WA 499/2001 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE C.R. SARMA (Amitava Roy,J) Heard Mr. G.N. Sahewalla, Senior Counsel for the appellant-Corporation. None a ppears for the respondents, including Respondent No.1-writ petitioner, though, t he names of their learned counsel have been reflected in the cause list. The app eal being of the year, 2001, we are disinclined to postpone the hearing. Moreove r, there is none to pray for such adjournment. By the impugned judgment and order, the challenge of the Respondent No.1-writ pe titioner laid against the office order dated 15.02.1996 was sustained, annulling the same. By the aforementioned order of the Corporation it sought to reduce t he cut off marks of 81.50 to 80 in respect of Schedule Caste and Schedule Tribe candidates holding E-1 level executive posts for consideration for promotion to E-2 level posts under its Career Growth Scheme (hereinafter for short referred t o as the Scheme) with retrospective effect. This, as the order reveals was in continuation of the earlier order dated 05.09.1988 embodying the norms for such promotions. The private respondents herein at the relevant time were serving as Asstt. Engineer (E.1) under the Corporation and in terms of the Scheme were con sidered for promotion to the next higher grade i.e. Executive Engineer (category E.2). As none of them were found to be possessed of the qualifying mark of 81. 5 then in vogue, promotions could not be effected. The office order dated 15.02. 1996 followed as a consequence whereof, the private respondents to the exclusion of Respondent No.1-writ petitioner were promoted to the higher posts. Being agg rieved, the Respondent No.1-writ petitioner questioned the validity of the order dated 15.02.1996 on the ground that such relaxation/concession for Scheduled Ca ste & Scheduled Tribe Candidates was impermissible in view of the determination made by the Apex Court in INDRA SAWHNEY AND OTHERS Versus UNION OF INDIA AND OTH ERS 1992 Supp. (3) SCC 217 as well as in S. VINOD KUMAR AND ANOTHER Versus UNI ON OF INDIA AND OTHERS (1996) 6 SCC 580. The impugnment, though resisted by the respondent-Corporation was upheld and by the judgment and order impugned in the instant appeal, the order dated 15.02.199 6 was quashed. Before us an additional affidavit has been filed on behalf of appellant-Corporation setting out the background of the Scheme as well as the ju stification for reduction of the qualifying marks vis-à-vis the Schedule Caste a nd Scheduled Tribe Executive Officers for their progression in career thereunder . According to it, vide office order 05.08.1988, the Scheme was introduced for E.1 level Executive to accelerate their promotion to E.2 level. As per the said Scheme the qualifying length of service of E.1 level Executive was 4 years for being considered for promotion to E.2 level provided that he was educationally a nd performance wise found suitable and was awardable quantifiable grade of marks as prescribed. Though, initially, 81.5 marks was the prescribed norm for quali fication for promotion to the E.2 level apart from other criteria of eligibility /suitability, in course of time the appellant-Corporation explained practical di fficulties for implementing the Scheme for want of qualified Scheduled Caste and Scheduled Tribe candidates in particular. This posed administrative problems a s the appellant-Corporation was in dire need of senior officers at the higher le vel Executive posts. In the above view of the matter, the Scheme which was at the relevant point of time in force, was extended thereafter in its application. The qualifying marks of 81.5 was reduced to 80 for the Scheduled Caste and Scheduled Tribe candidate s for the aforementioned reason. This relaxation, according to the appellant-Co rporation was also in terms of the contemporaneous Central Government office mem oranda prescribing such concession in the matter of qualifying marks/standard of evaluation of performance of candidates belonging to Scheduled Caste and Schedu led Tribe for similar promotions. In view of the decision of the Apex Court in Indra Sawhney and Ors.(Supra), howe ver the Govt. of India vide G.I. Dept. of Personnel & Training’s O.M. No.36012/2 3/96-Estt. (Res) dated 22.07.1997 withdrew its instructions/office memoranda pr oviding for relaxed norms in the matter of assessment of the performance of Sche duled Caste and Scheduled Tribe candidates for departmental/competitive examinat ions for promotion. This office memorandum dated 27.07.1997 was however withdra wn following the amendment of Article 335 of the Constitution of India vide Cons titution (Eighty Second Amendment) Act, 2000 introducing the following proviso. 335. Claims of Scheduled Castes and Scheduled Tribes to services and posts. - T he claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connectio n with the affairs of the Union or of a State: [Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for re laxation in qualifying marks in any examination or lowering the standards of eva luation, for reservation in maters of promotion to any class or classes of servi ces or posts in connection with the affairs of the Union or of a State.] Para 829 of the decision Indra Sawhhey being of vital relevance is quoted below: It is true that Rangachari has been the law for more than 30 years and that att empts to re-open the issue were repelled in Karmachari Sangh. It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the Central and State services but we are con vinced that the majority opinion in Rangachari to the extent it holds, that Arti cle 16(4) permits reservation even in the matter of promotion, is not sustainabl e in principle and ought to be departed from. However, taking into consideratio n all the circumstances, we direct that our decision on this question shall oper ate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Ce ntral Services or State Services, or for that matter services under any corporat ion, authority or body falling under the definition of ’State’ in Article 12 - s uch reservations shall continue in operation for a period of five years from thi s day. Within this period, it would be open to the appropriate authorities to r evise, modify or re-issue the relevant Rules to ensure the achievement of the ob jective of Article 16 (4). If any authority thinks that for ensuring adequate r epresentation of ’backward class of citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to do so. According to the appellant-Corporation meanwhile acting on the norms of eligibil ity/suitability in terms of this Scheme as well as in the related administrative orders including the one dated 15.02.1996, thousands of officers have been prom oted to different Executive levels and the consequential gradation lists have al so been published. In the above premise, Mr. Sahewalla has insistently urged that the impugned judg ment and order is unsustainable in law and on facts amongst others for the reaso n that the learned Single Judge in rendering the same had left out of considerat ion the relaxation granted by the Apex Court in the rigor of the application of its decision as contained in paragraph 829 thereof. Mr. Sahawella has further ur ged that as the decision rendered in S. Vinod Kumar and Anr.(Supra) is by a Benc h of smaller Coram, it by no means can override the relaxation provided in para graph 829 of the decision rendered in Indra Sawhney(Supra). Mr. Sahewalla has argued that not only the Apex Court thereby has saved promotio ns already effected on the basis of the relaxed norms, vis-à-vis Scheduled Caste and Scheduled Tribe candidates, the decision on this issue had been made operat ive only prospectively with the observation that the relaxation/concession alrea dy in force would continue to be in operation for a period of five years from th e date of the decision. The learned Senior counsel has urged that as the promot ions of the private respondents (excluding the Respondent No.7 writ petitioner) on 13.05.1996, 18.06.1996, 21.06.1996 are within a period of five years from the date of the judgment rendered in Indra Sawhney(Supra) i.e. 16.11.1992 those wer e clearly within the protective zone provided thereby and thus the denial of the benefits of promotion to them by the impugned judgment and order is clearly fla wed warranting interference of this Court. He has reiterated that meanwhile how ever in view of the amendment of Article 335 of the Constitution of India and th e incorporation of Article 16(4-A), the relaxed norms as conveyed by the office memoranda dated 15.02.1996 has been revived and are being acted upon as on date. A plain reading of the text of paragraph 829 of the judgment in Indra Sawhney(Su pra) clearly bears out the submission made on their behalf for the appellant-Cor poration. The orders of promotion of private respondents (to the exclusion of the writ petitioner) as mentioned hereinabove, are clearly within a period of f ive years on and from 16.11.1992. The learned Single Judge, as it appears misse d to note this aspect of the matter. Obviously, therefore, the direction contain ed in the impugned judgment and order recalling the benefits of such promotion t o the private respondents (to the exclusion of the writ petitioner) cannot be su stained. As meanwhile the relaxed norms as embodied in the office memorandum da ted 15.02.1996 have been restored following the amendment of the Article 335 of the Constitution of India, vis-à-vis the challenge lend in the writ petition, we are of the unhesitant opinion that the annulment thereof also has to be interfe red with. Ordered accordingly. In the above view of the matter, the impugned judgment and order passed by the l earned Single Judge in Civil Rule No.3227/1996 is set aside. The appeal is allowed. No costs. JUDGE JUDGE Benoy