ROHTAS BHANJHAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The point that arises in these matters is whether it is permissible for the authorities to fix lesser number of qualifying marks for reserved candidates in the matter of "promotion". It was held by the majority in Indra Sawhney case and also by Sawant, J, that for the purposes of "promotion" of the reserved candidates, it was not permissible to fix lesser qualifying marks though such a procedure could be adopted for "direct recruitment". The abovesaid passages were referred to and relied upon by a two-Judge Bench in S. Vinod Kumar V/s. Union of India to say that the provision in the OM dated 21-1- 1977 which permitted lesser qualifying marks for promotion of reserved candidates, was not valid.

(2.) However, in Superintending Engineer, Public Health, U.T. Chandigarh V/s. Kuldeep Single a three Judge Bench of this Court was of the view that lesser qualifying marks could be fixed even in the matter of "promotion" of reserved candidates. It is not clear whether the said point indeed arose in that case. The three-Judge Bench relied upon the Judgement of another three-Judge Bench in Comptroller & Auditor General of India V/s. K.S. Jagannathan which held that a mandamus could be issued for the purpose of Fixing lessee number of qualifying marks for "promotion" of reserved candidates. In the recent Judgement in Ajit Singh (II) V/s. State of Punjab the Constitution Bench has stated that to the extent that in Jagannathan case and in Kuldeep Singh case it was held that mandamus could be issued for purpose of Art. 16(4), the said view could not be accepted. The question as to the validity of the fixation of lesser number of qualifying marks for reserved candidates for promotion did not however arise in Ajit Singh case.

(3.) Inasmuch as in Kuldeep Singh case this Court had not noticed the observations of the majority as well as the observations of Sawant, J. in Indra Sawhney case referred to above which observations were followed in Vinod Kumar case, and inasmuch as it was also not noticed that the nine Judge Bench in Indra Sawhney case had taken a view contrary to that in Jagannathan case so far as fixation of lesser number of qualifying marks for "promotion" of reserved candidates is, we are of the view that these matters should go before a three-Judge Bench. The papers may be placed before Hon ble the Chief Justice for appropriate orders.