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March 7, 2004

BLACK OMs AT A GLANCE

HISTORY AND STATUS

DEPT. OF PERSONNEL ON THE BLACK OFFICE MEMORANDUMS of 1997

The Establishment (Reservation) Section, of the Deptt of Personnel and Training, vide their Communication to the Lok Sabha Secretariat, DOPT ID No. 41034/5/003-Estt (Res) dated 17-10-2003, had provided a Statement giving the Govt’s Official Version about the Status on five OMs issued by them in 1997.

As everyone is aware of, the Department of Personnel, taking shelter behind some Judicial Pronouncements from 1992 and even earlier, had issued a slew of Office Memorandums on Reservations, seriously affecting the Interests of SCs&STs in Services. The Officials behind them and the Govt knew very well that, these were extremely unfair, and would adversely affect even the precariously marginal Representations of SCs and STs in Govt Services, particularly in the Middle Levels onwards. In fact, these Officials were responsible in the first place, for the Court Cases, and poor Defence of the Cases in the Courts. Apart from these, they were guilty of repeated failures even to properly explain to the Courts, even the longstanding Rules, Procedures and Practices of Administration. Thus, the Courts were deliberately left to grope in the darkness.

DOP&T had repeatedly failed, time and again umpteen times, to Explain and Tell the Truth in the Courts, in an open and straightforward manner, and in an easily understandable simple language, the very simple and routine issues like –

1. Selections for Appointments, initially by Direct Recruitments from the Public

2. Selections for Appointments, at times in an restricted manner, from amongst certain Sections of the Society like SCs, STs, Ex-Service Men, Short Service Commission, Physically Handicapped Personnel, Backward Classes, by Direct Recruitments from the Public

3. Selections for Appointments, at times in an extremely restricted manner, from amongst certain Sections within the Services, by way of Direct Recruitments.

4. Selections for Appointments later, of those working at any particular level, to an immediately higher level, by way of Promotions.

5. Confirmations later, of the Employees in different Posts, to which they were Appointed at different levels, after appropriate Selections by Direct Recruitments initially at the lower Posts/ Levels, and by Promotions thereafter to higher Posts and Levels

6. Seniority of the Employees, on such Appointments by Direct Recruitments to each Posts and Levels

7. Seniority of the Employees, on such Appointments by Promotions to each Posts and Levels

8. Seniority of the Employees, on their Confirmation of each Appointments, made after Direct Recruitments or Promotions to each different Posts or Levels.

9. Policies, Principles and Rules of Reservations, in Direct Recruitments and the logic and rationale behind them.

10. Policies, Principles and Rules of Reservations, in Promotions and the need for them.

Govt and its Officials had failed to put forward clearly and unambiguously the correct positions and procedures of the Rules on Recruitments, Reservations, Promotions, Seniority and Confirmation, before the Courts. Because of this, the Courts had pronounced many blatantly wrong Judgements, on the basis of wrong facts and false/ incorrect assumptions. These Developments, in fact leave one very sad and uncomfortable, particularly when one realises that there exists an unholy alliance, between the general community Employees and their Unions, Bureaucracy, Govt and the Courts. They are all perhaps enacting an elaborate drama to fool the SCs&STs and the World.

The manipulations of Rules and Regulations by the general community officials harm the interests of all SCs&STs both in Service and Society as a whole. Further, these reduce their Representations in Services at the Middle Levels onwards, right up to the Highest Levels. All these in turn, stunt and delay the growth of SCs&STs. Net result is the reduced Representations of SCs&STs at different higher levels; particularly in Decision and Policy making Positions, even in Public Services. These are part of an elaborate Plan and Conspiracy, to snap the main artery of SC&ST Dalits’ Mobility to Participate in the Governance and Administration of the Country. Hence, the attempts to sabotage and subvert the links in the Chain – Education, Hostels, Employment and Promotions through Freeships, Scholarships, Fellowships and Reservations.

As a result of the above, there came a series of OMs. Many, generally refer to Five OMs of 1997. In fact, one is not really sure, as to how many of such bad or Black OMs had been silently issued by the Govt then, or before and thereafter. There is, at least one more Black OM, which is more worser, than the oft-quoted five. Some SC&ST Officers and MPs had indeed taken this up with the Govt and in Parliament.

A Table of the Six OMs is enclosed as Annexure A, for ready Reference, and easy understanding of the Issues.

Govt came under tremendous pressure from SCs&STs. There were many Protests and Rallies by SC&ST MPs, other Leaders, Officers, Staff, Workers and other Employees. Yet, during the last few years, the Govt did nothing, than offering lip Sympathies, and making many Promises. But, reluctantly and at different times, the Govt had come up in piecemeal, with three Constitutional Amendments, just before various State Elections. These, just to remedy the Damages done by the Bureaucrats. This is Strange, when no efforts were made by the Govt, to see if the issue of the Black OMs was at all justified, and whether they could be withdrawn or modified straight away. This, because, that would otherwise establish that the Govt had failed to be fair. And it would also establish that its Officials had misused their position in Office, and manipulated the Govt and its Powers to damage the Future of SCs&STs. Hence, the Govt never stated so far as to whether the OMs were in line with the Court Decisions. In fact, the Govt did not even check the correctness of these OMs. As a Result most of the Officers, who had conspired to do more damages than what was done by the Courts. To be more specific, the Officials in the first place, had also deliberately misled the Courts. In spite of these, those bureaucrats, had all managed to escape punishments, and gone scot-free

Three Constitution Amendments were made, just to rectify the Mistakes of the Courts and Sabotages done by the biased and prejudiced Bureaucrats. Thus the Bureaucrats deliberate attempts to mislead the Nation, and sabotage the Policies of Reservations, had been safely covered up. Instead of taking appropriate corrective measures against the Mistakes, and exemplary punitive actions against the Sabotagers, the Govt went to the extreme of making three Constitutional Amendments.

After the Constitutional Amendments, the Govt had come out with three Revised OMs – two in 2000, on 20^th July and on 3^rd October, and one in 2002 – on 21^st January. Now, the Establishment (Reservation) Section of the Department of Personnel and Training, had furnished a Statement on the Status of the Five OMs – the first of the Five listed in the Enclosure at Annexure A

The Three new OMs are –

1. DOPT OM No 36012/5/97-Estt(Res)-Vol II dtd 20.07.2000

This nullifies the fifth Black OM issued on 29^th August 1997, limiting the Reserved Vacancies to 50% after clubbing together Fresh Vacancies and the Backlog and Carry Forward Vacancies. Now the Backlog and Carry Forward Vacancies would be treated as a separate and distinct group, away from Fresh Reserved Vacancies. This according to the 81^st Amendment of the Constitution incorporating Article 16(4B).

2. DOPT OM No 36012/23/96-Estt(Res)-Vol II dtd 03.10.2000

This Restores Relaxations in Qualifying Marks and Standards of Evaluation, as was prevailing before the third Black OM issued on 22^nd July 1997. This according 82^nd Amendment of the Constitution in 2000 amending Article 335 of the Constitution.

3. DOPT OM No 20011/1/2001-Estt(D) dtd 21.01.2002

This withdraws the first of the Black OMs issued on 30^th January 1997, issued in pursuance of the Judgement of Two Judges Bench of Supreme Court in UOI vs Virpal Chauhan etc on 10^th Oct 1995. This according to the 85^th Constitutional Amendment, amending Article 16(4A) wef 17^th June 1995 when Art 16(4A) was incorporated in the Constitution

These indicate that Govt could not, even six years after the issue of the Black OMs, remedy the damages done by –

1. The second Black OM issued on 02^nd July 1997, introducing Post Based Roster for identifying the Posts to be Reserved in lieu of the old Vacancy Based Roster earmarking the Vacancies to be Reserved.

2. The fourth Black OM issued on 13^th August 1997, regarding Reservations in Promotions, as per Article 16(4A) incorporated by the Amendment to Constitution on 17^th June 1995.

And further -

3. The Sixth Black OM DOPT OM No 36011/1/98-Estt(Res) dtd 01^st July 1998, issued without any provocation or Court Intervention or Judgement, by this Govt. This OM, deprives SC&ST Dalits, selected above general candidates by virtue of their superior performances, from being considered for Appointment against unreserved Vacancies, if they had availed of any concessions in Age, Experience, Number of Chances taken in the Exams etc. It states that they could be counted only against Reserved Vacancies.

As a Result of the above, the interests of the few SCs and STs in Govt Services, Public Sector Enterprises including Banks etc, are badly affected as could be seen from below –

1. The second Black OM issued on 02^nd July 1997, introduced Post Based Rosters for identifying the Posts to be Reserved for SCs&STs etc. This replaced the Vacancy Based Rosters, which existed earlier for earmarking the Vacancies to be Reserved. This was justified in the name of the Supreme Court Judgement, by a Constitution Bench of Five Judges in RK Sabharwal vs State of Punjab, delivered on 10^th Feb 1995.

Merits of the Judgement apart, this OM –

Is totally Violative of the Judgement

Is not in Confirmation with the Judgement

Goes much beyond the Pronouncements of the Judgement

In view of the fact that this OM is not in line with the Judgement of the Supreme Court, it should have been amended long back. The Officials behind this OM should have been prosecuted with exemplary Punishments, for committing serious fraud, and breach of Trust.

It is now stated that, in view of the Opinion of the Ld Attorney General, and the later decision of the Supreme Court in Ajit Singh II Case on 16^th Sept 1999, the OM is still being examined.

2. The fourth Black OM issued on 13^th August 1997, regarding Reservations in Promotions, as per Article 16(4A) incorporated by the Amendment to Constitution on 17^th June 1995.

This OM was issued in pursuance of Article 16(4A) of the Constitution, incorporated on 17^th June 1995. But this OM is not at all in conformity with Article 16(4A) and Provisions there in. Hence the Govt should have amended this OM appropriately. Instead it is now stated that, two sets of Writ Petitions are pending in the Supreme Court.

One challenging the Validity of Art 16(4A)

Second for Reservation within Group A Posts

Taking the lame excuse of awaiting the outcome of these Petitions, this patently wrong OM is not being amended.

4. There is no reference to the Sixth Black OM DOPT OM No 36011/1/98-Estt(Res) dtd 01^st July 1998. This had been issued by this Govt in 1998, without any provocation or Court Intervention or Judgement. This OM deprives SC&ST Dalits, selected above general candidates by virtue of their superior performances, from being considered for Appointment against unreserved Vacancies, in case they had availed of any concessions in Age, Experience, Number of Chances taken in the Exams etc. It states that they could be counted only against Reserved Vacancies.

This OM, and the directions there of, are all against all principles of Natural Justice, and the main Principles behind the Policy of Reservations. Since this OM was issued without any provocation or Court Intervention or Judgement, by this Govt, this Govt should have withdrawn this OM long long ago. We now implore the Govt to withdraw this OM forthwith.

These half-hearted measures by the Govt, to protect the Interests of SCs&STs, leave the Officials and the Community handicapped.

Annexure A: A Table of the Six OMs

OM No 1 : DOPT OM No 20011/1/96-Estt (D) dtd 30^th Jan 1997

This OM states that, SCs&STs promoted to Higher Levels, under the Rules of Reservations in Promotions, would loose their Seniority, whenever any general community employees working in the Lower Posts are Promoted, if in case they were senior to the Reserved category of Employees in the lower posts

Sl No	Issue	Position
1.	Original Position	Rules of Seniority 1. Employees Appointed to any Post, by Direct Recruitment or by Promotion were generally Senior to all those Appointed later to that Post, be that by Direct Recruitment or by Promotion 2. Seniority of Employees Appointed to Higher Posts by Promotion were generally Senior to all those Promoted later and Appointed to those higher Posts, even if the later were senior in lower Posts Exceptions 1. In those Posts where it is specific that the Seniority was to be as per the Order of Merit at the time of Selection, the individuals higher up in the Merit became Seniors to even those who could or had managed to join earlier. This depended upon their merit positions 2. In those Posts where Appointments were made from different streams, channels and sources, the Seniority was specifically to be fixed as per a pre-fixed Order in a specifically stipulated Roster. In such cases, even those who join later could become senior to those, who could or had managed to join earlier. That depended upon the specific Rules and their Roster Positions Changes in Seniority 1. In the case of Employees Appointed to Higher Posts by Promotion, the Seniority was generally fixed as per the Order in which they were Promoted. This was dependent on the Order in which they were Selected for Appointment to the Higher Post on Promotion. Hence those who were Promoted earlier became Seniors to those Promoted later, even if the later were senior to the first in the lower posts, before the Promotions. This depended upon their Positions in the Selections for the Promotions 2. Seniority amidst those promoted often changed on Promotion, depending upon their Order of Selections for Promotions, but they were en-bloc placed below all those Promoted earlier 3. Generally those promoted earlier were Senior to all those Promoted later to the higher Posts. This, even if the later were senior in the lower Posts. They became juniors to all those Promoted earlier 4. On Confirmation of the Employees against any Permanent Post, Seniority Changed further, as per the Order of Confirmation. This, irrespective of the fact as to whether they were Senior or Junior in their Appointments to those Posts, either by Direct Recruitment or Promotion
2.	Issues before the Court	UOI vs Virpal Chauhan etc came before the Two Judges Bench of Supreme Court This was basically the Case of Railway Guards Promotions. The Railway Guards start as Class IV Employees and go up through Class III and II by Promotions step by step through various Grades of Guards before they retire, depending upon their seniority work and performance Guards from the general community filed a number of cases against the Promotion of SC&ST Guards
3.	Govt’s Stand	Govt’s Stand before the Court was very lukewarm, and not effective or forceful. The Govt Counsels and other Legal Officers totally failed to explain to the Court, and bring home to the Judges, the simple, long-standing, time tested and well accepted basic Rules of – 1. Recruitments and Promotions 2. Recruitment’s of different Categories 3. Recruitments to different Levels 4. Recruitments to different Services 5. Recruitment’s to different Departments and Ministries 6. Promotions of different Categories 7. Promotions in all the Above
4.	Court’s Decisions	Decided on 10^th Oct 1995. Their Judgement was based on totally wrong Assumptions of the Court, in understanding and interpreting the Govt Rules and Procedures. This only because the Govt failed or could not clarify them to the Judges properly. The Judges had clearly recorded their Assumptions very clearly, in the very beginning of their written Judgement In spite of the blatantly wrong and untrue Assumptions on which the Judgement was based, the Govt did neither Challenge nor ask for Review, or point them out and ask the Court to correct the basic mistake. This, even though the wrong Assumptions were clearly recorded, in the very beginning on the body of the Judgement. It was on those wrong Assumptions that the Court’s Decision rests
5.	Govt’s Reactions	This Black OM was issued on 30^th Jan 1997. This stipulated that Seniority of SCs&STs in higher Grades, promoted earlier than general community employees, would be brought down below such general category employees when promoted later, if they were earlier senior to the SC&ST Employees, in the lower posts
6.	Impact on SCs&STs	Many SCs&STs Promoted earlier than the others, under the Rules of Reservations in Promotions, to improve their Representations in the higher Grades, lost their Seniority The SCs&STs became Juniors to many general Candidates who were working under them in lower grades Thus, the Seniority of SCs&STs was never allowed to settle. Because of the Judgements, based on wrong assumptions in interpreting the Govt Rules and Procedures, clearly recorded at the very beginning of the Judgement, the Seniority of SCs&STs was always kept in a flux. The Court Decisions and the Govt OM, unsettled the Seniority of SCs&STs perpetually. The Seniority kept moving up, on to higher Grades on Promotion, and then tumbling down once again, below those who worked under them in lower posts and grades. Hence SCs&STs promoted to higher grades through Reservations in Promotions could no more effectively take work from the general candidates. Since the SCs&STs working at the higher levels had to take work from the general community people in the lower grades under them, and the seniority was left in a flux, the working culture and efficiency suffered irreparably in all offices The swinging Seniority of SCs&STs seriously disturbed the working relationships, discipline, chain of command, lines of control and administrative structure in the Offices The fear of loosing Seniority, every time any general community individual was promoted, extremely affected the self-respect and morale of SCs&STs working in higher Posts These left a serious impact, on the Quality of Work, Efficiency and Effectiveness of almost all Offices
7.	Half Hearted Responses by the Govt	Eighty-fifth Constitution Amendment was brought by Govt before Parliament, and passed unanimously. Article 16(4A) was amended wef 17^th June 1995 when Art 16(4A) was incorporated in the Constitution
8.	Present Position	DOPT OM No 20011/1/2001-Estt(D) dtd 21.01.2002 was issued withdrawing the first of the Black OMs issued on 30^th January 1997
9.	Previous Vs Present	Since the black OM OMs issued on 30^th January 1997 was withdrawn wef the date of its issue, SCs&STs must get back their Seniority and all consequent benefits, as if no damage whatsoever had occurred during the interim
10.	Remarks	Restoration of Seniority of SCs&STs and associated benefits, are too slow in reaching SC&ST Employees Many Offices, Deptts are unwilling to restore Seniority of SCs/STs and provide associated benefits

OM No 2 : DOPT OM No 36012/2/96-Estt (Res) dtd 2^nd July 1997

This OM stipulates that, Reservations would be made according to a New Roster to be maintained on the basis of Posts, and not on Vacancies

Sl No	Issue	Position
1.	Original Position	1. Reservations for SCs and STs were to ensure their Representation in all Public Spheres 2. Reservations for SCs and STs were hence made in Proportion to their Populations in Society – i. in the Country, when Appointments were on an All India basis ii. in the State/UT when Appointments were from within the State/UT iii. in the Region, within the State/UT, when the Appointments were from a specific Region from within the State/UT iv. in the Region, covering over a number of States and UTs, when the Appointments were from a specific Region covering a number of States and UTs Hence, appropriate different Percentages of Reservations for SCs and STs, were fixed – i. at All India Levels ii. at the State/UT Levels iii. at the Regional Levels within the States/UTs iv. at the Regional Levels covering a number of States/UTs 3. Authorities, generally neglected Selection of SCs&STs for Appointments, at the time of both Recruitments and Promotions, and also in Confirmations Hence, suitable Rosters were drawn up on All-India, or State/UT, or Regional basis, for determining the actual number of Reservations to be fixed for Selection of SCs and STs, at the time of every Appointment to fill the Vacancies by Direct Recruitments or Promotions and Confirmations 4. Most of the times, adequate number of SCs&STs were not Selected, at the time of Recruitments for Appointments at the Lower Levels, and Promotions for Appointments at further Higher Levels and Confirmations at different levels The Rosters drawn up, helped in determining the actual number of Reservations to be fixed for SCs and STs, at the time of every Appointment to fill the Vacancies by Direct Recruitments or Promotions and in Confirmations 5. Invariably, at the time of Recruitments for Appointments at the Lower Levels, and Promotions for Appointments at the Higher Levels, the SCs&STs were selected at only the very tail end. Here again, the Rosters helped in not only determining the actual number of Reservations to be fixed for SCs and STs, at the time of every Appointment to fill the Vacancies by Direct Recruitments or Promotions, but also the Order in which the Reservations for SCs and STs would occur 6. The Rosters were used to determine the exact numbers of Reservations and the actual order of Reservations as Vacancies arose in the Ministries, Departments, Offices etc 7. Rosters were all Vacancy based 8. In spite of these, many Ministries, Departments, Offices etc failed to maintain the Rosters, in most cases of Appointments, Promotions and particularly Confirmations 9. Further Selections of SCs&STs, their Recruitments, Appointments, Promotions and Confirmations were not made in full or in their right sequence 10. Many did not understand or bother to look at the Policies, Procedures and Rules of Reservations, particularly the details and finer points 11. Reservations were mostly made on a very ad-hoc basis 12. Representations of SCs&STs were far below the Percentage of Reservations 13. In view of the above, Reservations were introduced in Promotions to ensure the Representations of SCs&STs at least in the immediate higher and middle levels 14. Reservations were introduced in Confirmations also, both after the Appointments by Direct Recruitments and by Promotions, to ensure the Order and Sequence of Representations of SCs&STs at different levels and grades
2.	Issues before the Court	RK Sabharwal vs State of Punjab, a Case from Punjab, questioning – i. the Promotion of a SC Engineer at higher Levels ii. Reservations in Promotions The Case was decided by the High Court at Chandigarh, holding Reservation in Promotions Legal. It came up on appeal before Five Judges Constitution Bench of Supreme Court
3.	Govt’s Stand	Govt and its Law Officers, as usual put up a weak defence of the case and Reservation Policy
4.	Court’s Decisions	The Court decided the Case on 10^th Feb 1995, saying that – i. Reservations in Promotions were Valid ii. The Reservations should be according to the Rosters iii. But the Rosters should be operated on basis of the total number of Posts, instead of running them continuously along with the number and series of Vacancies that arise iv. The Rosters should be operated on the basis of the number of Posts in each Office/ Deptt/ Service, when the Vacancies Reserved for SCs&STs were all filled appropriately with SCs&STs v. Once all the Reserved Posts were initially filled with SCs&STs by recruitment or promotion, as the case might be, further intake of SCs and STs through Reservations against those Reserved Posts would be undertaken, only when the already serving SCs&STs vacated their Reserved Posts. Similarly, when the general community employees vacated the general Posts, those vacancies would be filled by general recruitments or promotions as the case might be. The Rosters therefore should be operated to identify clearly the Reserved and general Posts, whenever any Post fell vacant
5.	Govt’s Reactions	This Black OM was issued on 2^nd July 1997, purportedly in Response to Court Decision of 10^th Feb 1995 But in reality, the OM was totally draconian, going far beyond the Judgement – i. It flatly stipulated that all future Reservations would be based on New Rosters included in the OM That was in complete and direct Violation of Court’s Decision at 4 iv above The Judgement did not stipulate any new Rosters, but asked for the Operations of the Rosters on the basis of the total sanctioned Posts, in each grade in the Offices The Judgement asked for the Operation of the Rosters on the basis of Posts, only after first filling up all Reserved Posts ii. The OM very silently and stealthily had introduced an altogether different Roster iii. By surreptitiously bringing in an altogether different Roster, the Govt pushed down the Positions of OBCs, SCs and STs by many steps far below, than their due Positions iv. Changing the basic Order and Position of OBCs, SCs and STs in the new Roster, under the cover of introducing Post based Rosters, instead of the earlier practices of operating the Rosters on the basis of Vacancies were totally and clearly unjustified, and hence illegal
6.	Impact on SCs&STs	The OM denies the chances of OBCs to some extent at the time of Direct Recruitments, and at the times of both Direct Recruitments and Promotions to many Posts and Offices reduced the opportunities of SCs, and totally eliminated the STs These are particularly very harsh in cases of single number Posts like Principles, Heads of Departments etc The effects are severe when the Posts are very few and could be counted in fingers, being in single digits The general Communities grab and take away most of the Opportunities in all small Offices and Posts. This is the reality in many Organisations and Departments all over the Country
7.	Half Hearted Responses by the Govt	Govt could not remedy the damages done, even six years after the issue of this second Black OM No 36012/2/96-Estt(Res) dtd 2^nd July 1997, while adopting the Post Based Roster to identify the Posts to be Reserved in lieu of the Vacancies
8.	Present Position	Govt could not, even six years after issue of this Black OM, remedy the damages done by the OM And the Govt says that it had obtained the advise of the Attorney General, and the OM is being examined keeping in view the Judgement in Ajit Singh II Case also, which being not based on actual facts had come flawed
9.	Previous Vs Present	It is not only that SCs and STs, but also OBCs still remain losers General Communities had gained immensely at their cost General Communities always get 50% or more Posts. In many cases they get 100% benefit, while SCs, STs and OBCs get Nil Reservation
10.	Remarks	The OM being violative of Supreme Court’s Constitution Bench, must be scrapped, and all the concerned Officials behind the OM, and sticking on to it till date must be summarily Prosecuted to set an exemplary Warning to all others Govt must re-introduce – i. the old Rosters that ensured OBCs, SCs and STs all taken together Reservations of at least 50% of the Posts. The old model Rosters must be operated on the basis of Posts available in any Office, Department or Ministry. Hence, the old model Rosters followed for making Reservations on the basis of Vacancies as and when they arise, should be adopted for making Reservations on the basis of sanctioned numbers of Posts in each office ii. all the carry-forward, back-log and shortfall of Reserved Vacancies must first be filled, as stipulated in the Judgement, before operating the Rosters on the basis of Posts. Otherwise, Govt would be guilty of violating the Judgement, and going directly against the Courts. And the Govt would be held for Contempt of the Court

OM No 3 : DOPT OM No 36012/23/96-Estt (Res) dtd 22^nd July 1997

This OM states that, No Relaxations would be given to SCs&STs at the time of their Promotions

Sl No	Issue	Position
1.	Original Position	SCs&STs were always discriminated and neglected at all points of time. This was more pronounced when any selections were made. It was so at the time of Selections for Appointments by either Direct Recruitments or Promotions. Hence Reservations were introduced in the Selections for Appointments. First it was at the times of Direct Recruitments Reservations in Direct Recruitments did not improve the lot of SCs&STs. On the other hand SCs&STs recruited into Service were subjected to more and more innovative silent and discreet, but cruel methods of Discriminations. As a result, the SCs&STs were invariably left out in almost all Selections for Promotions. Hence, the SC&ST Representation in Services continued to be poor, particularly in Levels where Appointments were made by Promotions. Therefore, Reservations in Promotions were introduced in 1972 Even after Reservations in Promotions, SCs&STs were missing their Promotions. Ingenious methods were adopted by others, to pull down the SCs&STs, at the time of Selections for Promotions. To overcome the subversions of the SCs&STs and Reservation Policy, certain Relaxations were introduced in Promoting SCs&STs
2.	Issues before the Court	No Specific Case was brought before the Courts, against Relaxations in Promotions. DOP&T Officials took shelter behind the five year old Mandal Case – Indira Sawhney vs UOI dtd 16^th Nov 1992. Citing this Case and the Judgement there on as justification, this third black OM was issued in July 1997
3.	Govt’s Stand	Govt came out with DOPT OM No 36012/23/96-Estt(Res) dtd 22^nd July 1997, citing the five year old Mandal Case as the Justification
4.	Court’s Decisions	The whole issue of Reservations for SCs&STs, was never before the Court, in the Mandal Case
5.	Govt’s Reactions	Govt continued to maintain the stand that this OM is a Result of Court’s Directions, and did nothing to save the SCs&STs from the continuing Discriminations and Harassments in Services. Later on, as if an afterthought, DOP&T had started saying that the OM was issued on the basis of Supreme Court Judgement on 1.10.96 in S Vinod Kumar vs Union of India reiterating the Mandal Case Judgement dtd 16.11.1992. This though the OM was issued only on the basis of Mandal Judgement
6.	Impact on SCs&STs	SC&ST Employees in Service were left to the mercy of their general community colleagues, seniors and at times even their juniors in getting their Promotions
7.	Half Hearted Responses by the Govt	After two years, in 1999, Govt brought the 88^th Constitution Amendment Bill in Parliament, to insert some additional Provisions in Article 335. The same was Passed as the 82^nd Constitution Amendment Act 2000. As a consequence Department of Personnel and Training had come out with a fresh Office Memorandum, DOPT OM No 36012/23/96-Estt(Res) Vol II dtd 03.10.2000 This restores the Relaxations in the qualifying marks and standards of evaluation of SCs&STs at the time of Promotions, as that existed before the third black OM was issued
8.	Present Position	Since the Department of Personnel and Training had come out with a fresh Office Memorandum, DOPT OM No 36012/23/96-Estt(Res) Vol II dtd 03.10.2000, restoring Relaxations in the qualifying marks and standards of evaluation of SCs&STs at the time of Promotions, as that existed before the third black OM was issued
9.	Previous Vs Present
10.	Remarks

OM No 4 : DOPT OM No 36012/18/95-Estt (Res) Pt II dtd 13^th August 1997

This OM states that, Reservations in Promotions for SCs&STs would continue, as before beyond 15^th November 1997

Sl No	Issue	Position
1.	Original Position	Reservations for SCs&STs in Promotions were introduced in 1972 as stated in the Preceding Case. There was a danger of this Reservation in Promotions being withdrawn as a Result of certain Observations of some Judges in the Mandal Case Judgement 1992
2.	Issues before the Court	In the Mandal Case, no Specific Issue was brought before the Court, challenging Reservations for SCs&STs in Promotions. Yet, the Court suo-motto made certain uncalled for Observations, against Reservations in Promotions affecting SC&ST Promotions
3.	Govt’s Stand	Govt had stated that the Issue of Reservations for SC&ST was not before the Court, nor the SCs&STs were a Party to the Case, and hence nothing should be decided on the sane, without any arguments, or hearing the SCs&STs who would otherwise be affected
4.	Court’s Decisions	The Court on its own went ahead, suo-motto made certain Observations against Reservations in Promotions, and asked the Govts to make alternate arrangements within five years
5.	Govt’s Reactions	Govt of India promised to look into the case sympathetically to help the SC&ST Employees. But many officials in various Departments on their own, particularly in some States, immediately stopped the Promotions of SCs&STs without waiting for any directives or clarifications from the Govt of India. They also did not make any Alternate Arrangements, to ensure the Representations of SCs&STs in Services, in Proportions to their Populations in the Society like introducing – i. Direct Recruitments in various higher levels also, ii. Increasing the Percentages of Direct Recruitments of SCs&STs, taking into account the total number of sanctioned strength in the Services from top to bottom, iii. Organising Special Training Programmes etc for SCs&STs to ensure their Promotions, iv. Changing the Policies, Rules, Procedures and Methods of making Promotions to protect the SCs&STs from biased marginalisations and prejudiced neglect or elimination at the time of Promotions
6.	Impact on SCs&STs	Many SCs&STs on the verge of Promotions, were denied Promotions. On the other hand, in lieu of their promotions and in their places, general community employees were promoted
7.	Half Hearted Responses by the Govt	An Amendment to the Constitution was made incorporating Article 16(4A) wef 17^th June 1995 Article 16(4A) provides for Reservations in Promotions for SCs&STs, where their Representations are not adequate Department of Personnel and Training came out with an Office Memorandum, DOPT OM No 36012/18/95-Estt(Res) Pt II dtd 13^th August 1997 This OM instead of providing for SCs&STs, Reservations in Promotions to Posts where their Representations were not adequate, as per Article 16(4A) simply stated that, Reservations in Promotions would continue as before The OM, contrary to the Provisions of Article 16(4A) only allowed the continuation of very limited Reservations in Promotions – in Class IV and Class III, to Class II and Class I, and in a very limited and restricted sense within Class I where the Promotions were made primarily on the basis of Seniority. This kept majority of the Class I Posts, filled only or invariably by Promotions, out of the Scope of Reservations. Therefore SCs&STs were conveniently kept out of the higher rungs of Class I Posts and Services
8.	Present Position	SCs&STs are still conveniently kept out of the higher rungs of Class I Posts and Services, in contravention of Article 16(4A) And the Govt could not, even six years after the issue of this Black OM, remedy the damages done by the fourth Black OM issued on 13^th August 1997 Govt had now stated that there are two Writs Petitions in the Supreme Court. One Challenging the Validity of Article 16(4A) itself. The other, Praying for Reservations within Group A (Class I) Posts. In view of those Writs, it had been decided to await the outcome of the Petitions
9.	Previous Vs Present
10.	Remarks	SCs&STs are not getting Reservations in Promotions at the higher Levels, even as their Representations are not adequate This in spite of the Provisions of Article 16(4A) allowing and facilitating Reservations in Promotions for SCs&STs, where their Representations are not adequate

OM No 5 : Due to problem on our computer, file for this OM got corrupted and we are trying to collect details for uploading it soon.

OM No 6 : DOPT OM No 36011/1/98-Estt (Res) dtd 1st July 1998

This OM states that, SC&ST Dalits, selected above general candidates by virtue of their superior performances, should not be listed in the main list above general candidates, whose performances were lower, and be should not be considered for Appointments against unreserved Vacancies, if they had availed of any concessions in Age, Experience, Number of Chances taken in the Exams etc.

The OM states that they could be counted only against Reserved Vacancies.

Sl No	Issue	Position
1.	Original Position	SCs&STs, as also the OBCs selected for appointments through Direct Recruitments on their own merit when compared to other general Community candidates were placed above those general community people whose performances were relatively below the Reserved Candidates They were included in the main list along with other general community individuals according to their performance in the selections They were considered for Appointment, against General Vacancies, as per their turn in the main list They were not counted or adjusted against the Reserved Recruitments
2.	Issues before the Court	No case had been cited as the reasons for the issue of this OM
3.	Govt’s Stand	This Sixth Black OM DOPT OM No 36011/1/98-Estt(Res) dtd 01^st July 1998, was issued by this Govt without any provocation or Court Intervention, and without citing any Judgement as the reason for bringing out this OM
4.	Court’s Decisions	No case had been cited as the reasons for the issue of this OM
5.	Govt’s Reactions	Govt had come with this Black OM on its own, at the instigation of general community officials of the Department of Personnel and Training
6.	Impact on SCs&STs	SCs&STs and OBCs hailing from Rural Backward Areas or from poor working class families won’t anymore get recognition or higher merit positions due, even when they perform better than other general community individuals, if they had availed of any concession or relaxation in Age, No of Attempts in Exams etc
7.	Half Hearted Responses by the Govt	Govt had not remedied the damages done, even five years after the issue of this sixth Black OM No 36011/1/98-Estt (Res) dtd 1^st July 1998 In fact, the Govt had not even commented on this OM
8.	Present Position	Govt had not, even six years after issue of this Black OMs, remedied the damages done by them, and the Govt had so far not even commented on this OM
9.	Previous Vs Present	Earlier, the SCs&STs, as also the OBCs selected for appointments through Direct Recruitments on their own merit when compared to other general Community candidates were placed above those general community people whose performances were relatively below the Reserved Candidates. Now, such exceptional Reserved Candidates, if they had availed of any concessions or relaxations like Age, number of Attempts in the Examinations etc – i. Are not placed above those general community people whose performances were relatively lower ii. Are now placed below all general community individuals, and included in the Reserved Lists only iii. Are not considered for Appointment against the general Posts iv. Are considered for Appointments only against Reserved Posts/ Vacancies
10.	Remarks	Govt had so far not commented on this OM

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