Ashok Bhushan, Ag. C.J.
W.A. No.1435 of 2014 (Nair Service Society v.
State of Kerala and Others) has been filed against the judgment dated 10.10.2014 passed by the learned Single Judge in W.P(C) No.28721 of 2014, by which judgment the learned Single Judge decided the Writ Petition filed by the appellant as well as two other Writ Petitions.
2. Brief facts giving rise to this Writ Appeal are: In order to ensure the standards of teaching in Higher Secondary Course, the Government have decided to conduct the State Eligibility Test (hereinafter referred to as “the SET”) for the candidates to be selected as Higher Secondary School Teachers and Non-Vocational Teachers. A pass in the SET is stipulated as a mandatory requirement for appointment as Higher Secondary School Teachers in the State. The State have entrusted the Director, LBS Centre for Science and Technology, Thiruvananthapuram the conduct of the test based on the syllabus approved by the Board of Examinations. The Examination consisted of two papers. First Paper being common for all candidates consisting of two parts; Part A - General Knowledge and Part B - Aptitude in Teaching. Paper Two shall be a test based on the subject of specialisation of the candidate at Post Graduate (PG) Level. In a year two tests are conducted; first in June and the second in December normally. For the SET in June, 2013 Prospectus was published. Clause 3 of the Prospectus provided for a requirement for pass which is to the following effect:
“3. Requirement for Pass.
To pass the State Eligibility Test, a candidate shall score:
(i) at least 35 percent of marks for Paper I and Paper II separately and
(ii) at least 50 percent of the aggregate marks for Paper I and Paper II, which is calculated as follows:
Marks secured for (Paper I + Paper II Maximum marks for (Paper I + Paper II) x 100 In computing marks, fraction shall be rounded off to the first two decimal places in the calculation of aggregate percentage of marks only. No rounding off of marks shall be made for calculating the pass percentage for Paper I and Paper II separately.”
The State Government have received request for grace marks, fee concession and concession for pass requirement for OBC, SC/ST and PWD. The pass Board in its meeting on 07.02.2013 considered the issue and the minimum requirement for marks of the SET examination was modified. For general category candidates 40% marks were prescribed in Papers I and II and 50% in aggregate. For OBC candidates 35% pass marks were prescribed for Papers I and II and aggregate 45%. For SC/ST and PWD candidates 35% marks were prescribed in Papers I and II and aggregate 40%. Approved prospectus for the SET for December, 2013 was submitted to the State Government with the above modified pass requirement. The State Government by its order dated 09.10.2013 approved the modified pass requirement on the basis of which the prospectus for SET for December, 2013 was published and paragraph 3 provided for requirement of pass which is to the following effect:
“3. Requirement for Pass.
The minimum requirement for a pass in the State Eligibility Test, shall be as follows:
*Non-Creamy Layer **PWD includes VH & PH Candidates The pass percentage shall be calculated as follows:
Marks secured for (Paper I + Paper II Maximum marks for (Paper I + Paper II) x 100 In computing marks, fraction shall be rounded off to the first two decimal places in the calculation of aggregate percentage of marks only. No rounding off of marks shall be made for calculating the pass percentage for Paper I and Paper II separately.”
Petitioner is a Society formed with the object of progress and advancement of Nair Community. Writ Petition was filed by the petitioner society alleging that injustice has been meted out to the general merit candidates to which category members of the Society belonged in the conduct of SET. It is pleaded in the Writ Petition that the standards of examination being relaxed to one category of candidates would derail the standard of minimum qualification required for the post which is legally and constitutionally impermissible. It was further pleaded that this would derail the level playing fields of candidates violating Articles 14 and 16 of the Constitution of India. The Writ Petition has been filed for praying for the following reliefs:
(i) To issue a writ of certiorari or any other appropriate writ, order or direction to quash Ext.P2 and Clause 3 of Ext.P3 providing different cut off marks as between general candidates and reserved candidates.
(ii) To issue a writ of mandamus or any other appropriate writ, order or direction to respondents to reckon minimum cut off marks of 35% for pass in Paper I & Paper II and aggregate minimum of 50% uniformly to all candidates in the SET”.
3. In the Writ Petition counter was filed on behalf of the second respondent by the Additional Secretary to Government, General Education Department justifying the modified criteria. It was pleaded that the reservation system and various measures taken by the Government are aimed for uplifting the socially, educationally and economically backward people to the main stream. A statement is filed on behalf of the 4th respondent. It is alleged that the Board had decided to follow the criteria adopted by the UGC in their National Eligibility Test examination. Incorporating the said position, prospectus for the SET examination December, 2013 has been approved.
4. Before the learned Single Judge there were two other Writ Petitions - W.P(C) Nos.14741 and 22831 of 2014 - by which the petitioners who had appeared in the SET examination, December 2013 have prayed for a direction for declaration of the result of the SET examination, December 2013. All the Writ Petitions were disposed of by the learned Single Judge. The learned Single Judge did not interfere with different cut off marks for the SET examination and dismissed the Writ Petitions by the common judgment. On dismissal of the Writ Petitions direction was issued to the Director to publish the result of the SEC examination within one month. Petitioner, aggrieved by the said judgment has come up in this Writ Appeal.
5. W.A. No.1512 of 2014 (Jessy Cyriac v.
State of Kerala and Others) (W.P(C)No.14741 of 2014) is filed against the same judgment of the learned Single Judge. The appellant was a candidate in the qualifying examination conducted by the 4th respondent on 02.02.2014 for and on behalf of the State of Kerala on the basis of the prospectus issued for the SET examination December 2013 which for the first time provided minimum percentage of marks for the general merit and OBC/SC/ST/PWD candidates differently. Petitioner in the Writ Petition has prayed for quashing the Government Order dated 09.10.2013 approving the prospectus as well as clause 3 of Ext.P3, the prospectus of the SET examination, December 2013. Similar prayers have been made by the petitioner as has been made in the first Writ Petition stated above.
6. We have heard shri R.T.Pradeep and Joby Cyriac, learned counsel appearing for the appellants. Shri K.B.Pradeep has appeared for the interveners. Shri P.I.Davis, learned Government Pleader has appeared on behalf of the State respondents.
7. Learned counsel for the appellants in support of the appeals contended that the SET examination being a qualifying examination which makes a person eligible for appointment as teacher in Government as well as private institutions, the pass marks cannot be differently fixed for general category candidates and reserved category candidates. It is submitted that even an affirmative action under Art.16(4) and 16(4A) of the Constitution has to comply with the mandate of Arts.14 and 16(1) of the Constitution. It is submitted that the balance between reservation and administrative efficiency not only with reference to SC/ST candidates but also with reference to OBC candidates under Article 335 has to be scrupulously followed for both the reservation under Art.16(4) and Art.16(4A). Relaxation and concessions to observe reservation is possible only for initial direct recruitment. The SET being a qualifying examination to acquire the eligibility criteria to come within the zone of selection, protective discrimination contemplated under Arts.16(4) and 16(4A) would not apply. The relaxation of qualifying marks would have a bearing upon the standard of examination to the extent of lowering the eligibility criteria for reserved categories and thereby offend the inter se merit and the principle of level playing ground. Qualifying marks refer the minimum marks in the examination to be secured to come within the zone of selection which cannot be differentiated between general candidates and reserved candidates. Lowering of qualifying marks for reserved categories identified on backwardness cannot be sustained under Art.14. SET examination is not pari materia with NET. Hence the respondents have committed error in following the pattern of NET examination. Cut off marks for general category is arbitrary, illegal and improper. It is submitted that reservation of lowering marks for OBC/SC/ST candidates can only be done in exercise of the power under Art.16(4). It is submitted that Art.16(4) is not attracted in the present case which is applicable only in the context of admission in educational institutions. Present is not being a case of admissions in the educational institutions, the action of the State is not protected under Art.15 of the Constitution also.
8. Learned Government Pleader refuting the submissions of the learned counsel for the appellants contended that the State has full jurisdiction to lower the pass marks for the OBC/SC/ST/PWD candidates with the object of their advancement and bringing them into the main stream. The State is fully empowered to make provision for such protective discrimination under Art.15(4) of the Constitution. There is reasonable classification in providing different pass marks for the general category and SC/ST/OBC/PWD candidates. Modulation of the examination which has changed for the SET examination in December, 2013, does not suffer from any arbitrariness and are not hit by Artr.14 of the Constitution. Learned counsel for both parties have placed reliance on various judgments of this Court and the Apex Court which shall be referred to while considering the submissions.
9. We have considered the submissions of the parties and perused the records. From the facts as noted above, it is clear that earlier pass marks in the first and second paper for all categories were same; 35% and 50% aggregate for all candidates. For the SET examination of December 2013 different pass marks have been prescribed for OBC/SC/ST/PWD and the general category candidates. For OBC category candidates pass marks remain 35%. Further, in aggregate it has been reduced to 45%. For SC/ST pass marks remain 35% and in aggregate it has been reduced to 40%. For general category pass marks enhanced from 35% to 40% whereas the aggregate remained the same, i.e. 50%. Question is as to whether the State conducting SET examination has constitutional authority to modify the pass marks for general category and reserved category candidates and whether the said modification violates Art.14 of the Constitution of India.
10. Reservation in public employment is an accepted constitutional principle. Article 16(4) fully protects and justifies reservation in public employment of backward class of citizens. Although, pass in the SET examination is a condition precedent for appointment as teacher in the Government as well as private institutions but by mere passing the SET examination no public employment is offered. Hence the modified modulation which has been now provided for SET examination December 2013 does not fall under Art.16(4) of the Constitution.
11. Article 15 of the Constitution contains prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. By Constitution (First Amendment) Act, 1951, Art.15(4) was added in the Constitution. Further by Constitution (Ninety-third Amendment) Act 2005 Art.15(5) has again been added in the Constitution. Article 15 is to the following effect:
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place or birth.- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizen or for the Scheduled Castes or the Scheduled Tribes in so far as such special provision relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational, institutions referred to in clause (1) of article 30.”
12. Whether the modified requirement of passing percentage for OBC/SC/ST and general category candidates is referable to the power of the State under Article 15(4) is one of the questions which needs to be answered in the present case. Submission of the learned counsel for the appellants is that Art.15(4) refers to only admissions in educational institutions since it refers to Art.29(2) of the Constitution, hence the power cannot be exercised by the State under Art.15(4) of the Constitution for providing different criteria for passing the SET examination for general category and reserved category candidates. A plain reading of Art.15(4) indicate that Art.15(4) is intended to have an overriding effect to control not only other provisions of Art.15 but provisions of clause 2 of Art.29. Article 15(4) empowers the State to make any such provision for advancement of any socially and educationally backward classes of citizens or for the SC/ST. The use of the words “any special provision” gives very wide amplitude to the scope and ambit of Art.15(4). The said provision may relate to admission in educational institutions or may relate to providing a housing site for members of the SC/ST or for any other benefit. A nine Judge Bench in Indra Sawhney and Others v. Union of India and Others ([1992] 3 Suppl. SCC 217) had occasion to consider Art.15(4) of the Constitution. B.P.Jeevan Reddy delivering the majority judgment in the said case has laid down the following:
“846. Dr Rajeev Dhavan describes Article 15 (4) as a provision envisaging programmes of positive action and Article 16(4) as a provision warranting programmes of positive discrimination. We are afraid we may not be able to fit these provisions into this kind of compartmentalisation in the context and scheme of our constitutional provisions. By now, it is well settled that reservations in educational institutions and other walks of life can be provided under Article 15(4) just as reservations can be provided in services under Article 16(4). If so, it would not be correct to confine Article 15(4) to programmes of positive action alone. Article 15(4) is wider than Article 16(4) inasmuch as several kinds of positive action programmes can also be evolved and implemented thereunder (in addition to reservations) to improve the conditions of SEBCs, Scheduled Castes and Scheduled Tribes, whereas Article 16(4) speaks only of one type of remedial measure, namely, reservation of appointments/posts. But it may not be entirely right to say that Article 15(4) is a provision envisaging programmes of positive action. Indeed, even programmes of positive action may sometimes involve a degree of discrimination. For example, if a special residential school is established for Scheduled Tribes or Scheduled Castes at State expense, it is a discrimination against other students, upon whose education a far lesser amount is being spent by the State. Or for that matter, take the very American cases —Fullilove51 or Metro Broadcasting52 — can it be said that they do not involve any discrimination? They do. It is another matter that such discrimination is not unconstitutional for the reason that it is designed to achieve an important government objective.”
The Apex Court while explaining the ambit and scope of Art.15(4) held that it is well settled that the reservation in educational institutions and other walks of life can be provided under Art.15(4) of the Constitution. A Division Bench of the Allahabad High Court to which one of us was a party (Justice Ashok Bhushan) had occasion to consider the cope of Art.15(4) in Civil Misc. Writ Petition No.39608 of 2009 (Nav Nirman Thekedar Kalyan Association and another v. State of U.P and Others). In the said case the Government had issued a Government Order dated 30th June, 2009 which provided 20% reservation for Scheduled Case and 2% reservation for Schedule Tribe in the contract to be awarded by the Government, Corporation, Development Authority and Local Bodies value of which contract is upto Rs.5,00,000/-. The Government Order was challenged in the Writ Petition where it was contended that it violates Art.14 and not protected by the Constitution. The Division Bench repelled the contention referring to several judgments of the Apex Court and held that the special provisions under Art.15(4) are not confined to admission in educational institutions rather other special provisions can be made by the State in exercise of the power under Article 15(4). It is useful to quote the following observations of the Division bench.
“The language of Article 15(4) of the Constitution shows, first, that 'reservation' as such, is not expressly mentioned in that Article, but fall within the wide expression 'special provision for the advancement...". The special provision includes every kind of assistance which can be given to backward classes, Scheduled Castes and Scheduled Tribes to make them stand on their feet to bring them into the mainstream of life. At this stage we propose to consider the submission of the petitioners that Article 15(4) of the Constitution confines only to admission in educational institutions. The said submission has been advanced referring to mention of Clause (2) of Article 29 of the Constitution of India in Article 15(4). Article 29(2) of the Constitution provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State fund on grounds only of religion, race, caste, language or any of them. Sub-clause (4) of Article 15 uses two phrases, namely, (i) 'Nothing in this article' and (ii) 'or in Clause (2) of Article 29'. Thus, Article 15(4) empowers the State to make any special provision notwithstanding the injunction contained in Article 29(2) of the Constitution. Article 15(4) thus cannot be held to confine to special provision only pertaining to admission in educational institution as provided in Article 29(2), rather Article 15(4) empowers the State to make a provision notwithstanding to Clause (2) of Article 29 but operation of Clause (4) of Article 15 cannot be confined only to admission in educational institution. Thus, the submission of the petitioners' counsel that Article 15(4) shall only confine to admission in educational institution cannot be accepted.
At this stage, it is relevant to refer certain cases relied by learned Counsel for the respondents in which special provision with regard to Scheduled Castes and Scheduled Tribes made with regard to subject matter other than admission in educational institutions. In Moosa v. State of Kerala AIR I960 Ker 355, an order acquiring land for constructing a colony for Harijans was held valid under Article 15 (4) of the Constitution. Similarly the case of Pavadai Gounder and Ors. v. State of Madras and Anr. AIR 1973 SC 458, was also a case with regard to acquisition of land for construction of colony for Harijans, which was held valid referring to Article 15 (4) of the Constitution. In Dr. Ram Krishna Balothia v. Union of India and Ors. AIR 1994 MP 143, the Madhya Pradesh High Court had occasion to consider the scope and ambit of Article 15(4) of the Constitution in context of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The validity of the 1989 Act was challenged on the ground that it violates Article 15(1) of the Constitution it being based on caste discrimination and is not saved by Article 15(4) of the Constitution. The Division Bench of the Madhya Pradesh High Court repelling the submission, laid down following in paragraphs 8 and 9 of the said judgment:
“8. The language used in Article 15(4) cannot be understood in a narrow sense. Article 15(4) embodies the doctrine of protective discrimination. The word 'advancement' in Clause (4) of Article 15 is not subject to any qualification and by no principle of interpretation it could be said that from the context it should be construed in a restricted sense, as amounting to only social and educational advancement. The expression "special provision for the advancement" is an expression of very wide import and brings within its sweep each and every kind of advancement. This is so because Scheduled Castes and Scheduled Tribes occupy a special position in our Constitution. They have endured great ill- treatment as untouchables for centuries, apart from their backwardness. It must be remembered that thousands of years of discrimination cannot be wiped out in one generation. It is in the fitness of things that every effort is to be made to correct this long standing and historical discrimination.
9. A special provision does not only mean to provide for education, agricultural programmes, schemes for training to purpose trade or business, free education, free hostel facilities, free food or clothes, advancement of loans, special facilities regarding recovery of loans, etc. as argued by the counsel for the petitioners. To our mind, it would include all out effort by the State to make them stand on their own feet, to bring them into the mainstream of the National life, to live with dignity, self-esteem and with head held high. This is only possible if they are permitted to live in the society without fear or suppression from upper castes or top echelons of the society belonging to the another caste, creed or religion. The Act contains affirmative measures to weed out the root cause of the same, which has denied them civil rights and subjected them to various kinds of indignities, humiliations and harassment for various historical, social and economic reasons. Advancement of the oppressed people requires dealing with upper levels of the society when they try to suppress or deny legitimate aspirations of Scheduled Castes and Scheduled Tribes, their right to life and dignity, freedom from bonded labour and must protect them from the practice of untouchability, help to protect their self-respect and the honour of their women, and to shield them from oppressive land grabbers of the land allotted to them, protection from all kinds of oppression, social, political, economic and cultural must be provided for to ensure their advancement.
In State of U.P. and Anr. v. C.O.D. Chheoki Employees' Cooperative Society Ltd. and Ors AIR 1997 SC 1413, the provisions of Rules 393A, 393B, 440 and 444 of the U.P. Cooperative Societies Act, 1968, which provided for reservation/nomination of seats for weaker section of the society, were under challenge. The Apex Court upholding the provisions as having been made in exercise of power under Article 15(4) of the Constitution, laid down following in paragraph 16 of the said judgment:
16. Shri Raju Ramachandran, relying upon the judgment of this Court in Damyanti Naranga v. Union of India AIR 1971 SC 966, has contended that in view of the ratio laid down by this Court, the Government is devoid of power to make law unless any of the restrictions as controlled by Clause (4) of Article 19 of the Constitution of India are infringed. The Government has no power to enact a law incorporating the reservation to the members of weaker sections and women thereof. We find no force in the contention. It could be seen that therein, the Government had enacted the Sahitya Sammelan Act exercising the power under Entry 63, List I of the Seventh Schedule to the Constitution. This Court pointed out that the Act did not envisage that the Samiti is of national importance. Therefore, it was held that the Parliament had lacked power to enact the law incorporating the society and inducting outside members against the wishes of the founder members of the Society registered under the Societies Registration Act. This Court also held that the properties belonging to the original Society stood vested in the Society incorporated under Section 4 of the Act without any compensation. Therefore, it was violative of Article 31 of the Constitution of India, as it stood then. The ratio therein has no application to the facts in this case. He then contended that "other backward classes" defined under the State Public Services Reservation Act applicable to and covering the public services, they are being induced as members of the society which are otherwise not eligible and, therefore, the induction of them by amendment of Rules made on 15.7.1994 is unconstitutional. In support thereof, he contends that though Article 15 (4) of the Constitution provides that it is subject to Articles 15(2) and 29(2) of the Constitution, it does not envisage that it is also subject to Article 19(1)(c) of the Constitution. Therefore, the reservation provided to the weaker sections is unconstitutional. We find no force in the contention. The object of Article 15(4) is to lift the prohibition of general equality guaranteed in Articles 15(2) and 29(2) of the Constitution dealing with the right to admission into an educational institution maintained by the State or receiving aid from the State. Therefore, their object is distinct and different from Article 19(1)(c), though Article 19(1)(c) gives freedom to form association, it is controlled by the provisions of the Act. As held by this Court, once a society has been registered under the Act, the management of the society through Section 29 and the Rules made thereunder, is regulated by duly elected members. In the democratic set up, all eligible persons are entitled to contest the election, as held, according to the provisions of the Act and Rules. In the absence of elected members belonging to the weaker sections and women elected, nomination of them by the Government is the alternative dispensation envisaged as one of the policies of the Act. Therefore, the Court cannot interfere with the policy and declare it is (as) unconstitutional violating Article 19(1)(c) of the Constitution.
Similarly a Division Bench of our Court in Maiyadeen v. State of U.P. And Anr. AIR 1997 All 343), while considering the provisions of Rules 9A and 53A of U.P. Minor Minerals (Concession) Rules, 1963 held the provisions intra vires after referring to Article 15(4) of the Constitution of India. Following was laid down in paragraph 7 of the said judgment:
7. A perusal of Clause (4) of Article 15 as well as Directive Principles of State Policy, contained in Articles 38 and 39 of the Constitution will indicate that the State can classify socially and educationally backward classes as different class and can afford to them protection. Any law, Statute, Bye-law, Regulation or Government order which provide protection or reservation to socially and educationally backward classes cannot be said to be discriminatory, but it in consonance with the principles underlying in Clause (4) to Article 15 of the Constitution of India as well as Articles 38 and 39 of the Constitution of India. It is a matter of common knowledge that certain classes of citizens known as Mallah, Kewat, Bind, Nishad or Mahgira are generally engaged in carrying on the profession of excavation of sand of morrum on the banks of the rivers.
13. Thus Article 15(4) enables the State Goverment to make special provision for advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste and the Scheduled Tribes.
14. In the counter affidavit filed on behalf of the 2nd respondent, certain details have been given with regard to the decision taken for awarding modified pass marks for the reserved candidates. It has been pleaded that the Board in its meeting dated 07.08.2013 to introduce the criteria of minimum requirement of pass following the relaxation granted to by the UGC in the NET examination. In paragraph 6 of the statement filed on behalf of the 4th respondent the following was stated:
“6. It is submitted that according to the Prospectus in force till June, 2013, those who havef acquired Masters Degree in the concerned subjects in Second Class with not less than 50% marks and B.Ed are eligible to appear for the test. There are two Papers for SET. Paper I consisting of 'General Knowledge' and 'Aptitude in Teaching' is common for all candidates. Paper II is a test based on the subject of specialization of the candidtes at Post Graduate level prepared on the basis of common syllabi. For securing a pass in SET examination, a candidagter should score at least 35% marks in Paper I and Paper II. The Bord at its meeting held on 16.3.2012 considered a request from visually handicapped candidates for the award of grace marks in the test as given to the candidates for the award of grace marks in the test as given to the candidates who appear for the National Eligibility Test (NET) conducted by the Universwity Grants Commission (UGC). The Bord decided that the details regarding concessions given by the UGC in their NET/JRF should be examined before the next meeting for consideration. In the meanwhile, President, Kerala State Lawyer's Forum submitted a petition to the Honourable Minister for Education requesting 5% relaxation int he minimum pass marks for OBC (Non-Creamy Layer)/PWD/SC/ST candidates as granted by the UGC for their National Eligibility Test/Junior Research Fellowship. The Minister forwarded the petition to the Centre for further action. The said petition was placed before the meeting of the Board held on 07.08.2013 with the details of the eligibility criteria followed by the UGC. It is submitted that minimum marks to be obtained in NET for considering a candidte for the award of JRF and eligibility for Assistant Profession is scoring of 40% marks in all the papers for the General Candidates, 35% for the OBC (Non-creamy layer) and 35% for the candidates belonged to PWD/SC/ST category. After examining the eligibility criteria adopted by the UGC for the NET/JRF examinations, the Pass Board considered the reqeust for concession in the pass requirement or SET for the candidates belonging to OBC/SC/ST/PWD as being granted to candidates appearing for UGC/NET and decided that for securing a pass in SET examinations candidates belong to the general category have to score at least 40% marks in each paper and at least 50% of the aggregate marks of Paper I and Paper II. Candidates belong to OBC (Non-creamy layer) categories have to score at least 35% marks in each paper and at least 45% of the aggregate marks for Paper I and Paper II.
Candidates belong to PWD/SC/ST categories has to score at least 35% marks in each paper and at least 40% of the aggregate marks for Paper I and Paper II. This was the very same criteria adopted by the UGC in their NET examinations. It was also decided by the Board to adopt these in the upcoming SET examinations. It is incorporating the said decision approved by the Pass Board, the prospectus for SET December, 2013 have been prepared”.
Learned counsel for the appellants submitted that the SET examination being only a qualifying examination, different pass marks cannot be prescribed by the State for general and reserved category of candidates. It is to be noted that a pass in SET examination is a conditon precedent for seeking employment in the State both in private and public. The State which conducts the SET examination is fully empowered to lay down the mandates for pass marks. Reduction of pass marks for reserved category is an affirmative action taken by the State to bring the socially and educationally backward classes into the main stream.
Special prrovisions for advancement under Art.15(4) are akin to the reservation provided to the reserved candidates in public employment. Learned counsel for the appellant has placed reliance on the Apex Court judgment in Indra Sawhney v. Union of India (supra) for the proposition that claim of OBC category citizens must also be considered consistently with the maintenance of efficiency. It is submitted that when giving reservation to the members of SC/ST, Art.335 of the Constitution has to be taken into consideration. The said criteria is also to be applied while giving any reservation or relaxation to the memebrs of the backward category. Reliance was placed on paragraphs 417 and 434 of the said judgment of Justice A.Sawant which are quoted below:
“417. In view of the above meanings ascribed to the terms, it can hardly be argued that caste is not a class. A caste has all the attributes of a class and can form a separate class. If, therefore, a caste is also a backward class within the meaning of Art.16 (4), there is nothing in the said Article or in any other provision of the Constitution, to prevent the conferment of the special benefits under that Article on the said caste. Hence it can hardly be argued that caste in no circumstances may form the basis of or be a relevant consideration for identification of backward class of citizens.
It will be instructive in this connection to refer to the earlier decisions on the point.
434. Question IV:
Can the extent of reservation of posts in the services under the State under Art.16(4) or, if permitted under Arts.16(1) and 16(4) together, exceed 50% of the posts in a cadre or service under the State or exceed 50% of appointments in a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in the different categories and grades of services under the State?
It has already been pointed out earlier that clause (4) of Art.16 is not an exception to clause (1) thereof. Even assuming that it is an exception, there is no numerical relationship between a rule and its exception, and their respective scope depends upon the areas and situations they cover. How large the area of the exception will be, will of course, depend upon the circumstances in each case. Hence, legally, it cannot be insisted that the exception will cover not more than 50 per cent of the area covered by the rule. Whether, therefore, clause (4) is held as an exception to clause (1) or is treated as a more emphatic way of stating what is obvious under the said clause, has no bearing on the percentage of reservations to be kept under it. As Justice Hegde has stated in State of Punjab v. Hiralal (1971 (3) SCR 267 at 272) : (AIR 1971 SC 1777), "the length of the leap to be provided depends upon the gap to be covered". In Art.16(4) itself, there is no indication of the extent of reservation that can be made in favour of the backward classes. However, the object of reservation, viz., to ensure adequacy of representation, mentioned there, serves as a guide for the percentage of reservations to be kept. Broadly speaking, the adequacy of representation in the services will have to be proportionate to the proportion of the backward classes in the total population. In this connection, a reference may be made to the U.S. decision in Fullilove (1980 (65) Law Ed 2d 902) where 10% of the business was reserved for the blacks, their population being roughly 10 per cent of the total population. If the reservation is to be on the basis of the proportion of the population in this country, the backward classes being no less than 77 1/2 per cent (socially and educationally backward classes and Scheduled Castes and Scheduled Tribes taken together) the total reservation will have to be to that extent. It is not disputed that at present the reservations for the SCs / STs are roughly in proportion to their total population”.
15. There cannot be any dispute to the proposition laid down by the Apex Court in the above said case. The standards cannot be lower down to such an extent as to sacrifice the efficiency or to violate Art.14 of the Constitution. Judgment of the Apex Court in P.V.Indiresan v. Union of India ([2011] 8 SCC 441) has also been referred to. The Apex Court in the said case laid down the following in paragraphs 52 and 53:
“52. The words “cut-off marks” have been used thrice in the second paragraph of the order dated 14-10-20081 containing the operative direction. They are used in the first sentence of the paragraph while posing the question for decision, that is, “what should be the extent of cut-off marks for admission of students of OBCs in CEIs”. They are used in the second sentence of the paragraph while giving the answer to the question posed, that is, “we make it clear that the maximum cut-off marks for OBCs be 10% below the cut-off marks of general category candidates”. The words “cut-off marks” occurring in three places in the second paragraph of the order dated 14-10-20081 have three distinct and different meanings:
(i) The use of the words, “extent of cut-off marks” in the first sentence refers to the “minimum eligibility marks” (or to the “minimum qualifying marks” if there is entrance examination), for admission of OBC candidates.
(ii) The use of the words, “maximum cut-off marks for OBCs” in the first part of the second sentence refers to the percentage of marks by which the eligibility/qualifying marks could be lowered from the minimum eligibility/qualifying marks prescribed for general category students. In other words, it refers to the difference between the minimum eligibility/qualifying marks for general category and minimum eligibility/qualifying marks for OBCs and directs that such difference should not be more than 10% of the minimum eligibility/qualifying marks prescribed for general category candidates.
(iii) The use of the words, “cut-off marks of general category candidates” in the latter part of the second sentence, refers to the minimum eligibility marks (or to the minimum qualifying marks if there is an entrance examination) prescribed for general category candidates.
The use of the words “cut-off-marks” in none of the three places in para 2 of the order dated 14-10- 20081, refers to the marks secured by the last candidate to be admitted in general category or in any particular category, or to the minimum marks to be possessed by OBC candidates, determined with reference to the marks secured by the last candidate to be admitted under general category.
53. The order dated 14-10-20081 means that where minimum eligibility marks in the qualifying examinations are prescribed for admission, say as 50% for general category candidates, the minimum eligibility marks for OBCs should not be less than 45% (that is, 50 less 10% of 50). The minimum eligibility marks for OBCs can be fixed at any number between 45 and 50, at the discretion of the institution. Or, where the candidates are required to take an entrance examination and if the qualifying marks in the entrance examination is fixed as 40% for general category candidates, the qualifying marks for OBC candidates should not be less than 36% (that is, 40 less 10% of 40)”.
Learned counsel for the appellants submitted that the said judgment was with regard to the cut off marks and there is distinction between the qualifying marks and cut off marks. In the above said case the Apex Court accepted the principle that eligibility marks in the qualifying examination can be prescribed lower for other backward category candidates less than the percentage of marks which clearly meant that prescription of lower qualifying marks is a permissible classification.
16. The Apex Court in Ashoka Kumar Thakur v.
Union of India ([2008] 6 SCC 1) had occasion to consider the Constitution (93rd Amendment) Act. In the above context, one of the Judges, Justice Bandari, J., giving his concurring opinion has noted the difference in the cut off marks between the OBC and general category candidates where it was laid down that the difference should not be lower than 10 marks in the general category. Learned counsel for the appellants submitted that the said judgment cannot be said to be the ratio of bench judgment. No contrary opinion has been observed by the other Judges in the said case. The observations in paragraphs 6 to 9 can be very safely relied upon which are to the following effect:
“6. Reservation is one of the many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It is also the duty of the State to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the Constitution. In the context of education, any measure that promotes the sharing of knowledge, information and ideas, and encourages and improves learning, among India's vastly diverse classes deserves encouragement. To cope with the modern world and its complexities and turbulent problems, education is a must and it cannot remain cloistered for the benefit of a privileged few. Reservations provide that extra advantage to those persons who, without such support, can forever only dream of university, education, without ever being able to realize it. This advantage is necessary. In the words of President Lyndon Johnson, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line and then say, 'You are free to compete with all the others ..."
7. Dr. Rajendra Prasad, at the concluding address of the Constituent Assembly, stated in the following words:-
"... To all we give the assurance that it will be our endeavour to end poverty and squalor and its companions, hunger and disease; to abolish distinction and exploitation and to ensure decent conditions of living. We are embarking on a great task.
We hope that in this we shall have the unstinted service and cooperation of all our people and the sympathy and support of all the communities ..."
8. It must also be borne in mind that many other democracies face similar problems and grapple with issues of discrimination, in their own societal context. Though their social structure may be markedly different from ours, the problem of inequality in the larger context and the tools used to combat it may be common. As stated by Justice Ruth Bader Ginsburg at the 51st Cardozo Memorial Lecture, in 1999 :
"In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are losers if we neglect what others can tell us about endeavours to eradicate bias against women, minorities and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world. In this, reality, as well as the determination to counter it, we all share."
9. We are conscious of the fact that any reservation or preference shall not lead to reverse discrimination. The Constitution (Ninety Third) Amendment Act, 2005 and the enactment of Act 5 of 2007 giving reservation to Other Backward Classes (OBCs), Scheduled Castes (SCs) and Scheduled Tribes (STs) created mixed reactions in the society. Though the reservation in favour of SC and ST is not opposed by the petitioners, the reservation of 27% in favour of Other Backward Classes / Socially and educationally backward classes is strongly opposed by various petitioners in these cases. Eminent Counsel appeared both for the petitioners and respondents. The learned Solicitor General and Additional Solicitor General appeared and expressed their views. We have tried to address, with utmost care and attention, the various arguments advanced by the learned counsel and we are greatly beholden to all of them for the manner in which they have analysed and presented the case before us which is of great importance, affecting large sections of the community”.
17. Now coming to the submission of the learned counsel for the appellants that prescription of lowering of marks for reserved categories violates Art.14. Article 14 prohibits class legislation but it does not prohibit the reasonable classification. The Constitution Bench of the Apex Court in Kumari Chitra Ghosh and another v. Union of India and Others ([1969] 2 SCC 228) had laid down the following in paragraph 8:
“8. As laid down in Shri Ram Krishna Dalmia v. S. R. Tendolkar, 1959 SCR 279 = (AIR 1958 SC 538) Art.14 forbids class legislation; it does not forbid reasonable classification. In other words to pass the test of permissible classification two conditions must be fulfilled, (i) that the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that differentia must have a rational relation to the object sought to be achieved. The first group of persons for whom seats have been reserved are the sons and daughters of residents of Union territories other than Delhi. These areas are well known to be comparatively backward and with the exception of Himachal Pradesh they do not have any Medical College of their own. It was necessary that persons desirous of receiving medical education from these areas should be provided some facility for doing so. As regards the sons and daughters of Central Government servants postel in Indian Missions abroad it is equally well known that due to exigencies of their service these persons are faced with lot of difficulties in the matter of education. Apart from the problems of language, it is not easy or always possible to get admission into institutions imparting medical education in foreign countries. The Cultural, Colombo Plan and Thailand scholars are given admission in medical institutions in this country by reason of reciprocal arrangements of educational and cultural nature. Regarding. Jammu and Kashmir scholars it must be remembered that the problems relating to them are of a peculiar nature and there do not exist adequate arrangements for medical education in the State itself for its residents. The classification in all these cases is based on intelligible differetia which distinguishes them from the group to which the appellants belong”.
18. Justice V.R. Krishna Iyer (as His Lordship then was) in State of Kerala v. T.P.Roshna ([1979] 1 SCC 572) has also laid down the following in paragraph 15 which is to the following effect:
“15. We are not impressed much with the surmise which colours the reasoning of the Full Bench and the learned Single Judge that there is such substantial difference in the pre degree courses and evaluations between the sister universities within the same State the breach of Article 14 by equal treatment of the marks unequally secured by examinees in the two universities may be spelt out. It is trite law that every inconsequential differentiation between two things does not constitute the vice of discrimination, if law clubs them together ignoring venial variances. Article 14 is not a voodoo which visits with invalidation every executive or legislative fusion of things or categories where there are no pronounced inequalities.
Mathematical equality is not the touchstone of constitutionality. This Court in Triloki Nath Khosa (State of J. and K. v. Triloki Nath Khosa, (1974 (1) SCC 19, 42 : 1974 SCC (L&S) 49) cautioned :
“Mini classifications based on micro distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality”.
In the same ruling there was a caveat entered by Chandrachud, J. (as he then was) against "a charter for making minute and microcosmic classifications." What is more, a large latitude is allowed in this area to the State to classify or declassify based on diverse considerations of relevant pragmatism, and the judiciary should not "rush in" where the executive warily treads. The core question is whether there is such substantial differentiation between the two universities in regard to the pre degree or degree courses and system of examinations as too glaring to imperil the equal protection clause. The presumption is in favour of the vires of legislative and executive action where Article 14 is the basis of challenge. We see no factual disparities disclosed in the Full Bench ruling to reach the result of substantial difference in the syllabi, in the pattern of examinations, in the marking systems or in the choice of the examiners so as to warrant invalidation on account of equal regard being accorded to the marks secured by the examinees from the two universities. We cannot forget that many colleges are run by the State or institutional managements where pre degree or degree courses are undertaken. The teachers move from one university jurisdiction to the other, the teaching material is inevitably of a like nature; the subjects taught must ordinarily be alike. The examiners are usually drawn from within the State or neighbouring States. Even the composition of the academic bodies in the two universities may have common members. The University Acts themselves are substantially similar. To surmise discrimination from possibilities is alien to the forensic process in the absence of hard facts. We are aware that there are Universities and Universities, that gross divergences among them exist affecting the quality of the teaching and the marking, the anomalies of grading and the absurdity of equating the end products on the blind assumption that the same marks mean the same excellence. But not glib surmises but solid facts supply the sinews of discriminatory inequality or equality. Going by vague reports, some backward universities and colleges have degenerated into degree dealers bringing rapid discredit to Indian academic status”.
There cannot be any dispute to the proposition laid down by the Apex Court in the said case. Learned counsel for the appellants has placed reliance on the judgment of the Apex Court in Anil Kumar Gupta and Others v. State of U.P and Others ([1995] 5 SCC 173). The Apex Court in the said case had occasion to consider the social reservation under Art.15(4) as well as the horizontal special reservation under Art.15(1). The Apex Court had laid down that while providing horizontal reservation it should be specified that original reservation is a compartment one or an overall one. The said judgment in no manner help the appellants.
19. In S. Vinod Kumar and another v. Union of India and Others ([1996] 6 SCC 580) the Apex Court held that making a provision for lower qualifying marks or lesser level of marks to reserved category is impermissible in promotion. The Apex Court referred to Art.335 of the Constitution. It is useful to quote paragraphs 2 and 9 of the said judgment:
“2. In Indira Sawhney and Others v. Union of India and Others, 1992 Suppl. 3 SCC 215, this Court had, while declaring that Art.16(4) does not contemplate or permit reservation in the matter of promotions, declared that for the several reasons stated therein, the reservations already made shall continue for a period of five years from the date of the said judgment. In Para 829 [at Page 747] of the majority judgment, it was directed that "our decision on this question shall operate only prospectively and shall not effect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of 'State' in Art.12 - such reservations shall continue in operation for a period of five years from this day". Then, in the next para, Para 831, the majority judgment made the following observations:
We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in State of Kerala v.
N. M. Thomas, 1976 (2) SCC 310, and the concessions namely carrying forward of vacancies and provisions for in service coaching/training in Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, 1981 (1) SCC 246, are instances of such concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs - consistent with the efficiency of administration and the nature of duties attaching to the office concerned - in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded hereinabove”.
9. To the same effect are the observations of Sawant, J. in Para 549, which we have extracted hereinabove. The learned Judge also speaks of "concessions/exemptions etc. such as relaxation of age, extra attempts for passing the examination, extra training period etc." The other learned Judges in their separate opinions have merely held that reservation in the matter of promotions is not permissible under Art.16(4). They have not separately dealt with the concessions and facilities which can be extended to these reserved categories. [Of course, one of the learned Judges who constituted the majority, Ahmadi, J. (as the learned Chief Justice then was) was of the opinion that it was not necessary to consider in that case the question whether Art.16(4) permits reservation in the matter of promotions.] In the light of the fact that Pandian and Sawant, JJ. have agreed with the conclusions arrived at in the majority judgment and in the absence of any contrary proposition in the opinion of any other learned Judge, it must be held that the law on this question is the one declared in Para 831. We are, therefore, of the opinion that so far as the provision for lower qualifying marks or lesser level of evaluation in the matter of promotion is concerned, it is not permissible under Art.16(4) in view of the command contained in Art.335 of the Constitution. In other words, even if it is assumed for the sake of argument that reservation is permitted by Art.16(4) in the matter of promotions, a provision for lower qualifying marks or lesser level of evaluation is not permissible in the matter of promotions, by virtue of Art.335. If so, there can be no question of such a provision or "concession", as it is called by the Tribunal, being saved by the declaration in Para 829 of the said judgment.
In the above case the Apex Court also held that Art.16 (4) at the level of direct recruitment it may be permissible to provide lower qualifying marks or a lesser level of evolution of marks but it is not permissible in the case of promotion. The said judgment has also no application to the facts of the present case.
20. One more judgment which has been relied on by the learned Government Pleader needs to be considered is Ram Bhagat Singh and Another v. State of Haryana and Another ([1997] 11 SCC 417). The Apex Court was examining the case of lower qualifying marks for SC/ST candidates in the Punjab Civil Services (Judicial Branch) Rules. In the context of Art.16 (1) and (4) the following was laid down in paragraph 4:
4. We are of the opinion that equality of opportunity should be striven for and ensured in public employment. Steps should be taken to see where unequals are competing, conditions must be created by relaxation or otherwise so that unequals compete in terms of equality with others in respect of jobs and employments of the State. Our Constitution so enjoins it. Art.38 of the Constitution read with Art.14, 15 and 16 so mandates it. In order, therefore, to give those who are unequals, and it is accepted that scheduled castes and scheduled tribes for reasons historical or otherwise, are unequal with the general members of the community in respect of ability and qualification for public employment. Hence, in order to make the unequals compete on conditions of equality certain relaxations and other factors ensuring equality are imperative. Those groups or segments of society which are by reasons of history or otherwise unable to compete in terms of absolute equality with the members of other communities or groups in the society, should be ensured and assured chances of competing in terms of equality. They must be helped to compete equally but it is important to emphasise that equality of opportunity is sought to be achieved for the public services or employment. The efficacy and efficiency of that service is of prime consideration. Equality must be there for all to compete for the public services. Public services and public employment do not exist for providing jobs in terms of equality or otherwise to all. Only public services and public employment must serve public purpose and nothing that hampers or impairs the efficiency or efficacy of public services cannot and should not be permitted in ensuring conditions of constitutional equality. These should be done objectively, rationally and reasonably. As is often said, it may be that need to ensure equality for scheduled castes and scheduled tribes should not be surrendered on the facile and value based perception of efficiency. Yet efficiency must be ensured. Real equality must be accorded”.
Although the observations were made in the context of Art.16(1) and (4) the said principles are fully attracted to a special provision as contemplated in Art.15(4). The Apex Court clearly laid down that a reserved category be helped to compete equally. Learned counsel for the appellants has also placed reliance on the decision in M.Nagraj v. Union of India ([2006] 8 SCC 212). In the said case the Apex Court was examining Art.16(4A) and 16(4B) and Art.14 of the Constitution. In the above judgment, the Apex Court laid down that the basic presumption remains that it is the State who is in a best position to define merit in whatever way it consider in public employment. The following was laid down in paragraphs 45, 47, 48 and 49:
“45. The point which we are emphasizing is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact situation in each case. Therefore, 'vesting of the power' by an enabling provision may be constitutionally valid and yet 'exercise of the power' by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Art.335.
47. It is the equality "in fact" which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut - off point then it results in reverse discrimination. Anti - discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination.
48. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under written by a special justification. Equality in Art.16(1) is individual specific whereas reservation in Art.16(4) and Art.16(4A) is enabling. The discretion of the State is, however, subject to the existence of "backwardness" and "inadequacy of representation" in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Art.16(4) and 16(4A) are maintained. As stated above, equity, justice and merit (Art.335) / efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist Statewise.
49. EXTENT OF RESERVATION:
Social justice is one of the sub divisions of the concept of justice. It is concerned with the distribution of benefits and burdens throughout a society as it results from social institutions property systems, public organisations etc.
21. Another judgment relied on by the learned counsel is Jitendra Kumar Singh and Another v. State of U.P and Others ([2010] 3 SCC 119). The Apex Court in the said case was also considering the case of reservation under Art.16(4) in public employment. In paragraph 49 the following was laid down:
“49. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned with the interpretation of the 1994 Act, the instructions dated 25.03.1994 and the GO dated 26.2.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus, becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he / she secures more marks than the last candidate in the general category”.
The propositions which were laid down by the Apex Court in the above quoted judgments do not militate against the right of the State to provide for lower pass marks in SET examination as has been done in the present case. The said modified qualifying marks as prescribed in SET examination December 2013 is in full consonance with the right of State under Art.15(4) of the Constitution to make a special provision for advancement of socially and educationally backward class of society. The said classification is a valid classification. As stated on behalf of the respondents, the said pass marks have been modified to make it in conformity with the pass marks in NET examination as prescribed by the University Grants Commission. The State in following the criteria as fixed in the NET examination cannot be said to have committed any error which we may have to correct in exercise of the appellate jurisdiction. We, therefore are of the view that none of the reliefs claimed in the Writ Petitions could have been granted.
In the result, the appeals are dismissed. Respondents shall publish the result of SET examination, if not already declared. The parties shall bear their costs.
ASHOK BHUSHAN, AG. C.J.
A.M. SHAFFIQUE, JUDGE.
vsv