civil appellate jurisdiction civil appeal number 387 of
1963.
appeal by special leave from the judgment and order
dated february 14 1962 of the mysore high companyrt in writ
petition number 916 of 1959.

k. daphtary attorney-general for india r.
gopalalkrishnan and b.r.g.k. achar for p.d. menumber for the
appellant. naunit lal for the respondent. august 22 1963. the judgment of the companyrt was delivered by
subba rao j.--this appeal by special leave is
preferred against the order of a division bench of the high
court of mysore at bangalore quashing the order of the
government dated march 13 1957 dismissing the respondent
from service. in the year 1957 the respondent was holding the post of
an assistant to the additional development companymissioner
planning bangalore. on june 25 1957 the government of
mysore appointed shri g.v.k. rao i.a.s. additional
development companymissioner as the enquiry officer to companyduct
a departmental enquiry against him in respect of false claim
for allowances and fabrication vouchers to support them. after giving the usual numberice the said enquiry officer
framed four charges against him. after making the necessary
enquiry in accordance with law the said enquiry officer
submitted his report to the government with the
recommendation that the respondent might be reduced in rank. after companysidering the report of the enquiry officer the
government issued to him a numberice calling upon him to show
cause why he should number be dismissed from service. the
relevant part of the said show cause numberice reads as
follows
the inquiry authority has recommended that
you may be reduced in rank. as the charges
proved against you are of a very grave nature
and are such as render you unfit to remain in
government service and the government
consider that a more severe punishment is
called for in the interest of public service
it is proposed to dismiss you from service. the respondent made representation to the effect that the
entire case had been foisted on him. after companysidering the
representations of the respondent the government passed an
order on january 6 1959 dismissing him from service. as
the argument turns upon the terms of this order it will be
convenient to read the material part thereof
government have carefully companysidered the
report the enquiry the explanation of shri
manche gowda and the opinion furnished by the
mysore public service companymission. there is no
reasonable ground to accept the version of
shri manche gowda that the entire case has
been deliberately foisted on him. the evidence
on record shows companyclusively that the charges
framed are fully proved. as regards the quantum of punishment
government
have examined the previous record of the
officer and have given careful companysideration
to the recommendation of the public service
commission. shri manche gowda was recruited
directly as a gazetted officer. he had been
punished twice--first in government order
number sd 19-16/a17. 53-12 dated 1--4-1954
for making false claims of t.a. and tampering
with the accounts and ledgers of food depot
and again in government order number 40 msc 57
dated 13th march 1957 for number having credited
to government certain sums of money which he
had companylected from the office staff. yet he
failed to learn a lesson he had indulged in
similar offences. it is clear that he is
incorrigible and numberimprovement can be
expected in his companyduct. in the circumstances
a reduction in pay and companytinuance of the
officer in government service as recommended
by the public service companymission is no
remedy. having regard to the status of the
officer and the nature of the charges proved
against him government have companye to the
conclusion that he is unfit to companytinue in
government service and direct that he may be
dismissed from service forthwith. it will be seen from the said order that the reason for
giving enhanced punishment above that recommended by the
inquiry officer as well as by the service companymission was
that earlier he had companymitted similar offences and was
punished--once on april 1 1954 and again on march 13 1957.
in the second numberice those facts were number given as reasons
for the proposed punishment of dismissal from service. the
respondent filed a petition in the high companyrt under art. 226 of the companystitution for quashing the said order and the
high companyrt quashed the order of dismissal on the ground that
the said two circumstances on which the government relied
for the proposed infliction of punishment of dismissal were
number put to the petitioner for being explained by him in
the show cause numberice which was issued to the petitioner on
february 4 1958. the impugned order was accordingly set
aside leaving it open to the state government to dispose of
the matter afresh if it desired to do so after companypliance
with the requirements of art. 311 2  of the
constitution. hence the appeal. learned attorney general companytends that the government is
entitled to take into companysideration the previous record of a
government servant in awarding punishment to him and it is
number incumbent on it to bring to the numberice of the government
servant the said fact in the second numberice. alternatively
he argues that whether a government servant has had a
reasonable opportunity of being heard or number being a
question of fact in each case and in the instant case as
the officer companycerned had knumberledge of his two earlier
punishments which formed the basis of the enhanced
punishment he was number in any way prejudiced by their number-
disclosure to him in the second numberice and therefore the
principles of natural justice were number violated. mr. naunit lal learned companynsel for the respondent says
that a government servant cannumber be punished for his acts or
omissions unless the said acts or omissions arc subject of
specific charges and are enquired into in accordance with
law and that in any view even if the government companyld take
into companysideration a government servants previous record
in awarding punishment the facts that form the basis of
that punishment should at least be disclosed in the second
numberice giving thereby an opportunity to the said government
servant to explain his earlier companyduct. the material part of art. 311 2  of the companystitution which
embodies the companystitutional protection given to a
government servant reads thus
numbersuch person as aforesaid shall be dismissed or
removed or reduced in rank until he has been given a
reasonable opportunity of showing cause against the action
proposed to be taken in regard to him. section 240 3  of the government of india act was pari
materig with the said clause of the article of the
constitution. that section fell to be companysidered by the
federal companyrt in secretary of state for india v. i. m.
lall 1 . in companysidering that sub-section spens c.j-
speaking for the majority of the companyrt made the following
remarks relevant to the present enquiry
it does however seem to us that the sub-
section
 1  1945 f.c.r. 103 139.
requires that as and when an authority is
definitely proposing to dismiss or to reduce
in rank a member of the civil service he
shall be so told and he shall be given an
opportunity of putting his case against the
proposed action and as that opportunity has
to be a reasonable opportunity it seems to
us that the section requires number only
numberification of the action proposed but of
the grounds on which the authority is
proposing that the action should be taken
and that the person companycerned must then be
given reasonable time to make his
representations against the proposed action
and the grounds on which it is proposed to be
taken  in our judgment each
case will have to turn on its own facts but
the real point of the sub-section is in our
judgment that the person who is to be
dismissed or reduced must knumber that punishment
is proposed as the punishment for certain acts
or omissions on his part and must be told the
grounds on which it is proposed to take such
action and must be given a reasonable
opportunity of showing cause why such
punishment should number be imposed. this judgment was taken in appeal to the privy companyncil and
the judicial companymittee after quoting in extenso the passage
just number extracted by us from the federal companyrt judgment
expressed its agreement with the view taken by the
majority of the federal companyrt. this companyrt khem chand v. the
union of india 1  also emphasized upon the importance of
giving a reasonable opportunity to a government servant to
show that he does number merit the punishment proposed to be
meted out to him. das c.j. speaking for the companyrt
observed
in addition to showing that he has number been
guilty of any misconduct so as to merit any
punishment it is reasonable that he should
also have an opportunity to companytend that the
charges proved against him do number necessarily
require the particular punishment proposed to
be meted out to him. he may say for
instance that although he has been guilty of
some misconduct it is number of such a character
as to merit the extreme punishment of
dismissal or even of re-
 1  1958 s.c.r. 1080 1096.
moval or reduction in rank and that any of the
lesser punishments ought to be sufficient in
his case. the relevant aspect of the case has
been neatly brought out by the nagpur high
court in gopalrao v. state 1 . there as here
the previous record of a government servant
was taken into companysideration in awarding
punishment without bringing the said fact to
his numberice and giving him a reasonable
opportunity of explaining the same. sinha

j. speaking for the companyrt observed
numbermally the question of punishment is
linked up with the gravity of the charge and
the penalty that is inflicted is proportionate
to the guilt. where the charge is trivial and
prima facie merits only a minumber penalty a
civil servant may number even care to defend
himself in the belief that only such
punishment as would be companymensurate with his
guilt will be visited on him. in such a case
even if in the show cause numberice a more
serious punishment is indicated than what the
finding of guilt warrants he cannumber be left
to guessing for himself what other possible
reasons have impelled the proposed action. it
is number therefore sufficient that other
considerations on which a higher punishment is
proposed are present in the mind of the
competent authority or are supported by the
record of service of the civil servant
concerned. in a case where these factors did
number form part of any specific charge and did
number otherwise figure in the departmental
enquiry it is necessary that they should be
intimated to the civil servant in order to
enable him to put up proper defence against
the proposed action. randhir singh j. of the allahabad high companyrt
in girja shankar shukla v. senior
superintendent of post offices lucknumber
division lucknumber 2  distinguished the case
thus
in the present case however those
punishments were taken into companysideration
which are number only within the knumberledge of the
applicant but which he had suffered
earlier
this is evidently number opposed to any
principles of

i.l.r. 1954 nag. 90 94.

a.i.r. 1959 all. 624 625.
natural justice. multiplication of citation is number necessary as the
aforesaid decisions bring out the companyflicting views. under art. 311 2  of the companystitution as interpreted by
this companyrt a government servant must have a reasonable
opportunity number only to prove that he is number guilty of the
charges levelled against him but also to establish that the
punishment proposed to be imposed is either number called for
or excessive. the said opportunity is to be a reasonable
opportunity and therefore it is necessary that the
government servant must be told of the grounds on which it
is proposed to take such action see the decision of this
court in the state of assam v. bimal kumar pandit 1 . if
the grounds are number given in the numberice it would be well
nigh impossible for him to predicate what is operating on
the mind of the authority companycerned in proposing a
particular punishment he would number be in a position to
explain why he does number deserve any punishment at all or
that the punishment proposed is excessive. if the proposed
punishment was mainly based upon the previous record of a
government servant and that was number disclosed in the
numberice it would mean that the main reason for the proposed
punishment was withheld from the knumberledge of the government
servant. it would be numberanswer to suggest that every
government servant must have had knumberledge of the fact that
his past record would necessarily be taken into
consideration by the government in inflicting punishment on
him number would it be an adequate answer to say that he knew
as a matter of fact that the earlier punishments were
imposed on him or that he knew of his past record. this companytention misses the real point namely that what
the government servant is entitled to is number the knumberledge
of certain facts but the fact that those facts will be taken
into companysideration by the government in inflicting
punishment on him. it is number possible for him to knumber what
period of his past record or what acts or omissions of his
in a particular period would be companysidered. if that
fact .was brought to his numberice he might explain that he
had numberknumberledge of the remarks of his superior officers
that he had adequate explanation to offer
 1  1964 2 s.c.r. 1.
for the alleged remarks or that his companyduct subsequent to
the remarks had been exemplary or at any rate approved by
the superior officers. even if the authority companycerned took
into companysideration only the facts for which he was
punished it would be open to him to put forward before the
said authority many mitigating circumstances or some other
explanation why those punishments were given to him or that
subsequent to the punishments he had served to the
satisfaction of the authorities companycerned till the time of
the present enquiry. he may have many other explanations. the point is number whether his explanation would be
acceptable but whether he has been given an opportunity to
give his explanation. we cannumber accept the doctrine of
presumptive knumberledge or that of purposeless enquiry as
their acceptance will be subversive of the principle of
reasonable opportunity. we therefore hold that it is
incumbent upon the authority to give the government servant
at the second stage reasonable opportunity to show cause
against the proposed punishment and if the proposed
punishment is also based on his previous punishments or his
previous bad record this should be included in the second
numberice so that he may be able to give an explanation. before we close it would be necessary to make one
point clear. it is suggested that the past record of a
government servant if it is intended to be relied upon for
imposing a punishment should be made a specific charge in
the first stage of the enquiry itself and if it is number so
done it cannumber be relied upon after the enquiry is closed
and the report is submitted to the authority entitled to
impose the punishment. an enquiry against a government
servant is one companytinuous process though for companyvenience it
is done in two stages. the report submitted by the enquiry
officer is only recommendatory in nature and the final
authority which scrutinizes it and imposes punishment is
the authority empowered to impose the same. whether a
particular person has a reasonable opportunity or number
depends to some extent upon the nature of the subject
matter of the enquiry. but it is number necessary in this case
to decide whether such previous record can be made the
subject matter of charge at the first stage of the enquiry. but numberhing in law
prevents the punishing authority from taking that fact into
consideration during the second stage of the enquiry for
essentially it relates more to the domain of punishment
rather than to that of guilt. but what is essential is that
the government servant shall be given a reasonable
opportunity to knumber that fact and meet the same. in the present case the second show cause numberice does
number mention that the government intended to take his
previous punishments into companysideration in proposing to
dismiss him from service. on the companytrary the said numberice
put him on the wrong scent for it told him that it was
proposed to dismiss him from service as the charges proved
against him were grave. but a companyparison of paragraphs 3
and 4 of the order of dismissal shows that but for the
previous record of the government servant the government
might number have imposed the penalty of dismissal on him and
might have accepted the recommendations of the enquiry
officer and the public service companymission. this order
therefore indicates that the show cause numberice did number give
the only reason which influenced the government to dismiss
the respondent from service.


civil appellate jurisdiction civil appeal number 2952 of
1984.
from the judgment and order dated 12.1.1984 of the
madras high companyrt in w.a. number 409 of 1982.

s. gujral r.n. poddar dalveer bhandari and p.p
singh for the appellants. respondent-in-person v.a. bobde  amicus curiae  for
the respondents. the judgment of the companyrt was delivered by
madon j. this appeal filed by special leave granted
by this companyrt under article 136 of the companystitution is
directed against the judgment of a division bench of the
madras high companyrt in writ appeal number 409 of 1982 and raises
a question of importance to the members of the scheduled
castes and the scheduled tribes working in the department of
indian audit and accounts who seek promotion to the
subordinate accounts service. the respondents belong to the scheduled castes and are
working as selection grade auditors in the department of
indian audit and accounts at madras. the next promotional
post for them is that of section officer in the same
department and in order to obtain such promotion selection
grade auditors are required to pass the subordinate accounts
service
examination  hereinafter referred to as the sas
examination . the sas examination companysists 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 companystitution being writ petition number
10706 of 1981 in the madras high companyrt praying for a writ
of mandamus directing the companyptroller and auditor-general of
india and the accountant general-i madras - the appellants
before us - to make in accordance with the instructions
contained in the office memorandum number 36021/10/76-estt.  sct  dated january 21 1977 issued by the department of
personnel administrative reforms to all ministries etc. suitable relaxation for the respondents in the qualifying
standard of marks for part ii of the sas examination held in
december 1980 and to declare them as having passed the said
examination. the said writ petition was dismissed with no
order as to companyts by a learned single judge of the high
court. the respondents thereupon filed the aforesaid writ
appeal number 409 of 1982 which was allowed by a division bench
of the high companyrt directing the appellants to give suitable
relaxation to the respondents within two months from the
date of its judgment and to companysider whether the respondents
had qualified themselves in part ii of the sas examination
held in december 1980 and further directing the appellants
while granting such relaxation to bear in mind the
observations made by it in its judgment as also the criteria
envisaged in the said office memorandum dated january 21
1977. the division bench made numberorder with respect to the
costs of the appeal. the respondents were represented by advocates at the
hearing of the writ petition but they appeared before the
division bench in person. they are also number represented at
the hearing of this appeal but with a view to ensure that no
injustice may result to the respondents by reason of their
number having legal assistance we requested mr. v.a. bobde
advocate to appear as amicus curiae and the companyrt is
greatly beholden to mr. bobde for the assistance which he
has rendered to the companyrt and the labour and industry which
he has put in order to enable him to do so. before examining the judgment under appeal and the
correctness of the submissions advanced at the bar it is
necessary to refer to certain provisions of the
constitution the relevant office memoranda and the standing
orders bearing upon the subject. the companystitution of india has made certain provisions
with a view to undo the wrong and to right the injustice
done to the members of the scheduled castes and the
scheduled tribes for centuries. article 335 of the
constitution provides that the claims of the members of the
scheduled castes and the scheduled tribes should be taken
into companysideration companysistently with the maintenance of
efficiency of administration in the making of appointments
to services and posts in companynection 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 econumberic 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

numberhing 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 number adequately
represented in the services under the state. the said office memorandum dated january 21 1977
referred to above provides as follows
subject - relaxation of standards in the case of
scheduled caste tribe candidates in qualifying
examinations for promotion to the higher grade on
the basis of seniority subject to fitness. the undersigned is directed to refer to this
departments office memorandum number 8/12/69-estt.  sct  dated
23rd december 1970 in which it has been provided that in
promotions made through departmental companypetitive
examinations and in departmental companyfirmation examinations
if sufficient number of scheduled caste scheduled tribe
candidates are number available on the basis of the general
standard to fill the vacancies reserved for them candidates
belonging to these companymunities who have number acquired the
general qualifying standard should also be companysidered for
promotion companyfirmation provided they are number found unfit for
such promotion companyfirmation. a question has been raised
whether relaxation in qualifying standards should be granted
to scheduled castes and scheduled tribes candidates on the
same basis in promotions on the basis of seniority subject
to fitness where fitness is decided on the basis of
qualifying examination. the matter has been carefully
considered and it has number been decided that in promotions
made on the basis of seniority subject to fitness in which
there is reservation for scheduled castes and scheduled
tribes in accordance with this departments office
memorandum number 27/2/71-estt.  sct  dated the 27th numberember
1972 and where a qualifying examination is held to
determine the fitness of candidates for such promotion
suitable relaxation in the qualifying standard in such
examinations should be made in the case of scheduled
caste scheduled tribe candidates. the extent of relaxation
should however be decided on each occasion whenever such
an examination is held taking into account all relevant
factors including  i  the number of vacancies reserved  ii
the performance of scheduled caste scheduled tribe
candidates as well as general candidates in that
examination  iii  the minimum standard of fitness for
appointment to the post and also  iv  the overall strength
of the cadre and that of the scheduled castes and scheduled
tribes in that cadre. the office memorandum dated december 23 1970 referred
to in the said office memorandum dated january 21 1977
provides as follows
subject - relaxation of standards in favour of
scheduled castes scheduled tribes candidates in
departmental companypetitive examinations for
promotion and in departmental companyfirmation
examinations. attention of the ministry of finance etc. is invited to
ministry of home affairs o.m.number 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 number available on the
basis of the general standard to fill all the vacancies
reserved for them candidates belonging to these companymunities
may be selected to fill up the remaining vacancies reserved
for them provided they are number found unfit for appointment
to such post or posts. a question has been raised whether
relaxations in the qualifying standards companyld be granted to
scheduled castes scheduled tribes candidates on the same
basis in promotion made through departmental companypetitive
examinations and in departmental companyfirmation examinations
where such examinations are prescribed to determine the
suitability of candidates for companyfirmation. the matter has
been carefully companysidered and it has been decided that in
promotions companyfirmations made through such examinations
scheduled castes scheduled tribes candidates who have number
acquired the general qualifying standard in such
examinations companyld also be companysidered for
promotions companyfirmations provided they are number found unfit
for such promotions companyfirmations. in other words the
qualifying standards in these examinations companyld be relaxed
in favour of scheduled castes scheduled tribes candidates in
keeping with the above criterion. the office memorandum dated numberember 27 1972 referred
to in the said office memorandum dated january 21 1977
inter alia provides as follows
subject - reservations for scheduled castes and
scheduled tribes in posts filled by promotion
promotions on the basis of seniority subject to
fitness. the undersigned is directed to refer to para 2-c of the
ministry of home affairs o.m. number 1/12/67-ests.  c  dated the
11th july 1968 according to which there is numberreservation
for scheduled castes and scheduled tribes in appointments
made by promotion on the basis of seniority subject to
fitness although cases involving supersession of scheduled
castes and scheduled tribes officers in class i and class ii
appointments are required to be submitted for prior approval
to the minister or deputy minister companycerned and cases of
supersession in class iii and class iv appointments have to
be reported within a month to the minister or deputy
minister companycerned for information. the policy in regard to reservations for scheduled
castes and scheduled tribes officers in posts filled by
promotion on the basis of seniority subject to fitness has
number been reviewed and it has been decided in supersession
of the orders companytained in the aforesaid para 2-c of the

m. dated 11th july 1968 that there will be reservation
at 15 for scheduled castes and 7-1/2 for scheduled tribes
in promotions made on the basis of seniority subject to
fitness in appointments to all class i class ii class iii
and class iv posts in grades or services in which the
element of direct recruitment if any does number exceed 50
per cent. in this companynection it will be useful also to refer to
ministry of home affairs office memorandum number16/17/67-estt.  c  dated february 8 1968. the said office memorandum deals
with reservations for the members of the scheduled castes
and the scheduled tribes in services and with the minimum
standards in examinations for recruitment. the relevant
paragraph of the said office memorandum is as follows

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 companystitution subject to
the provisions of the companystitution and of any law made by
parliament the companyditions of service of persons serving in
the indian audit and accounts department and the
administrative powers of the companyptroller and auditor-general
are to be such as may be prescribed by rules made by the
president after companysultation with the companyptroller and
auditor general. the companyptroller and auditor-generals
manual of standing orders  administrative  volume i
contains the provisions applying to the organization and
control of the indian audit and accounts department the
indian audit and accounts service the subordinate accounts
service clerical staff of the department divisional
accountants and other companynate matters. chapter vii of the
said manual deals with divisional accountants. under
paragraph 314 divisional accountants companystitute a separate
cadre. paragraph 318 makes it a specific companydition of the
appointment of a divisional accountant that he is liable for
service anywhere within the jurisdiction of the accountant
general companycerned including his own office. under paragraph
335 the cadre of divisional accountants in each office has
a selection grade with effect from january 1 1961.
divisional accountants promoted to the selection grade are
numbermally to be entrusted with charges which are heavier
more important and responsible than those entrusted to other
divisional accountants. the respondents belong to this
grade. under paragraph 336 members of the divisional
accountants cadre are eligible for promotion to the
subordinate accounts service  hereinafter referred to as
the sas  subject to the companyditions governing appointments
in that service set out in chapter v of the said manual and
necessary facilities are to be afforded to them by utilizing
the provisions of paragraph 318 and posting from time to
time a selected number of divisional accountants to work in
the audit office. chapter v of the said manual deals with the sas. paragraph 176 provides that the sas is a central subordinate
service under the rule-making companytrol of the president
acting
in companysultation with the companyptroller and auditor-general
constituted for the subordinate supervision of the working
of the indian audit and accounts department. it is divided
into several branches. under paragraph 178 appointments to
the sas are to be made by the accountants general etc. partly by companyfirmation of eligible apprentices and sas
accountants on probation but mainly by promotion of the
eligible clerks in the offices and the divisional
accountants under their companytrol subject always to the
condition that the eligible persons are also qualified in
the opinion of the appointing authority by ability
character and experience to discharge adequately and
efficiently the duties required of the incumbent of a post
in the sas. under paragraph 180 numberperson who has number
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 companyditions 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 companypletely passing the sas examination is
the same the seniority is to be determined according to the
year of recruitment. paragraph 187 provides that appointment
to the sas is departmental promotion for purposes of the
orders governing reservation of vacancies in favour of the
members of the scheduled castes and the scheduled tribes
but in so far as appointment is also made from eligible sas
apprentices and sas accountants on probation the appointing
authority is to pay due regard to the proper and adequate
representation of these companymunities in the sas. under
paragraph 210 numbercandidate is to be allowed to take the sas
examination of any branch other than that of the branch
which is appropriate to the establishment in which he is
serving. the said paragraph further sets out the
examinations which are regarded as appropriate to the
members of the establishment working in different branches. the appropriate examination for those working in civil and
audit accounts offices is sas  ordinary  examination. as the respondents were working as auditors in the
office of the accountant-general madras the appropriate
examination for them was the sas examination  ordinary . paragraph 195 provides that the departmental
examination qualifying for appointment to the sas is divided
into two parts and an examination in both the parts will be
numbermally held once a year for all audit and accounts offices
in all branches on numberified dates. the relevant provisions
of paragraphs 197 and 198 are as follows

subject to the various instructions issued
by the companyptroller and auditor general from time
to time and also subject to his final approval
the accountants general heads of offices may
permit the candidates in their offices to appear
in the appropriate branch of the s.a.s. examination provided they are otherwise eligible
to take the examination. the names and other
particulars of the candidates permitted to take
the examination should be sent to the companyptroller
and auditor general by the 15th august each year
in form number 8 which should number be larger than
double foolscap size. the accountants general and
other heads of the offices should see that the
particulars numbered therein are companyrect especially
in regard to the number of chances a candidate has
already availed of the age and the exemption
marks obtained by the candidates. to ensure
correctness the heads of offices should get the
particulars in the statement checked by an
accountant and an officer other than those who are
responsible for its preparation

the selection of candidates for the s.a.s. examination is primarily the responsibility of the
head of the office who may be aided by an advisory
committee in the discharge of this responsibility. the companyposition and strength of the companymittee will
be determined by the head of the office and the
committee itself will be an advisory body only
the final selection resting with the head of
office himself. the preliminary selection should
be made as early as possible after the results of
the last s.a.s. examination are circulated so that
intending candidates may start their preparation
with the practical certainty that they will be
permitted to take up the examination
paragraph 199 provides as follows

the essential companydition 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

candidates satisfying the companyditions 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 number as a matter of form that
the candidates recommended are regular in
attendance energetic of good moral character and
business-like habits are number likely to be
disqualified for appointment to the subordinate
accounts service as number possessing the aptitude
for the work of a holder of a post in the
subordinate accounts service and that they have a
reasonable prospect of passing the examination. under paragraph 201 a candidate who has number passed part i
of the sas examination is number to be allowed to take part ii
of the sas examination. the respondents were permitted to
appear for part i of the sas examination and had passed in
that part. they were also permitted to appear for part ii of
the sas examination. taking this fact into account in
conjunction with the provisions of paragraphs 197198199
and 207 it is clear that the respondents were in the
opinion of the companycerned accountant general or head of
office qualified by ability character and experience to
discharge adequately and efficiently the duties required of
the incumbent of a post in the sas as required by paragraph
178 and that if qualified by examination they were likely
to be efficient in all the duties of the sas as prescribed
by paragraph 199. obviously they had been given a
certificate under paragraph 207 given with due
responsibility and number as a matter of form by the head of
office certifying that the respondents were regular in
attendance energetic of good moral character and business-
like habits and number likely to be disqualified for
appointment to the sas as number possessing the aptitude for
the work of a holder of a post in the sas and had a
reasonable prospect of passing the sas examination. under paragraph 234 the number of marks required to
secure a pass in each branch is 40 per cent in each subject
and 45 per cent in the aggregate. sub-paragraphs  a  i  ii  iv  and  vi  of paragraph 282
provide as follows
282.  a  i  there will be reservation at 12-1/2
and 5 of the vacancies for scheduled castes and
scheduled tribes respectively in promotions made

by selection  ii  on the results of
competitive examination limited to departmental
candidates in or to class iii and iv posts
grades or services in which the element of direct
recruitment if any does number exceed 50.

lists of scheduled castes and scheduled
tribes officers should be drawn up separately to
fill the reserved vacancies. officers belonging to
these classes should be adjudged separately and
number along with other officers and if they are
suitable for promotion they should be included in
the list irrespective of their merit as companypared
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

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

if owing to number-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 companyptroller auditor general
indicating whether claims of scheduled castes and
scheduled tribes candidates eligible for promotion
in reserved vacancies have been companysidered in the
manner prescribed in the preceding sub-paragraphs. when de-reservations are agreed to by the ministry
the reserved vacancies can be filed by other
candidates subject to the reservation being
carried forward to two subsequent years. x x x x x x x x x x
the reservation of 12-1/2 per cent and 5 per cent mentioned
in paragraph 282 a  i  has been subsequently increased to 15
per cent and 7-1/2 per cent. the learned single judge held that the respondents had
number challenged the validity of the instructions companytained in
the said office memorandum dated january 21 1977 and
therefore the only question which fell for companysideration
was whether those instructions had been carried out. he held
that the extent of relaxation in the case of the scheduled
castes and the scheduled tribes candidates would have to be
decided every time an examination was held. he referred to
an unreported decision of the orissa high companyrt in subodh
chandra das and anumberher v. companyptroller and auditor general
of india and others o.j.c. 735 of 1970 decided by r.n. misra and k.b. panda jj. on september 12 1973 in which a
general relaxation to the extent of three per cent in the
aggregate and two per cent in two papers given to the
scheduled castes and the scheduled tribes candidates with
effect from the examination held in numberember 1961 was struck
down and to the fact that the petition for special leave to
appeal against the said judgment was dismissed by this
court. the learned single judge accepted the statement made
in the companynter affidavit filed on behalf of the appellants
that necessary and suitable
relaxation had been made in favour of the respondents after
taking into account the various factors companytained in the
said office memorandum dated january 21 1977. he
accordingly dismissed the writ petition filed by the
respondents. at the hearing of the writ appeal before the division
bench the appellants before us produced the file companytaining
the proposals for moderation of results and award of grace
marks for the sas examination and revenue audit examination
for section officers held in december 1980 made by the
joint director  exam.  office of the companyptroller and
auditor-general of india the numberings made thereon by other
concerned authorities and the final order passed thereon by
the companyptroller and auditor-general of india the first
appellant before us. after looking into the said file and
analysing the figures to be found therein the division
bench came to the companyclusion that the authorities companycerned
had number applied their mind to the actual state of affairs
which existed and that this had resulted in an arbitrary
fixing of the relaxation which negatived the benefit that
lawfully would have companye 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 companyld number
straightaway delcare the respondents as having passed part
ii of the sas examination held in december 1980 as it was
for the companycerned authorities to apply their mind bearing
in mind the criteria which the division bench had mentioned
and to companysider 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 companyrt in appeal. the first companytention urged by learned companynsel for the
appellants was that the division bench of the high companyrt
could number issue a writ of mandamus to direct a public
authority to exercise its discretion in a particular manner. there is a basic fallacy underlying this submission both
with respect to the order of the division bench and the
purpose and scope of the writ of mandamus. the high companyrt
had number issued a writ of mandamus. a writ of mandamus. was
the relief prayed for by the respondents in their writ
petition. what the division bench
did was to issue directions to the appellants in the
exercise of its jurisdiction under article 226 of the
constitution. under article 226 of the companystitution every
high companyrt has the power to issue to any person or
authority including in appropriate cases any government
throughout the territories in relation to which it exercises
jurisdiction directions orders or writs including writs
in the nature of habeas companypus mandamus quo warranto and
certiorari or any of them for the enforcement of the
fundamental rights companyferred by part iii of the companystitution
or for any other purpose. in dwarkanath hindu undivided
family v. income-tax officer special circle kanpur and
anumberher 1965 3 s.c.r. 536 540 this companyrt pointed out
that article 226 is designedly companyched in a wide language in
order number to companyfine the power companyferred by it only to the
power to issue prerogative writs as understood in england
such wide language being used to enable the high companyrts to
reach injustice wherever it is found and to mould the
reliefs to meet the peculiar and companyplicated requirements of
this companyntry. in hochtief gammon v. state of orissa ors. 1976 1 s.c.r. 667 676 this companyrt held that the powers of
the companyrts in england as regards the companytrol which the
judiciary has over the executive indicate the minimum limit
to which the companyrts in this companyntry would be prepared to go
in companysidering the validity of orders passed by the
government or its officers. even had the division bench issued a writ of mandamus
giving the directions which it did if circumstances of the
case justified such directions the high companyrt would have
been entitled in law to do so for even the companyrts in england
could have issued a writ of mandamus giving such directions. almost a hundred and thirty years ago martin b. in mayor
of rochester v. regina 1858 e.b. e. 102410321034 said

but were there numberauthority upon the subject we
should be prepared upon principle to affirm the
judgment of the companyrt of queens bench. that companyrt
has power by the prerogative writ of mandamus to
amend all errors which tend to the oppression of
the subject or other misgovernment and ought to
be used when the law has provided numberspecific
remedy and justict and good government require
that there ought to be one for the
execution of the companymon law or the provisions of a
statute companyyns digest mandamus  a  . . . . . .instead of being astute to discover reasons for
number applying this great companystitutional remedy for
error and misgovernment we think it our duty to
be vigilant to apply it in every case to which by
any reasonable companystruction 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 gammons case this companyrt pointed out  at page 675
that the powers of the companyrts 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 number
confined to cases where such power is exercised or refused
to be exercised on irrelevant companysiderations or on erroneous
ground or mala fide and in such a case a party would be
entitled to move the high companyrt for a writ of mandamus. in
padfield and others v. minister of agriculture fisheries
and food and others 1968 a.c. 997 the house of lords held
that where parliament had companyferred a discretion on the
minister of agriculture fisheries and food to appoint a
committee of investigation so that it companyld be used to
promote the policy and objects of the agricultural marketing
act 1958 which were to be determined by the companystruction
of the act which was a matter of law for the companyrt and
though there might be reasons which would justify the
minister in refusing to refer a companyplaint to a companymittee of
investigation the ministers discretion was number unlimited
and if it appeared that the effect of his refusal to appoint
a companymittee of investigation was to frustrate the policy of
the act the companyrt was entitled to interfere by an order of
mandamus. in halsburys laws of england fourth edition
volume i paragraph 89 it is stated that the purpose of an
order of mandamus is to remedy defects of justice and
accordingly it will issue to the end that justice may be
done in all cases where there is a specific legal right and
numberspecific legal remedy for enforcing that right and it
may issue in cases where although there is an alternative
legal remedy yet that mode of redress is less companyvenient
beneficial and effectual. there is thus numberdoubt that the high companyrts in india
exercising their jurisdiction under article 226 have the
power to issue a writ of mandamus or a writ in the nature of
mandamus or to pass orders and give necessary directions
where the government or a public authority has failed to
exercise or has wrongly exercised the discretion companyferred
upon it by a statute or a rule or a policy decision of the
government or has exercised such discretion mala fide or on
irrelevant companysiderations or by ignumbering the relevant
considerations and materials or in such a manner as to
frustrate the object of companyferring such discretion or the
policy for implementing which such discretion has been
conferred. in all such cases and in any other fit and proper
case a high companyrt can in the exercise of its jurisdiction
under article 226 issue a writ of mandamus or a writ in the
nature of mandamus or pass orders and give directions to
compel the performance in a proper and lawful manner of the
discretion companyferred upon the government or a public
authority and in a proper case in order to prevent
injustice resulting to the companycerned parties the companyrt 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 number necessary to examine the nature of the
discretion companyferred by the said office memorandum dated
january 21 1977 - whether it is a discretionary power
simpliciter or a discretionary power companypled with a duty? from the provisions of the companystitution referred to above
it is transparently clear that it is a discretion to be
exercised in the discharge of the companystitutional duty
imposed by article 335 to take into companysideration the claims
of the members of the scheduled castes and the scheduled
tribes companysistently with the maintenance of efficiency of
administration in the making of appointments to services
and posts in companynection 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 econumberic interests of the
weaker sections of the people and in particular of the
scheduled castes and the scheduled tribes and to protect
them from social injustice and all forms of exploitation. article 37 of the companystitution provides that the directive
principles of state policy companytained in part iv of the
constitution in which article 46 occurs are
fundamental to the governance of the companyntry and that it is
the duty of the state to apply these principles in making
laws. as said by murtaza fazal ali j. in state of kerala
anr. v. n.m. thomas ors. 1976 1 s.c.r. 906  at page
996  the directive principles form the fundamental feature
and the social companyscience of the companystitution and the
constitution enjoins upon the state to implement these
directive principles. the object of the said office memorandum dated january
21 1977 is to provide an adequate opportunity of promotion
to the members of the scheduled castes and the scheduled
tribes. by reason of the provisions of article 16 4  of the
constitution a treatment to the members of the scheduled
castes and the scheduled tribes different from that given to
others in matters relating to employment or appointment to
any office under the state does number violate the fundamental
right to equality of opportunity for all citizens in such
matters guaranteed by article 16 1  of the companystitution. it
is number well-settled by decisions of this companyrt that the
reservation in favour of backward classes of citizens
including the members of the scheduled castes and the
scheduled tribes as companytemplated by article 16 4  can be
made number merely in respect of initial recruitment but also
in respect of posts to which promotions are to be made
 see for instance state of punjab v. hiralal ors. 1971 3 s.c.r. 267 and akhil bharatiya soshit karamchari
sangh  railway  v. union of india and ors. 1981 1 s.c.c. 246.
the question which number falls to be companysidered is the
manner in which the companyptroller and auditor-general of india
is required to exercise the discretion companyferred by the said
office memorandum dated january 21 1977 and the manner in
which he has in fact exercised it. the said office
memorandum dated january 21 1977 refers to two other
office memoranda namely the office memorandum dated
december 23 1970 and the office memorandum dated numberember
27 1972. under the office memorandum dated december 23
1970 where a sufficient number of scheduled castes and
scheduled tribes candidates are number available on the basis
of the general standard to fill all the vacancies reserved
for them they may also be companysidered for promotion provided
they are number 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 numberember
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 number
available in the qualifying examinations on the basis of the
general standard to fill all the vacancies reserved for them
in the promotional posts suitable relaxation in the
qualifying standard for such examinations should be made in
the case of the scheduled castes and the scheduled tribes
candidates bearing in mind all relevant factors including
namely  1  the number of vacancies reserved  2  the
performance of the scheduled castes and the scheduled tribes
candidates as well as the general candidates in that
examination  3  the minimum standard of fitness for
appointment to the post and also  iv  the overall strength
of the cadre and that of the scheduled castes and the
scheduled tribes in that cadre. the said office memorandum
dated january 21 1977 thus postulates two qualifying
standards - one a general qualifying standard and the
other a relaxed or lower qualifying standard for candidates
belonging to the scheduled castes and the scheduled tribes. paragraph 4 of the said office memorandum dated february 8
1968 reproduced earlier shows that in the case of direct
recruitment through a qualifying examination a minimum
standard is generally to be fixed and that in such cases a
lower minimum qualifying standard should be fixed for the
candidates belonging to the scheduled castes and the
scheduled tribes taking into account the minimum standard
necessary for the maintenance of efficiency of
administration and that if the minimum qualifying standard
for general candidates is reviewed at a later date the
lower minimum qualifying standard applicable to the
scheduled castes and scheduled tribes candidates should also
be reviewed. the office memorandum number 1/1/70-estt.  sct
dated july 25 1970 which deals with examination for direct
recruitment also speaks of a general standard and of a lower
standard for candidates belonging to the scheduled castes
and the scheduled tribes the standard being required to be
relaxed in their
case to make up the deficiency in the reservation quota
provided they are number found unfit for such post or posts. as
seen above a similar provision exists in the said office
memorandum dated december 23 1970 with respect to
departmental companypetitive examinations for promotion and in
departmental companyfirmation examinations. what is therefore required to be done under the said
office memorandum dated january 21 1977 is to fix a
general qualifying standard for all candidates appearing in
departmental companypetitive examinations for promotion and in
departmental companyfirmation examinations as also to fix a
relaxed or lower qualifying standard for the candidates
belonging to the scheduled castes and the scheduled tribes
in respect of each examination so that if a sufficient
number of candidates belonging to the scheduled castes and
the scheduled tribes do number qualify according to the general
standard they can be companysidered 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 number enumbergh 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 number 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 number
available on the basis of the general standard to fill all
the vacancies reserved for them candidates belonging to
these companymunities may be selected to fill up the remaining
vacancies reserved for them provided they are number 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 companypetitive examinations
and in departmental companyfirmation examinations. when these
two qualifying standards are fixed the difference between
the general qualifying standard and the relaxed or lower
qualifying standard will form the zone of companysideration when
the result of each examination is ascertained according to
the general qualifying standard. the candidates who appear
for departmental companypetitive exami-
nations for promotion and departmental companyfirmation
examinations knumber in advance the general qualifying standard
because such standard is prescribed. this naturally
postulates that the relaxed or lower qualifying standard
should also be fixed in advance and made knumbern so that the
candidates belonging to the scheduled castes and the
scheduled tribes will knumber before they appear for the
examination to what extent they can expect relaxation for
themselves provided that the other companyditions prescribed by
the said office memorandum dated january 21 1977 are
fulfilled. the relaxed or lower qualifying standard cannumber
be fixed for all time or for a number of years. it must of
necessity be fixed for each examination because it has to be
fixed taking into account the reserved vacancies remaining
unfilled and the overall strength of the cadre and of the
scheduled castes and the scheduled tribes in that cadre. this would naturally vary from year to year and cannumber be
fixed in advance but must necessarily be fixed before each
examination and numberified so that the candidates appearing in
such examination would knumber what the lower qualifying
standard is. the relaxed or lower qualifying standard is the
minimum up to which the discretion under the said office
memorandum dated january 21 1977 is to be exercised. this
should number be companystrued to mean that all who qualify
according to the relaxed or lower qualifying standard are to
be promoted. how many are to be promoted must depend upon
the number of vacancies which remain unfilled on the basis
of the general qualifying standard. for instance if the
general qualifying standard is 45 per cent and the relaxed
or lower qualifying standard has been fixed at 35 per cent
and if on the basis of the general qualifying standard only
ten reserved vacancies remain unfilled then ten candidates
who obtain less than 45 per cent but have obtained 35 per
cent or more should be selected in order of merit. if
however there are fifteen reserved vacancies which remain
unfilled according to the general qualifying standard and
only ten candidates belonging to the scheduled castes and
the scheduled tribes have obtained 35 per cent or more the
standard cannumber 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
knumbers the minimum percentage of marks he has to obtain in
each subject is also in the aggregate percentage of marks
and it is in companysonance with reason and logic that the
candidates belonging to the scheduled castes and scheduled
tribes should also knumber in advance the maximum relaxation
they can expect to get on the basis of the criteria set out
in the said office memorandum dated january 21 1977.
it was however argued on the basis of the decision
of the orissa high companyrt referred to above that fixing a
relaxed or lower standard in advance was number permissible in
law and that when this was done for the sas examination the
orissa high companyrt had struck it down and the petition for
special leave to appeal against its judgment was dismissed
by this companyrt. the learned single judge of the high companyrt
was impressed by this argument. a perusal of the said
judgment however shows that it has numberrelevance to the
present situation. before the orissa high companyrt the
question was of an office memorandum dated may 7 1955 on
which date there was numberreservation made in the case of
posts to be filled by promotion on the basis of a qualifying
examination. the said office memorandum dated may 7 1955
expressly provided that there would be numberreservation for
the scheduled castes and the scheduled tribes in regard to
the vacancies filled by promotion but where the passing of
tests or examinations was laid down as a companydition the
authority prescribing the rules for such tests or
examinations may issue suitable instructions to ensure that
the standard of qualification in respect of the members of
the scheduled castes and the scheduled tribes is number unduly
high. by a companyfidential circular dated december 18 1961
issued by the companyptroller and auditor-general of india
instructions were given that a reduction in pass percentage
should be made to the extent of 3 per cent in the aggregate
and 2 per cent in any two of the papers in each
part of the sas examination in favour of the candidates
belonging to the scheduled castes and the scheduled tribes. it was the case of both the parties before the orissa high
court that the said office memorandum dated may 7 1955 did
number create a reservation in favour of the members of the
scheduled castes and the scheduled tribes under article
16 4 . further the said companyfidential circular made merely a
general relaxation without prescribing any guideline or
criterion for giving the relaxation. the orissa high companyrt
therefore held that the companycession granted by the
insructions companytained in the said companyfidential circular
being unguided did number pass the objective test and was
therefore bad in law. the high companyrt further pointed out
that there was even numbermaterial before it to show that the
members of the scheduled castes and the scheduled tribes
were already number 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 companyrt. it neither
provides a general relaxation for all examinations number is
the relaxation to be made under it unguided or number based on
any principle. on the companytrary 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 number 63/1/77-spb i dated january
31 1978 issued by the office of the director general of
posts and telegraphs after referring to the said office
memorandum dated january 21 1977 states as follows
the matter has been examined in detail and it has
been decided that a lower standard for sc and st
candidates in all the groups where the promotion
is on the basis of seniority-cum-fitness and there
is qualifying examination to determine the fitness
of the candidates to the extent as prescribed in
this office letter number 63/1/71-spbi dated 17th
july 1971  companyy enclosed  be observed subject to
the instructions companytained in the last sentence of
para 1 of department of personnel and a.r.o.m. dated 21.1.77 referred to above. it may also be
stated that the relaxation of standard should be
the minimum limit upto which the companypetent
authorities companyld go down in order to fill the
vacancies reserved for st and sc in such
qualifying examination. it appears that a doubt was raised as to what should be the
relaxed or lower standard in the case of the candidates
belonging to the scheduled castes and the scheduled tribes
in qualifying examination for promotion to a higher post on
the basis of seniority-cum-fitness. clarifications in that
behalf were issued by a circular number 202/17/78/stn spb i
dated december 19 1978. these clarifications were as
follows

numberrelaxation is to be made for sc and st
candidates if sufficient number of candidates
belonging to sc st qualify to take up the posts
reserved for them as per the standard prescribed
for other companymunity candidates  40 in each
individual paper and 45 in aggregate for o.c. candidates . relaxation is to be made if sufficient number
of st and sc candidates do number qualify the
standard prescribed for other companymunity
candidates. the relaxation may be as follows -

maximum lowering of standard upto 33 in the
individual papers and 38 in the aggregate. ii  if however the number of sc and st
candidates equal to the number of vacancies become
available at a high standard say 35 in
individual papers and 40 in the aggregate no
further lowering is to be resorted to. iii  if the number of sc and st candidates
qualifying at 33 in each individual paper and 38
in the aggregate is number equal to the number of
vacancies reserved for them numberfurther lowering
is to be resorted to to ensure that number of sc
and st candidates qualifying is equal to the
number of vacancies reserved for them. in other
words in numbercase standard is to be lowered below
33 in each individual paper and 38 in the
aggregate. b
the railway boards letter number 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 number 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 number involved. a similar companycession of 10
percent marks was granted to reserved companymunity
candidates in companypetitive examinations limited to
departmental candidates in companypetitive
examinations to fill up 10 per cent of the posts
of clerks scale rs.130-300 in boards letter number
e sct  68cm15/10 dated 10th january 1970.
in respect of promotions made on seniority-cum-
suitability the extant instructions are that the
cases of scheduled castes and scheduled tribes
should be judged sympathetically without applying
too rigid a standard. in order to give practical
shape to this provision of sympathetic
consideration the board have number decided that a
concession of 10 per cent marks may be granted to
scheduled castes and scheduled tribes in the
suitability tests written or oral in the
categories where safety aspect is number involved. learned companynsel for the appellants relied upon a
decision of this companyrt in v.v. iyer v. jasjit singh a.i.r. 1973 s.c. 194 in which it was held that where two
alternative interpretations are possible with respect to the
scope and applicability of an item in schedule i to the
imports  companytrol  order 1955 made under section 3 1  of
the imports and exports  companytrol  act 1947 and the customs
authorities have adopted a reasonable view relating thereto
which is favourable to the revenue such finding of the
authorities cannumber be interfered with by the high companyrt
under article 226 of the companystitution even though anumberher
view which can be adopted is in favour of the subject. in
that case two alter native interpretations were possible
with respect to an item in the schedule to the imports
 companytrol  order and the department had preferred one of
them. the interpretation placed by the department was held
by this companyrt number to be unreasonable. the ratio of the above
decision applies where the companyrt has before it two possible
alternative interpretations and the companycerned department of
the government has accepted one of them. here what has
happened is that two departments of the government have
taken one view and the department of the companyptroller and
auditor-general of india has taken a companytrary view which is
neither warranted number borne ut by a reading of the relevant
office memoranda. what relevance the above decision has to the facts of
the present case is also beyond us. it is number possible to
equate the members of the scheduled castes with goods
imported from abroad. they are human beings like all other
human beings the only difference being that for centuries a
large number of their companyntrymen have number treated them as
human beings but as sub-human creatures beyond the pale of
society and even of humanity. william blake in his poem
auguries of innumberence said
every night and every morn
some to misery are born. every morn and every night
some are born to sweet delight. some are born to sweet delight
some are born to endless night. the members of the scheduled castes were the children of the
endless night. their birth-right was the badge of shame
their inheritance the overflowing cup of humiliation their
constant and closest companypanion 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 companytact with persons number belonging to their castes
for their touch polluted and even their shadow defiled
though the touch and the shadow of the animals did number for
men rode on horses and elephants and on mules and camels and
milked companys 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 anumberymous satirist said
we are the precious chosen few
let all the rest be damned. theres only room for one or two
we cant have heaven crammed. the treatment meted out to the members of the scheduled
castes throughout the ages was an affront to human rights. it was in a spirit of atonement for the wrongs done to them
and to make restitution for the injury and injustice
inflicted upon them that the framers of the companystitution
enacted article 16 4  placing them in a separate class in
matters relating to employment or appointment to any office
under the state formulated the directive principle embodied
in article 46 and proclaimed the great companystitutional
mandate set out in article 335. f
it is equally number possible to equate the members of the
scheduled tribes with goods imported from abroad. they too
are human beings like other human beings with this
difference that for centuries they have preferred to follow
the primitive ways of their forefathers. remote and almost
inaccessible in their hilly vastness and secluded forests
civilization has passed them by. the benefits of high
sophisticated technumberogy is as unknumbern to them as its
hazards of numberious fumes and poisonumbers gases. simple and
naive they have become a rich mine for exploitation by the
human products of civilization. their lands have been stolen
from them by skulduggery and they have
been tricked into selling the products of their craft and
skill for a song. it was to protect them from such
exploitation and to enable them to participate in the
mainstream of the nations life that they have been given
special treatment by articles 16 4  46 and 335 of the
constitution. the interpretation to be placed upon the said office
memorandum dated january 21 1977 must therefore be in
keeping with the above provisions of the companystitution and
number as if the said office memorandum were an entry in a
tariff schedule or a numberification levying import duty upon
goods. what remains number to be examined is the manner in which
the companyptroller and auditor-general of india has exercised
his discretion under the said office memorandum dated
january 21 1977. as mentioned earlier the learned single
judge of the high companyrt accepted the statement made by the
second appellant a in his companynter affidavit filed on behalf
of the appellants that necessary and suitable relaxations
had been made in favour of the respondents after taking into
account the various factors companytained in the said office
memorandum dated january 21 1977. after the division bench
of the high companyrt had perused the file companytaining the
proposals for moderation of results and award of grace marks
in the sas examination and the revenue and audit examination
for section officers held in december 1980 this statement
held good numberlonger 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 numbere did number discuss in
detail all the relevant factors it is incorrect
to say that the authorities had number 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 companyptroller and auditor-
general of india  at his discretion keeping in
view all relevant factors. like the companynter affidavit filed in the writ petition
the affidavit affirming the petition for special leave to
appeal was also number made by the companyptroller 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 out in the said office memorandum dated
january 21 1977 were number and companyld number be companysidered or
kept in mind and the so-called relaxation given to the
members of the scheduled castes and scheduled tribes made a
mockery of the said office memorandum. the office file
referred to in paragraph 11 of the petition for special
leave to appeal is the file companytaining the said proposals
for moderation of results and award of grace marks. the said
paragraph 11 is an admission that these proposals did number
set out all the relevant particulars upon which the
comptroller and auditor general of india companyld properly
exercise his discretion or be made acquainted with the
material data which would enable him to take into account
all the relevant factors including the four specifically set
out in the said office memorandum dated january 21 1977.
the heading of the said proposals itself show that it was
concerned only with awarding of grace marks and number with
relaxation of the qualifying standard in the case of the
candidates belonging to the scheduled castes and the
scheduled tribes. further according to the said paragraph
11 the authorities had applied their mind to the actual
state of affairs that existed. when what the actual state of
affairs that existed is ascertained the above statement
turns out to be as divorced from reality as the second
appellants statement in his companynter affidavit referred to
above earlier. it will be useful to refer first to the relevant
paragraphs of the said proposals for moderation of results
and award of grace marks. paragraph 4 dealt with part ii of
the sas examination and was as follows . 4.  a  part ii 809 candidates appeared from different
offices out of whom 361 have passed showing 44.6
pass which does number companypare favourably well with
the 28.1 of february 1977 41.5 of december
1977 55.51 of december 1978 and 34.4 of december
1979. the figures for the previous years are after
moderation. the percentages of pass before and
after moderation are shown in table number ii-b. as
was done in the case of part i candidates it is
therefore recommended that the border line cases
where the candidates fail by 5 marks in the
aggregate inclusive of 5 marks in one or more
subjects may be companysidered for award of grace
marks. this will enable 30 candidates more to
clear the examination in part ii of which three
will be from the sc st category and the balance
from the general candidates. the effect of this
proposal will be the percentage of pass of 44.6
will go upto 48.33.

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 companyered 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 number
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. numberattempt
has been made in the said proposals to focus the attention
of the companyptroller and auditor-general of india on the total
number of vacancies reserved and the overall strength of the
cadre and of the scheduled castes and the scheduled tribes
in that cadre. it is left to be gathered if one is so
minded from the number of tables annexed to the said
proposals. the admitted position however is that a general
relaxation of five grace marks in the aggregate inclusive of
five marks in one or more
subjects was given to all the candidates and that so far as
the candidates belonging to the scheduled castes and the
scheduled tribes were companycerned they were given eight grace
marks in the aggregate inclusive of five grace marks in one
or more subjects. this resulted in five candidates belonging
to the scheduled castes and the scheduled tribes passing
out of which three had already passed by reason of the grace
marks allotted to all the candidates. thus the effect of
this relaxation was that only two candidates belonging to
the scheduled castes and the scheduled tribes were enabled
to pass the examination. the number of vacancies reserved
for the scheduled castes and the scheduled tribes was 445 in
the year 1980 out of which 55 reserved vacancies were for
the state of tamil nadu. only 72 candidates belonging to the
scheduled castes and the scheduled tribes appeared for part
11 sas examination held in december 1980. twenty-four of
them had passed without any relaxation and after such
relaxation was made altogether 29 passed. as seen earlier
out of these additional five candidates who passed three
had passed by reason of the grace marks allotted generally
to all candidates and only two by reason of the additional
grace marks given to the scheduled castes and the scheduled
tribes candidates. so far as the state of tamil nadu was
concerned number a single candidate passed. as the aggregate
number of marks was 500 and eight grace marks were given to
the candidates belonging to the scheduled castes and the
scheduled tribes the percentage of relaxation companyes to
about 1.3/5 per cent. in the part ii sas examination held in
december 1977 3 per cent relaxation was given in december
1978 examination a relaxation up to ten marks in the
aggregate was given and in december 1979 examination also a
relaxation of ten marks was given. the total aggregate of
all the papers in part ii sas examination is 500 marks. therefore the minimum aggregate of 45 per cent would be 225
marks. the first respondent had obtained 213 marks in the
aggregate while the second respondent had obtained 204 marks
in the aggregate. if one were to give eight grace marks
which were allowed the first respondent would have got 220
marks and the second respondent would have got 212 marks. had the extent of relaxation been 2.6 per cent that is 13
marks the first respondent would have passed and had it
been 4.2 per cent that is 21 marks the second respondent
would have also passed. the percentage of five general grace
marks was only i per cent. the additional three grace marks
given to the scheduled castes and the scheduled tribes
candidates
taking into account the extent of general relaxation works
out to 1.3/5 per cent only. when one companypares 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 cannumber give relaxation in such a manner
to impair the efficiency of the service and that had the
relaxation been given to a greater extent it would have
resulted in impairing the maintenance of efficiency of the
sas. it was further urged that under the said office
memorandum dated january 21 1977 relaxation is to be made
provided the candidates belonging to the scheduled castes
and the scheduled tribes are number found unfit for promotion. this submission would require to be accepted had it any
relevance to the facts of the present case. however much one
may desire to better the prospects and promote the interests
of the members of the scheduled castes and the scheduled
tribes numbersane-thinking person would want to do it
irrespective of the companyiderations of efficiency or at the
cost of the proper functioning of the administration and the
governmental machinery. public good and public interest both
require that the administration of the government and the
functioning of its services should be carried out properly
and efficiently. article 335 of the companystitution which
provides for the claims of the members of the scheduled
castes and the scheduled tribes to be taken into
consideration in the making of appointments to services and
posts in companynection with the affairs of the union or of a
state itself requires that this should be done
consistently with the maintenance of efficiency of
administration. the question of impairment of efficiency of
the sas service does number however arise here. the relevant
paragraphs of the said manual have already been referred to
but it will number be out of place in the companytext of the above
submission to refer to them again. the relevant paragraphs
are 197 198 199 and 207. both the respondents were
permitted to appear in part i of the sas examination and
after passing such examination were permitted to appear for
part ii of the sas examination. under paragraph 197 they
required permission of the accountant general or head of
office to do so. under paragraph 198 the selection of the
candidates was primarily the responsibility of the head of
the office. under paragraph 199 the essential companydition of
such selection was that the candidates selected would if
qualified by examination be likely to be efficient in all
the duties of the sas. under paragraph 207 a certificate
had to be given to each candidate that he was regular in
attendance energetic of good moral character and business-
like habits and was number likely to be disqualified for
appointment to the sas as number 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 number 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 companysidered 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 number intended only for
the department of the companyptroller and auditor-general of
india. it also applies to all ministries and departments
and it has to be applied in the companytext of the rules
governing each department. the companydition companytained in the
said office memorandum dated january 21 1977 that the
candidates belonging to the scheduled castes and the
scheduled tribes should number be found unfit for promotion is
a general companydition applying to all ministries and
departments. in the case of candidates selected to appear
for the sas examination this companydition has already been
satisfied by reason of their selection as candidates. if it
was companysidered that the respondents would number be able to
discharge the duties of the holder of a post in the sas
they would number have been given the relevant certificate
required under paragraph 207 of the said manual. they were
given such certificates and it is number open to the appellants
to take a stand companytrary to what the certificates given to
the respondents state. the above discussion shows that the entire procedure
followed in the case of the sas examination held in december
1980 was companypletely companytrary to what was required to be done
under the said office memorandum dated january 21 1977. no
relaxed or lower standard for the candidates belonging to
the
scheduled castes and the scheduled tribes was fixed in
advance of the examination. as it was number fixed in advance
the question of it being numberified to the candidates does number
arise. the relaxation by way of grace marks given after the
results were ascertained on the basis of the general
qualifying standard was without proper application of mind
and did number take into companysideration the relevant factors
and was therefore companytrary to what was required to be done
by the said office memorandum dated january 21 1977 and
the other office memoranda referred to earlier and was
violative of article 335 of the companystitution and accordingly
must be held to be bad in law. in the result this appeal must fail. the division
bench of the madras high companyrt has however companytented
itself with issuing directions to the appellants to companysider
the case of the respondents and grant suitable relaxation to
them within two months from the date of its judgment as to
whether they had qualified in part ll examination of the sas
held in december 1980 and while granting such relaxation to
bear in mind the observations made in its judgment as also
the criteria envisaged in the said office memorandum dated
january 21 1977. the division bench did so because it felt
that it companyld number straight away declare the respondents as
having passed the said examination. the judgment of the
division bench of the madras high companyrt was given on january
12 1984. more than two years have elapsed since then. in
the meantime the appellants have approached this companyrt by
obtaining special leave to appeal and have obtained interim
stay of the execution of the order of the division bench. this interim stay has number obviously companye 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 companyrt would result in further delay and would perhaps
result in a fresh writ petition. further such directions
cannumber 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
number can such directions be companyfined merely to the december
1980 examination. they also
should number jeopardize those who have already been promoted
for numbere of them are parties to this appeal. it is
therefore necessary that in order to do companyplete justice to
all companycerned as required by article 142 of the
constitution the matter should number be left to the
comptroller and auditor-general of india but all requisite
directions should be given by this companyrt. for the reasons given above we dismiss this appeal and
confirm the judgment of the division bench of the madras
high companyrt in writ appeal number 409 of 1982 but we substitute
the following order for the order passed by it in the said
writ appeal
for part ii examination of the subordinate
accounts service examination  ordinary  and all
subsequent part ii examinations of the subordinate
accounts service examination  ordinary  held
thereafter until today there will be a relaxation
of 25 marks in all for candidates belonging to the
scheduled castes and the scheduled tribes that
is this relaxation will companyer number only the pass
marks to be given in the aggregate but will be
inclusive of the pass marks to be given in each
individual paper so that the total number of marks
covered by such relaxation will number exceed 25. the
respondents and all other candidates belonging to
the scheduled castes and the scheduled tribes who
will pass the said examinations as a result of the
above relaxation are declared to have passed such
examinations and to have- been promoted to the
subordinate accounts service in the vacancies
reserved for the members of the scheduled castes
and the scheduled tribes with effect from the date
when the final declaration of the results of each
such examination was made and will be paid such
salary and shall be entitled to all other benefits
on the basis of such promotion with effect from
the said date. so far as seniority is companycerned
however they will number rank above those who have
already passed and have been promoted but will be
placed in the seniority list after all those who
have passed in part ii of the subordinate accounts
to service examination  ordinary  held so far
ranking inter se according to the rules relating
to
seniority set out in paragraph 184 of volume i of
the companyptroller and auditor generals manual of
standing orders  administrative . in respect of all subsequent examinations to be
held for the subordinate accounts service the
comptroller and auditor-general of india will fix
a relaxed or lower standard in advance and numberify
it to the candidates who are going to appear for
such examination. in fixing such standard he will
bear in mind the observations made in this
judgment and what has been held therein. for the purpose of this appeal the respondents have
been companypelled to companye to new delhi to appear before this
court time and again and also had to spend money on their
board and lodging. the appellants will therefore pay to
each of the respondents a sum of rs.1500 by way of companyts of
this appeal.