statement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 28  

turns out  to be  as divorced  from reality  as  the  Second Appellant’s statement  in his  counter affidavit referred to above earlier.      It will  be useful  to  refer  first  to  the  relevant paragraphs of  the said  proposals for moderation of results and award  of grace marks. Paragraph 4 dealt with Part II of the SAS Examination and was as follows . "4.(a) Part II : 809 candidates appeared from different           offices out  of whom 361 have passed showing 44.6%           pass which  does not  compare favourably well with           the 28.1%  of February  1977,  41.5%  of  December           1977, 55.51 of December 1978 and 34.4% of December           1979. The figures for the previous years are after 52           moderation. The  percentages of  pass  before  and           after moderation  are shown  in Table No. II-B. As           was done  in the  case of Part I candidates it is,           therefore, recommended  that the border line cases           where the  candidates  fail  by  5  marks  in  the           aggregate inclusive  of 5  marks in  one  or  more           subjects may  be considered  for  award  of  grace           marks. This  will enable  30  candidates  more  to           clear the  examination in  Part II; of which three           will be  from the  SC/ST category  and the balance           from the  general candidates.  The effect  of this           proposal will  be the  percentage of  pass of 44.6           will go upto 48.33%.           (b) In  the same branch out of 72 SC/ST candidates           who appeared  for the  examination 24  have passed           recording 33.3%. As was recommended in the case of           Part I  candidates, it  is  recommended  that  the           grace marks  in respect of SC/ST candidates may be           given 8  in the  aggregate inclusive of 5 marks in           one  or   more  subjects.   This  will  benefit  5           candidates from  this category,  of which  3  have           already  been   covered  in   the  general   grace           recommended for  the  general  candidates  in  the           previous sub-para.  The award  of this  grace mark           will increase the percentage of pass in respect of           SC/ST candidates from 33.3 to 40.29."      It is  difficult to  understand how  the percentage  of 44.6 who  passed out of the candidates who appeared for Part II of  the SAS  Examination held  in December  1980 did  not compare favourably  well with  the  28.1  per  cent  of  the February 1977  and  41.5  per  cent  of  the  December  1977 examination of  Part II  of the  SAS Examination. No attempt has been  made in  the said proposals to focus the attention of the Comptroller and Auditor-General of India on the total number of vacancies reserved and the overall strength of the cadre and  of the  Scheduled Castes and the Scheduled Tribes in that  cadre. It  is left  to be  gathered, if  one is  so minded, from  the number  of  tables  annexed  to  the  said proposals. The admitted position, however, is that a general relaxation of five grace marks in the aggregate inclusive of five marks in one or more 53 subjects was  given to all the candidates and that so far as the candidates  belonging to  the Scheduled  Castes and  the Scheduled Tribes were concerned, they were given eight grace marks in  the aggregate inclusive of five grace marks in one or more subjects. This resulted in five candidates belonging to the  Scheduled Castes  and the  Scheduled Tribes passing, out of which three had already passed by reason of the grace marks allotted  to all  the candidates.  Thus, the effect of this relaxation  was that  only two  candidates belonging to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 28  

the Scheduled  Castes and  the Scheduled Tribes were enabled to pass  the examination.  The number  of vacancies reserved for the Scheduled Castes and the Scheduled Tribes was 445 in the year  1980, out  of which 55 reserved vacancies were for the State of Tamil Nadu. Only 72 candidates belonging to the Scheduled Castes  and the Scheduled Tribes appeared for Part 11 SAS  Examination held  in December  1980. Twenty-four  of them had  passed  without  any  relaxation  and  after  such relaxation was  made altogether  29 passed. As seen earlier, out of  these additional  five candidates  who passed, three had passed  by reason  of the grace marks allotted generally to all  candidates and  only two by reason of the additional grace marks  given to the Scheduled Castes and the Scheduled Tribes candidates.  So far  as the  State of  Tamil Nadu was concerned, not  a single  candidate passed. As the aggregate number of  marks was 500 and eight grace marks were given to the candidates  belonging to  the Scheduled  Castes and  the Scheduled Tribes,  the percentage  of  relaxation  comes  to about 1.3/5 per cent. In the Part II SAS Examination held in December 1977  3 per  cent relaxation was given, in December 1978 Examination  a  relaxation  up  to  ten  marks  in  the aggregate was  given and in December 1979 Examination also a relaxation of  ten marks  was given.  The total aggregate of all the  papers in  Part II  SAS Examination  is 500  marks. Therefore, the minimum aggregate of 45 per cent would be 225 marks. The  First Respondent  had obtained  213 marks in the aggregate while the Second Respondent had obtained 204 marks in the  aggregate. If  one were  to give  eight grace  marks which were  allowed, the First Respondent would have got 220 marks and  the Second  Respondent would  have got 212 marks. Had the  extent of  relaxation been  2.6 per cent that is 13 marks, the  First Respondent  would have  passed and  had it been 4.2  per cent, that is, 21 marks, the Second Respondent would have also passed. The percentage of five general grace marks was  only I per cent. The additional three grace marks given to  the Scheduled  Castes  and  the  Scheduled  Tribes candidates, 54 taking into  account the extent of general relaxation, works out to  1.3/5 per cent only. When one compares what is being done in  the Posts  and Telegraphs  and in the Railways with what was  done in  the present  case, it  is clear  that the relaxation which  was given  was  purely  an  illusory  one, paying only  lip-service to the said Office Memorandum dated January 21, 1977.      It was,  however, submitted on behalf of the Appellants that the authorities cannot give relaxation in such a manner to impair  the efficiency  of the  service and  that had the relaxation been  given to  a greater  extent, it  would have resulted in  impairing the  maintenance of efficiency of the SAS. It  was  further  urged  that  under  the  said  Office Memorandum dated  January 21, 1977, relaxation is to be made provided the  candidates belonging  to the  Scheduled Castes and the  Scheduled Tribes are not found unfit for promotion. This submission  would require  to be  accepted had  it  any relevance to the facts of the present case. However much one may desire to better the prospects and promote the interests of the  members of  the Scheduled  Castes and  the Scheduled Tribes,  no   sane-thinking  person  would  want  to  do  it irrespective of  the cosiderations  of efficiency, or at the cost of the proper functioning of the administration and the governmental machinery. Public good and public interest both require that  the administration  of the  Government and the functioning of  its services  should be carried out properly and efficiently.  Article 335  of  the  Constitution,  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 28  

provides for  the claims  of the  members of  the  Scheduled Castes  and   the  Scheduled   Tribes  to   be  taken   into consideration in  the making of appointments to services and posts in  connection with  the affairs  of the Union or of a State,  itself   requires   that   this   should   be   done "consistently  with   the  maintenance   of  efficiency   of administration". The question of impairment of efficiency of the SAS  service does not, however, arise here. The relevant paragraphs of  the said Manual have already been referred to but it  will not be out of place in the context of the above submission to  refer to  them again. The relevant paragraphs are 197,  198,  199  and  207.  Both  the  Respondents  were permitted to  appear in  Part I  of the  SAS Examination and after passing  such examination were permitted to appear for Part II  of the  SAS Examination.  Under paragraph 197, they required permission  of the  Accountant General  or Head  of Office to do so. Under paragraph 198, the selection of the 55 candidates was  primarily the  responsibility of the Head of the Office.  Under paragraph 199, the essential condition of such selection  was that  the candidates  selected would, if qualified by  examination, be  likely to be efficient in all the duties  of the  SAS. Under  paragraph 207, a certificate had to  be given  to each  candidate that  he was regular in attendance, energetic, of good moral character and business- like habits  and was  not  likely  to  be  disqualified  for appointment to  the SAS  as not  possessing the aptitude for the work  of a holder of a post in the SAS and that he had a reasonable  prospect   of  passing   the  examination.  This certificate is  required by  paragraph 207 to be given "with due responsibility  and not  as a  matter  of  form".  Thus, unless some  event had  occurred between  the  date  of  the giving of  the certificate  and  the  final  declaration  of results which  would disqualify a candidate from discharging the duties  of a  post in  the SAS,  he is  considered to be eligible for  promotion to  the SAS,  subject  only  to  the condition that  he passes  the examination.  The said Office Memorandum dated  January 21, 1977, is not intended only for the Department  of the  Comptroller and  Auditor-General  of India. It  also applies  to all  Ministries and Departments, and it  has to  be applied  in  the  context  OF  the  rules governing each  Department. The  condition contained  in the said Office  Memorandum dated  January 21,  1977,  that  the candidates  belonging   to  the  Scheduled  Castes  and  the Scheduled Tribes  should not be found unfit for promotion is a  general   condition  applying   to  all   Ministries  and Departments. In  the case  of candidates  selected to appear for the  SAS Examination,  this condition  has already  been satisfied by  reason of their selection as candidates. If it was considered  that the  Respondents would  not be  able to discharge the  duties of  the holder  of a  post in the SAS, they would  not have  been given  the  relevant  certificate required under  paragraph 207  of the said Manual. They were given such certificates and it is not open to the Appellants to take  a stand  contrary to what the certificates given to the Respondents state.      The above  discussion shows  that the  entire procedure followed in the case of the SAS Examination held in December 1980 was completely contrary to what was required to be done under the  said Office Memorandum dated January 21, 1977. No relaxed or  lower standard  for the  candidates belonging to the 56 Scheduled Castes  and the  Scheduled  Tribes  was  fixed  in advance of  the examination. As it was not fixed in advance,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 28  

the question of it being notified to the candidates does not arise. The  relaxation by way of grace marks given after the results  were  ascertained  on  the  basis  of  the  general qualifying standard  was without  proper application of mind and did  not take  into consideration  the relevant factors, and was, therefore, contrary to what was required to be done by the  said Office  Memorandum dated  January 21, 1977, and the other  Office Memoranda  referred  to  earlier  and  was violative of Article 335 of the Constitution and accordingly must be held to be bad in law.      In the  result, this  Appeal must  fail.  The  Division Bench of  the Madras  High  Court  has,  however,  contented itself with issuing directions to the Appellants to consider the case of the Respondents and grant suitable relaxation to them within  two months  from the date of its judgment as to whether they had qualified in Part ll Examination of the SAS held in  December 1980 and while granting such relaxation to bear in  mind the  observations made in its judgment as also the criteria  envisaged in  the said Office Memorandum dated January 21,  1977. The Division Bench did so because it felt that it  could not  straight away declare the Respondents as having passed  the said  examination. The  judgment  of  the Division Bench of the Madras High Court was given on January 12, 1984. More than  two years  have elapsed  since then. In the meantime  the Appellants  have approached  this Court by obtaining Special  Leave to Appeal and have obtained interim stay of  the execution  of the  order of the Division Bench. This interim  stay has now obviously come to an end. Further examinations, however, must have been held in the mean time. In view  of the  order of  interim stay, they must have been held on the same basis as the December 1980 Examination. The Respondents had  appeared in  Part II of the SAS Examination in December 1980 and, therefore, to give the same or similar directions as were given by the Division Bench of the Madras High Court  would result  in further delay and would perhaps result in  a fresh  writ petition.  Further, such directions cannot be given only with respect to the Respondents because there may  be other  candidates belonging  to the  Scheduled Castes and  the Scheduled  Tribes who are similarly situated nor can  such directions  be confined merely to the December 1980 examination. They also 57 should not  jeopardize those  who have already been promoted for none  of  them  are  parties  to  this  Appeal.  It  is, therefore, necessary that in order to do complete justice to all  concerned   as  required   by  Article   142   of   the Constitution,  the   matter  should   not  be  left  to  the Comptroller and  Auditor-General of  India but all requisite directions should be given by this Court.      For the reasons given above, we dismiss this Appeal and confirm the  judgment of  the Division  Bench of  the Madras High Court in Writ Appeal No. 409 of 1982, but we substitute the following  Order for  the order passed by it in the said Writ Appeal :           For  Part   II  examination   of  the  Subordinate           Accounts Service  Examination (Ordinary)  and  all           subsequent Part II examinations of the Subordinate           Accounts  Service   Examination  (Ordinary)   held           thereafter until  today there will be a relaxation           of 25 marks in all for candidates belonging to the           Scheduled Castes  and the  Scheduled Tribes,  that           is, this  relaxation will  cover not only the pass           marks to  be given  in the  aggregate but  will be           inclusive of  the pass  marks to  be given in each           individual paper so that the total number of marks

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 28  

         covered by such relaxation will not exceed 25. The           Respondents and  all other candidates belonging to           the Scheduled  Castes and the Scheduled Tribes who           will pass the said examinations as a result of the           above relaxation  are declared to have passed such           examinations and  to have-  been promoted  to  the           Subordinate  Accounts  Service  in  the  vacancies           reserved for  the members  of the Scheduled Castes           and the Scheduled Tribes with effect from the date           when the  final declaration of the results of each           such examination  was made  and will  be paid such           salary and shall be entitled to all other benefits           on the  basis of  such promotion  with effect from           the said  date. So  far as seniority is concerned,           however, they  will not  rank above those who have           already passed  and have been promoted but will be           placed in  the seniority  list after all those who           have passed in Part II of the Subordinate Accounts           to Service  Examination (Ordinary)  held  so  far,           ranking inter  se according  to the rules relating           to 58           seniority set  out in paragraph 184 of Volume I of           the Comptroller  and Auditor  General’s Manual  of           Standing Orders (Administrative).           In respect  of all  subsequent examinations  to be           held for  the Subordinate  Accounts  Service,  the           Comptroller and  Auditor-General of India will fix           a relaxed  or lower standard in advance and notify           it to  the candidates  who are going to appear for           such examination. In fixing such standard, he will           bear  in   mind  the  observations  made  in  this           Judgment and what has been held therein.      For the  purpose of  this Appeal  the Respondents  have been compelled  to come  to New  Delhi to appear before this Court time  and again  and also  had to spend money on their board and  lodging. The  Appellants will,  therefore, pay to each of the Respondents a sum of Rs.1,500 by way of costs of this Appeal.      As the Respondents are not represented by any Advocate, the Registry  will communicate this order to the Respondents without claiming the cost thereof from the Respondents.      Before parting  with this  Appeal, the  Court just once again express its deep sense of appreciation of the valuable assistance rendered  to it  by Mr. V.A. Bobde, Advocate, who appeared as  amicus curiae,  and without whose assistance it perhaps may  not have  been  possible  to  reach  the  above conclusion. P.S.S.                                     Appeal dismissed. 59