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KANTI SWARUP SHARMA AND OTHERS versus UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Kanti Swarup Sharma And Others v. Union Of India And Others - WRIT - A No. 21468 of 2003 [2005] RD-AH 1381 (23 May 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgement reserved 27.4.2005

Judgement delivered 23.5.2005

Civil Misc. Writ Petition No. 21468 of 2003

Kanti Swarup Sharma and others

Versus

Union of India and others

connected with

Civil Misc. Writ Petition No. 48993 of 2003

Satya Veer Singh and others

versus

Bharat Sanchar Nigam Limited and others

Hon'ble Sunil Ambwani, J.

1. Heard Sri Somesh Khare for petitioners and Sri B.N. Singh, learned counsel for Bharat Sanchar Nigam Limited and other respondents.

2 All the petitioners are serving as Senior Telecom Operating Assistant (Senior T.O.A.) in Bharat Sanchar Nigam Limited at Ghaziabad. Petitioners 1, 2, 3, 4, 6, 8 belong to Other Castes, petitioner no. 5 belongs to Scheduled Caste and petitioner no. 7 belongs to Scheduled Tribe. The petitioners have claimed  the benefit of reservation in promotions. By this writ petition, they have prayed for quashing letter/order dated 1.4.2003 and supplementary result declared in pursuance thereto for  promotion to the post of Junior Telecom Officer (JTO) in 15% quota,  in terms of relaxation in qualifying standards as provided in Class 3 (iii) of the Departmental Letter dated 10.3.2003. The writ petition was amended by adding grounds for quashing Clause (iv) of para-3 of the Circular dated 10.3.2003, to the extent of expression ''whichever was later' and or to declare the    same to be arbitrary, illegal, discriminatory and thus violative of Article 14 of the Constitution of India.

3 The promotions to the post of Junior Telecom Officer are provided by the Junior Telecom Officer Recruitment Rules 1996 (Rules of 1997) notified by the Ministry of Communications (Department of Communications), Government of India  under Article 309 of Constitution of India. The quota  (15%) is reserved for promotion of departmental candidates through a competitive examination. Rule 7  gives powers to the Central Government for relaxation where  it is necessary or expedient to do so and for the reasons to be recorded in writing,  relaxing any of the provisions of the Rules with respect of any class or category of persons.

The petitioners appeared in the  Departmental Examination for promotions held for  U.P. (West) and UAL Telecom. Circle,  jointly  on 15/16.5.1999. The result was declared on 14.12.1999. They did not qualify. About 73 vacancies could not be filled  up in these selections  and   thus the  examinations were held again on  17/18 June, 2003, and were re-scheduled for 17/18.2.2001. Once again the examinations were postponed and were  ultimately held on 16/17.9.2000.

5. The Deputy Director (DE) Bharat Sanchar Nigam Limited issued a letter dated 10.3.2003 to all the Chief General Managers, Telecom Circles for relaxing the qualifying standards for the recruitment of JTO (15% quota of vacancies ) in the examinations held during the years 1999-2000. In these examinations the normal qualifying standards for O.C. category candidate was 40% and SC/ST  33% respectively. The department provided for relaxation of these minimum standards to OC Candidates upto 30% and SC/ST 20%, in respect of results which were finalised between 27.7.1997 and 3.10.2000. The relevant para of the letter dated 10.3.2003 is quoted;

"3. It has now been decided that in addition to the results already declared as per the standards mentioned above, separate merit list for unfilled vacancies may be drawn up by applying the relaxed standards in order to make available more departmental candidates for filling in the posts of JTOs under 15% quota;

The relaxation would be as under:-

i.) The condition for obtaining minimum qualifying standards in each subject will be dispensed with.

ii.) The merit list will be prepared on the basis of the aggregate marks obtained in all four subjects by the candidates.

iii.) The required minimum aggregate marks in all subjects will be 30% for OC candidates and 20% for SC/ST candidates. However in respect of results which have been finalized between 27th July 1997 and 3rd October, 2000 there would be no separate standards for SC/ST candidates and 30% will be uniformly applied to all candidates.

iv) The above relaxation would be applied to either of the two examinations i.e. the examination held in the year 1999 or in the year 2000 whichever was later. In short, the relaxation will not be applicable to both the examination where the examinations has been held in both the years but will be applicable to the last examination held in a circle under 15% quota and shall not be precedent for any future examination."

Sri Somesh Khare, learned counsel for the petitioners submits that the petitioners as reserved category candidates are entitled to the relaxation and to be declared successful for promotions as Junior Telecom Officer. The examinations in which the petitioners appeared were conducted on 15/16.5.1999, results of which were finalised in between 27.7.1997 and 3.10.2000. According to him the exemption clause (iv) of Clause-3 of the letter is illegal, arbitrary and discriminatory.  Once by virtue of sub clause (iii) the relaxation was given in respect of examinations, the results of which were finalised between 27.7.1997 and 3.10.2000, the condition in sub clause-(iv) that the relaxation will be applicable only to the examinations held in the year 1999 and in the year 2000 whichever was later, has no  object to be achieved. This condition attached to the  relaxation according to Sri Khare is grossly arbitrary,  as no examination was held in the year 2000,  and that the object and purpose of the relaxation is defeated. He submits that in fact subsequently  circular dated 10.3.2003, the relaxation has been extended to the examinations held 17/18.2.2001, giving exemption of qualifying marks to SC/ST and OC candidates.

Sri B.N. Singh, on the other hand, submits that the Circular letter dated 10.3.2003 was issued for a specific purpose as the OC and SC/ST candidates failed to secure qualifying marks, 40% and 33% in 1999 &  2000 examinations  and  their quota remained unfilled. With a view to fill up the quota the circular was issued and the recruitment rules of JTO were altered in the year 2000 by Bharat Sanchar Nigam Ltd. The  para-3  (ii), (iii), and (iv) provide for relaxation only to OC/SC/ST candidates for the examination held in 1999 and 2000 whichever is later. He submits that in different telecom services the examinations were held in different years. In Western Circle the examination held in the year 2000. The relaxation was given with a specific purpose  for a defined category of candidates for the welfare of OC and SC/ST candidates on account of their shortage. The selected and promoted  persons whose result was declared by the Annexure No. 6 of the amended writ petition,  and who had appeared in the examinations held in the year 2001 under 15% quota in the year 2000, are discharging their duties,  but none of them have been impleaded in the writ petition. He submits that the petitioners are not entitled to benefit of circular dated 10.3.2003.

8. The petitioners are claiming the benefit of exemptions for the examination held  in the year 1999. The subsequent examination held on 17/18.2.2001 are not covered by the exemption. The circular letter was issued by Bharat Sanchar Nigam Limited for all Telecom Circles in which the Departmental Promotion Competitive Examinations were held in different years. The object and purpose of giving relaxation is  stated in introductory part of the letter. It was found that a large number of vacancies are lying unfilled as sufficient number of category candidates are not available within the normal qualifying standards of 40% and 30% marks for OC candidates and SC/ST candidates. The relaxation was not given to all the candidates. It was confined to those who had appeared in the examination in the year 1999 and in the year 2000 whichever was later. It  was not to be given  in respect of examinations  the results of which were finalised between 27.7.1997 and 3.10.2000. It was further made clear that the reservation will not be applicable to both the examinations and where the examinations have been held for both years it will be applicable to the later  examinations.

9. Any relaxation in minimum aggregate marks for qualifying for promotions under the statutory Rules has to be strictly construed. Rule 7 of the Rules of 1996  provides these relaxation to be given by Central Government where it is necessary or expedient to do so and for the reasons to be recorded in writing. In para 6 to 13 of the supplementary counter affidavit of Sri N.C. Sharma, A.G.M. (Legal) (GMT), UP (W) Circle Meerut it is stated that the relaxation was given in compliance of Supreme Court judgement in relaxation of SC and ST examinations for those candidates whose results were finalised between 27.7.1997 and 3.10.2000. The letter dated 10.3.2003 relates to the decision taken by  B.S.N.L.  for relaxation given with reference to  examinations,  and not result finalised. There was no relaxation to be given and no separate standards were made for  SC/ST categories and 30% qualifying marks were  uniformally applied to all the candidates for the examination finalised between 27.7.1997 and 3.10.2000. The  relaxations   given in sub clause (iv)  were applicable to the  examinations held in the year 1999 or in the year 2000 whichever was later. The expression is true for UP (W) Telecom Circle as 15% quota examination was conducted  in both the  years. The Delhi circle falls within the jurisdiction of MTNL , whereas UP(W) is governed by BSNL Rules.

10. In para 10 of the counter affidavit it is stated that since in UP(W) Telecom Circle the examinations were conducted in both two years this relaxation of standard has been approved only to the  later examination held in the year 2000, the result of which were declared on 1.4.2003. The petitioners are as such not entitled to these exemptions.

11. In State of Karnataka vs. Kumari G.N. Ambiga 1995 (Supp) II SCC 560, the Supreme Court upheld the Karnataka High Court judgement that a separate procedure for local SC/ST/BC candidates, to be regularised by special rule with regard to merit and suitability would be discriminatory and not consistent to maintain efficiency in administration under Article 335 of the Constitution of India. These special rules did not provide for reservation nor affirmative action permissible under Article 14 (4). The Article 335 of Constitution of India was amended by the Constitution (82nd Amendment) Act 2000, inserting a proviso to enable the making of any provision in favour of SC/ST for relaxation in qualifying marks in any examination or lowering standards for evaluation for reservation in the matters of promotion to any  class or classes of services or posts in connection with the affairs of the Union or of a State. Once these special measures,  now enabled by the Constitution by the 82nd Amendment are made, they have to be construed strictly. Any deviation or further relaxation, based on the ground of discrimination will be violative of the mandate of Article 335, and counter productive to the purpose for which these relaxations are given as special measures.

12. For the aforesaid reasons, I find that the petitioners did not qualify for exemptions in the minimum standard of the qualifying marks for promotion to Junior Telecom Officers. The exemptions were restricted to the examinations of the year 1999, and 2000 whichever  is later. The exemptions have to be constructed strictly,  and that the conditions by which these relaxations were applied only to  later examinations is not discriminatory. The object and purpose of the relaxation in the minimum qualifying marks was to secure the availability of the reserved category candidates and not to offer the same to all the candidates for all examinations.

13. The writ petitions are consequently dismissed.

Dt.23.5.2005

RKP/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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