TMI Blog1986 (4) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duled 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, prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 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 Aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee 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.... 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 business-like habits, are not likely to be disqualified for appointment to the Subordinate Accounts S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective 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. x x x x x x x x x x (vi) If owing to non-availability of suitable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 execution of the common law or the provisions of a statute : Comyn's Digest, Mandamus (A) . . . . . .Instead of being astute to discover reasons for 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 Padfiel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent 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 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 confirma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were the children of the 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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