This article is written by Gautam Badlani. It provides a detailed analysis of the landmark judgement in the case of Rohtas Bhankhar v. Union of India. In this case, the Supreme Court dealt with the constitutional validity of reservations in promotions. The Court held that lower qualifying may be provided for the evaluation of reserved candidates for promotions. This article provides a critical analysis of the judgement and gives a comprehensive overview of the precedents relied upon by the court. 

Introduction 

The Constitution (Seventy-Seventh Amendment) Act, 1995 had inserted Article 16(4A) in the Indian Constitution. This Article empowers the state to make reservations in favour of the Scheduled Castes and Scheduled Tribes in matters of promotion in the services under the state. An important legal question that arises while interpreting the effect of Article 16(4A) is whether the state can prescribe a distinct qualifying criterion for the promotion of Scheduled Caste and Scheduled Tribe members. This question was answered by the Supreme Court in the case of Rohtas Bhankhar v. Union of India (2014)

Facts of Rohtas Bhankhar vs. Union of India (2014)

In this case, the applicants had challenged the constitutionality of the order, withdrawing the instructions providing for lower qualifying marks for Scheduled Caste (SC)/Scheduled Tribe (ST) candidates in the qualifying Stenographers (Grade B/Grade – I) Limited Departmental Competitive Examinations (LDCE Examinations). The authorities had earlier issued instructions which provided instructions which laid down lower qualifying criterion for promotion of the SC/ST candidates. However, subsequently those instructions were withdrawn.

The LCDE 1996 elections were held while the instructions providing for lower evaluation criterion for SC/ST candidates were in force. However, by the time the results of the elections were delayed, the instructions were withdrawn and the applicants were denied the benefit of the lower qualifying criterion.  

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The applicants prayed that they should be promoted on the basis of the instructions and the order withdrawing the instructions should be set aside. 

Issues raised 

  • Whether the order withdrawing the evaluation instructions was unconstitutional?
  • Whether lower qualifying marks can be prescribed for the promotion of the SC/ST candidates?

Arguments of the parties 

Applicants 

The applicants relied on the Supreme Court judgement in Ram Bhagat Singh v. State of Haryana (1990), in which the Supreme Court held that lower qualifying marks may be prescribed for SC/ST candidates if it does not affect the efficiency of the administration. 

Secondly, the applicants relied on the case of Engineer Public Health v. Kuldeep Singh (1997), in which it was held that Article 16(4A), which has been inserted by the 77th Constitutional Amendment, envisages that the claims of the Scheduled Castes and Scheduled Tribes should be taken into consideration while making appointments in promotions. 

The applicants submitted that the order withdrawing the lower qualifying criterion instructions was issued in 1997. At any rate, the order should not have any effect on the examinations conducted in 1996. 

In Post Graduates Institute of Medical Education v. Narasimhan (1997), the Court held that if a SC/ST candidate secures appointment to a post by virtue of his own merit in the general category, then he should be treated as a general candidate and not as a reserved candidate. If, after appointment, the SC/ST candidates are selected for promotion on the basis of a general standard of evaluation, then it will result in them being treated as general candidates, and the roster points reserved for promotion will not serve their purpose. 

In Sabharwal v. State of Punjab (1995), the Supreme Court had to consider the constitutional validity of reservation in promotions as per the roster system. The Court held that when a percentage of seats in a particular cadre are reserved and the roster indicates the reserved points, then the reserved posts have to be filled from among the members of the reserved category. The general category candidates cannot compete for the reserved posts. However, reserved candidates can be appointed to non-reserved posts if they fulfill the relevant criteria. 

Respondents 

The respondents contended the order withdrawing the instructions was made in accordance with the judgement of the Supreme Court in the case of Vinod Kumar v. Union of India (1996). In this case, the Supreme Court  held that lower qualifying marks and an easier evaluation criterion for SC/ST candidates in the matter of promotion are not valid. 

The respondents submitted that the judgement of Indra Sawhney v. Union of India (1992) is the law of the land and this judgement overruled all rules and instructions contrary to its directions. The judgement of Indra Sawhney was delivered in 1992 and the results of the 1996 LDCE examinations were declared in 1998. The judgement of Indra Sawhney became operational from the day of its pronouncement and thus, the 1996 LDCE Examinations had to conform with the directions laid down in the judgement.

Important laws dealt with in Rohtas Bhankhar vs. Union of India (2014)

The case primarily dealt with the scope and effect of Articles 16 and 335 of the Indian Constitution. Article 16 provides that all citizens should be provided equal opportunity in matters of public employment. 

In the Indra Sawhney case, the Supreme Court had held that reservations cannot be made in promotions. In the aftermath, the Parliament enacted the 77th Amendment Act which inserted Article 16(4) in the Constitution. Article 16(4) provides that the state may make provisions for reservation in promotions in public services in favour of SC/ST candidates. 

Article 335 provides that claims of SC/ST candidates should be considered while making appointments to public services. Article 335 was amended in the year 2000 by which a proviso was added to the Article 335 which enabled the government to reduce the requirements for the promotions of SC/ST candidates. 

Decision of the Central Administrative Tribunal 

The Central Administrative Tribunal (CAT), Delhi, held that Article 16(4A) does not provide that there should be relaxed criteria for the promotion of reserved candidates. Article 16(4A) provides that if suitable candidates are not available in any particular year for promotion, then the reserved points should be carried forward to the next year. Once the candidates have been appointed to a post through a reservation with relaxed standards, there is no justification for providing the benefit of a reservation again in the matter of promotion.

The CAT observed that in the Ram Bhagat Singh case, which was relied upon by the applicants, the petitioners had approached the court on the ground that the requirement of 55% marks in aggregate constituted a high and unfair standard for recruitment. However, that case related to direct recruitment and not promotions. Moreover, it was decided in 1990 and the court did not have the benefit of the decision of Indra Sawhney, which was decided in 1992. Thus, the Tribunal concluded that Ram Bhagat Singh could not be relied upon while deciding the present case. 

Further, the CAT held that the Kuldeep Singh case dealt with the issue of carrying forward the vacancies where reserved candidates are not available and that case did not deal with the point of lower qualifying marks for reserved candidates.

In the present case, when the application for the 1996 LDCE Examinations was written, Rule 9 provided for a lower qualifying criterion for the reserved candidates. However, this Rule ceased to exist after the pronouncement of the judgement of Indra Sawhney.

Subsequently, a Special Leave Petition was filed before the Supreme Court challenging the decision of the CAT. 

Judgement in Rohtas Bhankhar vs. Union of India (2014)

Issue-wise judgement by the Supreme Court

Constitutionality of order withdrawing evaluation instructions 

The Supreme Court held that the order withdrawing the instructions providing for lower evaluations criterion was illegal. The Court held that the state can make reservations in promotions and once such reservations have been made, the results should be made in compliance with the reservation provisions. 

Whether lower qualifying criterion can be prescribed for SC/ST candidates

The Supreme Court held that under Article 16(4), the State has the power to reserve promotional posts in favour of SC/ST candidates. However, such reservation provisions should be based on quantifiable data. 

Rationale behind this judgement 

Article 16(4A) empowers the state to make reservations for promotions in the favour of SC/ST candidates. The expression ‘reservation’ includes reservation simpliciter as well as relaxation in age, giving multiple chances to clear the tests, enhancing preparation time and training facilities, etc. 

Article 335 of the Indian Constitution provides that the claims of the SC/ST candidates should be taken into consideration while making appointments to the services and posts under the Central and state governments, provided that such consideration does not adversely affect the efficiency of the administration. By virtue of the Constitution (Eighty Second Amendment) Act, 2000, a proviso was added to Article 335. The proviso provided that the state may make provisions for providing relaxation in the qualifying criterion or for lowering the evaluation standards in favour of the SC/ST candidates for matters related to promotions in government services. 

The Court held that the Constitution (Seventy Seventh Amendment) Act,1995 and the Constitution (Eighty Second Amendment) Act 2000 are constitutionally valid. 

The Supreme Court held that the CAT had erred in relying upon the judgement of the Vinod Kumar case, as it was not decided keeping in view the provisions of Article 16(4A). Thus, the civil appeals were allowed by the Apex Court and the order withdrawing the lower qualifying marks for reserved candidates was held to be illegal and was set aside. The Supreme Court directed that the results of the LDCE examinations should be modified to provide the reservation and all other consequential benefits to the appellants. 

Precedents referred

In the Vinod Kumar case, the Supreme Court, while relying on the Indra Sawhney judgement,  concluded that the lower qualifying criterion for promotion of reserved candidates is illegal. However, the case did not consider that the Constitution (Seventy Seventh Amendment) Act had been passed after the Indra Sawhney judgement and this Amendment introduced Article 16(4-A) to the Constitution. Since the judgement of Vinod Kumar failed to consider the effect of the Constitution (Seventy Seventh Amendment) Act  it is per incuriam. 

In Haridas Parsedia v. Urmila Shakya (1999), it was held that for the departmental promotion examination held for the SC/ST candidates, a relation of 10% in qualifying marks can be made. 

The Constitutional validity of Article 16 (4A) was discussed in the case of M. Nagaraj v. Union of India (2006). In this case, the Court, while upholding the constitutionality of Article 16(4A), held that Article 16(4A) does not affect the structure of Article 16. It does not obliterate the ceiling limit of 50% for reservation, the concept of creamy layer and sub-classification of SC and SC candidates on the one hand and Other Backward Castes (OBC) candidates on the other hand. 

Critical analysis of Rohtas Bhankhar vs. Union of India (2014)

In the Indra Sawhney case, the Supreme Court had to consider whether the expression ‘reservation’ as used in Article 16 covered only reservation simpliciter or also extended to special provisions of preference, concessions and exemptions. The Court had held that Article 16(4) includes reservation simpliciter as well as ancillary and supplementary provisions. It includes preferences, concessions and exemptions within its ambit. 

In State of Kerala v. N.V. Thomas (1975), the members of the Lower Division Clerk had to pass some examinations in order to be promoted to Upper Division Clerk. However, many members of the reserved category could not clear the examination and thus, they were not getting promoted. The government gave them a temporary exemption. Such a provision of exemption or special treatment would also fall within the ambit of ‘reservation’.

In the M. Nagaraj case, the Court held that Article 16 is an enabling provision and does not impose a mandatory duty on the state to make reservations in matters of promotion for SC/ST candidates. However, the state may make reservations in favour of SC/ST candidates if it is of the opinion that they are not adequately represented in government services. The state will have to collect quantifiable data to determine the backwardness and inadequacy of representation for a particular class before making reservation provisions in favour of that particular class. 

Thus, it is clear that the scope of Article 16 is very wide. The aim and objective of Article 16 is social justice and thus, the courts have interpreted the provision in a broad sense. The state can make reservations in matters of promotion by virtue of Article 16. 

Provisions providing reservations in matters of promotions under the government have also been upheld by the United States Supreme Court. In US v. Philip Paradise (1987), a district court in the United States passed a race-conscious relief and imposed a hiring quota for black candidates on the Alabama Department for Public Safety. While upholding the relaxation in favour of black candidates, the Supreme Court held that such an order was necessitated by the compelling government interest in eradicating the structural, systematic and obstinate discriminatory exclusion of black candidates from the Department of Public Safety.  

Frequently Asked Questions (FAQs)

What is meant by per incuriam? 

Per incuriam refers to a legal decision that was passed without proper regard to the law of the land. A per incuriam decision is not binding precedent as it is passed without following the relevant statutes or earlier binding judgments. 

What is a Special Leave Petition?

A Special Leave Petition is a special remedy that the Supreme Court grants under Article 136 of the Constitution. Through the Special Leave Petition, the Supreme Court can permit an appeal against any decision, order, sentence or judgement of any court or tribunal situated in India. The Special Leave Petition is under the extraordinary jurisdiction of the Supreme Court of India. 

References 

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