IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 18923 of 2010(S) -------------------------- OA.257/2010 of CAT,ERNAKULAM BENCH .................... PETITIONER(S): --------------- GEORGE JOHNS PARAPURA, AGED 39, S/O.P.J.GEORGE, SUB DIVISIONAL ENGINEER, (OMPP), MOBILE SERVICE, BSNL, TELEPHONE EXCHANGE BUILDING, KOTTAYAM. BY ADV. SRI.JOHNSON MANAYANI SRI.BENHUR JOSEPH MANAYANI RESPONDENT(S): --------------- 1. SECRETARY, MINISTRY OF PERSONNEL PUBLIC GRIEVANCE AND PENSIONS (DEPARTMENT OF PERSONAL AND TRAINING), NORTH BLOCK, NEW DELHI. 2. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, COMMUNICATION CENTRAL SECRETARIAT, NEW DELHI. 3. THE BHARAT SANCHAR NIGAM LTD., CORPORATE OFFICE AT 102-B, STATESMAN HOUSE 148, BARAKHAMA ROAD, NEW DELHI-1, REPRESENTED BY ITS MANAGING DIRECTOR. 4. MANAGING DIRECTOR, BSNL, CORPORATE OFFICE, AT STATESMAN HOUSE, BARAKHAMA ROAD, NEW DELHI-1. 5. CHIEF GENERAL MANAGER, TELECOM, BSNL, KERALA CIRCLE, TRIVANDRUM. 6. ASST. GENERAL MANAGER (PERS), BSNL, STATESMAN HOUSE, NEW DELHI-1. R1, R2 BY ADV.SMT.JEBI MATHER HISHAM R3 TO R6 BY ADV.SRI.MATHEWS K.PHILIP,SC, BSNL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- W.P(C).No.18923 OF 2010 ------------------------------------------- Dated this the 28th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. Petitioner, member of a Scheduled Tribe, is an employee of BSNL. He aspires for promotion. There are two papers for the competitive examination. The bench mark prescribed for open merit candidates is 50% marks per paper. For SC/ST candidates, the bench mark is 45% per paper. The petitioner obtained only 42% in one paper, though 55% in the other. In this situation, the petitioner tries to project a constitutional claim footed on Article 16(4B) read with the proviso to Article 335. The argument is that while Article 16(4B) provides for carry over of the unfilled vacancies to the next year also and when the situation envisages that such carry over vacancies can stand outside the bench mark of 50% reservation, there should have been a corresponding provision, whereby, those who WPC.18923/10 2 would be considered for recruitment under Article 16(4B) would be given a second relaxation in the bench mark regarding qualifying marks. The petitioner tries to say that this is permissible within the proviso to Article 335. That Article is an enabling provision for providing relaxation in qualifying marks in any examination or for lowering the standards of valuation, for reservation in matters of promotion etc. Making a provision in terms of that Article is within the domain of the executive. A judicial order cannot be issued by the recognition of any constitutional right in that regard in the absence of a statutory or executive provision that could fall within the proviso to Article 335. Therefore, the view of the learned Tribunal that as the law stands, the relaxation is only a single point stands. We may also take into consideration another aspect of the matter. The provision under Article 16 (4B) is for the carrying forward of the unfilled vacancies that could be earmarked for the SC/ST candidates during a particular year. If a particular applicant could not succeed against the ratio fixed for that year, is he to be given a further WPC.18923/10 3 relaxation for being considered after the vacancy is carried over to the next year under Article 14 (4B)? We may also have to look at it from the angle of any hostile discrimination that would result among the SC/ST candidates themselves while they are to be treated as a homogeneous group for the purpose of conferment of benefits referable to Article 16(4B) and other attendant provisions, including Article 335. We, however, leave open all those points since no such question needs to be deliberated upon to confirm the decision of the learned Tribunal. In the result, the writ petition fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.7/07.