- (1.) Leave granted. Heard the counsel for the parties,
(2.) In Indra Sawhney v. Union of India this court had, while declaring that Article 16 (4 does not contemplate or permit reservation in the matter ofpromotions, declared that for the several reasons stated therein, the reservations already made shall continue for a period of five years from the date of the said judgment. In the majority judgment, it was directed that ".. Our decision on this question shall operate 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 central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of 'state' in Article 12 - such reservations shall continue in operation for a period of five years from this day. "then, in the next para, the majority judgment made the following observations "We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion -without compromising the efficiency of the administration. The relaxation concerned in Thomas and the concessions namely carrying forward of vacancies and provisions for in-service coaching/training in Karamchari Sangh are instances of such concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs - consistent with the efficiency of administration and the nature of duties attaching to the office concerned - in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded hereinabove. "
(3.) Sawant, J. expressed himself on this aspect in para 549, which reads "There is no doubt that the meaning of the various expressions used in Article 16, viz. , 'matters relating to employment or appointment to any office', 'any employment or office' and 'appointments or posts' cannot be whittled down to mean only initial recruitment and hence the normal rule of the service jurisprudence of the loss of the birth marks cannot be applied to the appointments made under the article. However, as pointed out earlier, the exclusive quota is not the only form of reservation and where the resort to it such as in the promotions, results in the inefficiency of the administration, it is illegal. But that is not the end of the road nor is a backward class employee helpless on account of its absence. Once he gets an equal opportunity to show his talent by 582 coming into the mainstream, all he needs is the facility to achieve equal results. The facilities can be and must be given to him in the form of concessions, exemptions etc. such as relaxation of age, extra attempts for passing the examinations, extra training period etc. along with the machinery for impartial assessment as stated above. Such facilities when given are also a part of the reservation programme and do not fall foul of the requirement of the efficiency of the administration. Such facilities, however, are imperative if, not only the equality of opportunity but also the equality of results is to be achieved which is the true meaning of the right to equality. ";