Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8499 OF 2012
(Arising out of SLP(Civil) No.31979/2010)
ALOK KUMAR PANDIT ...Appellant
VERSUS
STATE OF ASSAM & ORS. ...Respondent(s)
O R D E R
1. Leave granted.
2. The questions which arise for consideration in
this appeal filed against the order of the Division Bench of
the Guwahati High Court dismissing the writ petition filed
by the appellant for quashing the selection made by the
Assam Public Service Commission (for short, ‘he Commission’)
are whether a candidate of reserved category, who is
adjudged more meritorious than open/general category
candidates, is entitled to be appointed in the
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service/cadre/post of his choice/preference against the post
earmarked for the reserved category to which he belongs and
whether while computing the quota/percentage of reservation,
such candidate should be treated to have been allotted a
post in the open category.
3. On a requisition received from the State
Government, the Commission issued advertisement No.6/2006
dated 10.8.2006 for 116 posts of Assam Civil Service Class-I
(Junior Grade), Assam Police Service (Junior Grade), Labour
Officer, Assistant Registrar of Cooperative Societies,
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Inspector of Labour, Inspector of Taxes and Inspector of
Excise. These included 11 backlog posts of reserved
categories of Scheduled Castes, Scheduled Tribes (P) and
Scheduled Tribes (H). The appellant, who belongs to OBC
applied for recruitment against the advertised posts. After
clearing the preliminary and final examination, the
appellant was called for interview. The list of selected
candidates was published by the Commission on 15.6.2009.
4. As the appellant’s name did not figure in the merit
list, he submitted an application under the Right to
Information Act, 2005 for supply of the details of marks
awarded to him in various papers and interview. Vide reply
dated 16.7.2009, the Commission informed the appellant that
he had secured 840 marks (669 in the main examination and
141 in the interview). The appellant then filed Writ
Petition No.3590/2009 for quashing the entire selection and
for issue of a mandamus to the Commission to prepare fresh
select list in accordance with the recruitment rules and the
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reservation policy framed by the State Government. Some
other unsuccessful candidates also filed writ petitions
questioning the selection made by the Commission. The
Division Bench of the High Court disposed of all the
petitions by common order dated 1.9.2009 and directed the
Commission to prepare fresh select list.
5. In compliance of the direction given by the High
Court, the Commission prepared fresh select list which was
notified on 18.2.2010. The appellant’s name did not find
place even in the fresh list. He, therefore, filed Writ
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Petition No.1040/2010 and prayed for issue of a mandamus to
the Commission to again revise the select list by contending
that more meritorious candidates of the reserved category of
OBC who should have been adjusted against the open category
posts were illegally appointed against the posts earmarked
for the OBC. He pleaded that the Commission committed
serious error by allotting the posts in Assam Civil Service
to OBC candidates who, keeping in view their overall merit,
should have been appointed against the open category posts
and, in any case, for the purpose of computing quota of
reservation for OBC, such appointments should be treated as
having been made against open category posts.
6. The Division Bench of the High Court considered
the case of one Manjit Barkakoti, who had secured 952 marks
and was placed at Sl.No.25 in the overall merit, but could
not be appointed to the Assam Civil Service against the open
category post because his marks were less than other open
category candidates and held that no illegality was
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committed by appointing him to that service against the post
earmarked for the reserved category. The Division Bench
further held that appointment of the candidates of the
reserved category, who were adjudged more meritorious than
some of the open category candidates against the posts
earmarked for the particular reserved category did not
result in usurpation of the quota earmarked for that
category. All this is evinced from the following portions
of the impugned order:
“5. The contention advanced by the petitioner that
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Manjit Barkakoti being at Sl. No.25 of the over
all merit list should be treated was a general
category candidate has dangerous portents with the
law cannot countenance. If Manjit Barkakoti is to
be treated as a general category candidate, he
will not make it to the Assam Civil Service even
with lesser marks will qualify as an OBC candidate
for the Assam Civil Service to the exclusion of a
more meritorious OBC candidates. Such a situation
cannot be allowed to prevail.
6. The perception of the petitioner is capable of
being analysed from another standpoint. According
to the petitioner, by treating such meritorious
candidates as reserved category candidates, the
actions of the Public Service Commission have
reduced the posts available for reserved category
candidates. The aforesaid perception of the
petitioner is not correct on facts. Along with a
general merit list, the Public Service Commission
has prepared separate select list for each of the
service for which advertisement was issued. The
number of posts available in each service and the
distribution thereof amongst the general
candidates and each of the reserved category
candidate is mentioned in the select list
published. 29 posts in all for all the different
services in question were available. A reading of
the select list for each service as prepared by
the Commission clearly indicates that 29 OBC
candidates have been appointed. If that be so, the
concept of usurping the quota for OBC candidates,
as sought to be so, the concept of usurping the
quota for OBC candidates, as sought to be urged,
will have no basis. Above all, it is not the case
of the petitioner that any OBC candidate securing
less than 840 marks (secured by the petitioner)
has been appointed in any service.”
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7. Learned counsel for the appellant referred to the
provisions of the Assam Scheduled Castes and Scheduled
Tribes (Reservation of Vacancies in Services and Posts) Act,
1978, Assam Public Service Combined Competitive Examination
Rules, 1989 and office memo No.ARP-338/83/14 dated Dispur,
th
the 4 January, 1984 issued by the State Government and
argued that the reserved category candidates, who were more
meritorious than open category candidates, but were
appointed against the reserved category posts should be
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deemed to have been appointed against the posts earmarked
for the open category and they cannot be treated as
appointed against the posts earmarked for the reserved
category, which is constitutionally and legally
impermissible. He submitted that if migration is allowed to
more meritorious candidates of the reserved category, who,
as per their overall merit should be appointed against the
general category posts then the quota earmarked for reserved
category will be reduced and that would be clearly contrary
to the provisions of the rules framed under proviso to
Article 309 of the Constitution, the reservation policy
framed by the State Government and Articles 14 and 16 of the
Constitution.
8. Learned counsel for the State of Assam supported
the impugned order and argued that the view taken by the
High Court on the entitlement of more meritorious candidates
of reserved category to opt for the reserved category posts
is in consonance with the law laid down by this Court and
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the appellant who is less meritorious reserved category
candidate cannot claim appointment to the State services
because that would amount to violation of the rights of
more meritorious candidates of his own category.
9. We have considered the argument/submission of the
learned counsel for the parties. In our view, the questions
framed in the opening paragraph of this order are no longer
res integra and must be answered in affirmative in view of
the judgments of this Court in State of Bihar v. M. Neethi
Chandra (1996) 6 SCC 36, Anurag Patel v. U.P. Public Service
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Commission (2005)9 SCC 742 and Union of India v. Ramesh Ram
(2010) 7 SCC 234.
10. However, before adverting to aforesaid judgments
we consider it proper to notice two other judgments in Indra
Sawhney v. Union of India 1992 Supp. (3) SCC 217 and
R.K.Sabharwal v. State of Punjab (1995) 2 SCC 745. In the
first of these cases, the nine Judges Bench considered the
constitutional validity of O.M.s dated 13.8.1990 and
25.9.1991 issued by the Government of India on the issue of
reservation of socially and educationally backward classes.
B.P.Jeevan Reddy, J., wrote the majority opinion on his own
behalf and on behalf of Chief Justice M.H. Kania and M.N.
Venkatachaliah and A.M. Ahmadi, JJ. S. Ratnavel Pandian,
T.K.Thommen, Kuldip Singh, P.B.Sawant and R.M.Sahai, JJ.,
wrote separate opinions. In his detailed judgment B.P.
Jeevan Reddy, J. answered several questions. In paragraph
811 of the judgment he made the following observations:
“811. In this connection it is well to remember
that the reservations under Article 16(4) do not
operate like a communal reservation. It may well
happen that some members belonging to, say,
Scheduled Castes get selected in the open
competition field on the basis of their own merit;
they will not be counted against the quota
reserved for Scheduled Castes; they will be
treated as open competition candidates.”
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11. In the second case, the Constitution Bench held
that the State cannot count a reserved candidate selected in
the open category against the vacancies in the reserved
category.
12. If the proposition laid down in Indra Sawhney v.
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Union of India (supra) and R.K.Sabharwal v. State of Punjab
(supra) are considered in abstract, it may be possible to
say that once a reserved category candidate secures higher
merit than open category candidates, he can be considered
for appointment only against open category post and the
quota of the particular reserved category cannot be reduced
by treating his appointment as one made against the post
earmarked for the reserved category to which he belongs.
However, literal application of this proposition can lead to
serious anomaly and discrimination inasmuch as more
meritorious candidate of the particular reserved category
could be deprived of the service/cadre/post of his
choice/preference and less meritorious candidate of the
reserved category could get appointment on the post which
would otherwise be available to more meritorious candidate.
This can be illustrated by the following example: -
‘X’ and ‘Y’ are members of reserved category. They
compete for selection for recruitment to All-India
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Services, which includes, IAS, IPS, IRS, etc. In
the merit list prepared by the Commission ‘X’ is
placed higher than some of the open category
candidates but on the basis of his overall inter
se merit with the open category candidates he
could get appointment only to IRS. ‘X’ can get the
post of his choice/preference i.e. IAS provided
his case is considered for appointment against the
posts earmarked for the particular reserved
category to which he belongs. If he is not
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allowed to do so, then why who is less meritorious
than ‘X’ within the reserved category will get
appointment to IAS against the reserved post. In
this manner ‘X’ will, despite his better merit
within the reserved category, stand discriminated
in the matter of appointment against the post for
which he had given his preference.
13. The anomaly of the type mentioned above was not
countenanced in Indra Sawhney v. Union of India (supra) and
R.K.Sabharwal v. State of Punjab (supra) and, therefore, the
Court did not have the occasion to deal with the same.
However, we are convinced that appointment of less
meritorious candidate of the reserved category against the
service/cadre/post of his choice and denial of such
appointment to more meritorious candidate of that category
would result in blatant violation of the doctrine of
equality enshrined in Articles 14 and 16 of the
Constitution.
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14. In State of Bihar v. M. Neethi Chandra (supra),
this Court considered the question whether the candidates of
the reserved categories who had secured more marks than open
category candidates could be placed in a disadvantageous
position because they were allotted branches which were not
of their choice. If they were allotted branches as per their
merit among the reserved category candidates then they would
have got the branches of their choice. The writ petitions
filed by more meritorious candidates of the reserved
categories were disposed of by the High Court by directing
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that the seats should be first offered to the candidates of
reserved category on merit and once all the reserved seats
are filled, the remaining seats should be offered to the
general category. The High Court made a further arrangement
for the reserved category of girls, who could get seats on
merit on their own reservation as girls as well as on
reserved seats as scheduled casts/scheduled tribes etc. The
girls were to be considered first for admission against the
seats reserved for them. If any girl belonged to scheduled
casts/scheduled tribe, etc., she was to be given a choice of
one of the two reservations and the girls in excess of the
reserved vacancies could then seek admission on general
merit. While partly reversing the order of the High Court,
this Court observed:
“Let us take a situation in which in a particular
reserved category there are × number of seats but
the candidates qualifying according to criteria
fixed for that category are x+5 with the best
among them also qualifying on merit as general
candidates. According to the arrangement made by
Circular No. 20, the first candidate gets a choice
along with the general category candidate but be-
ing not high enough in the list, gets a choice
lesser than what he could secure in the reserved
category to which he was entitled. The × number of
seats could then be filled up with the four quali-
fying candidates being denied admission for want
of seats. This would have been harsh for the best
candidate as well as violative of Articles 14 and
16 of the Constitution. On the other hand, if the
direction of the High Court is followed, the first
× number of candidates get seats according to
merit against the reserved seats but the remaining
5 will also have to be ‘adjusted’ against the open
seats for regular candidates. These 5 will be
those who are not qualified according to the gen-
eral merit criteria and so will necessarily dis-
place 5 general candidates who would be entitled
to seats on merit.
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At the same time, as pointed out above, all is not
well with the Government Circular No. 20 as it op-
erates against the very candidates for whom the
protective discrimination is devised. The inten-
tion of Circular No. 20 is to give full benefit of
reservation to the candidates of the reserved cat-
egories. However, to the extent the meritorious
among them are denied the choice of college and
subject which they could secure under the rule of
reservation, the circular cannot be sustained. The
circular, therefore, can be given effect only if
the reserved category candidate qualifying on
merit with general candidates consents to being
considered as a general candidate on merit-cum-
choice basis for allotment of college/institution
and subject.”
(emphasis supplied)
15. In Anurag Patel v. U.P. Public Service Commission
(supra) this Court was called upon to consider whether more
meritorious candidates of reserved category who were
adjusted against the posts earmarked for general category
were not entitled to make a choice of the post earmarked for
reserved category. The facts as noticed by this Court were
that the 3rd respondent, i.e., Rajesh Kumar Chaurasia in CA
No. 4794 of 1998, who secured 76th place in the select list,
filed Civil Miscellaneous Writ Petition No. 46029 of 1993
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before the High Court of Allahabad contending that he was
appointed as a Sales Tax Officer, although the appellant in
CA No. 4794 of 1998, i.e., Nanku Ram (Anurag Patel) who was
also a Backward Class candidate, was appointed as a Deputy
Collector, who according to the 3rd respondent, had secured
97th rank in the select list, a rank lower than him.
Similarly, 8 persons, all belonging to Backward Classes, who
find their names in the select list filed Writ Petition No.
22753 of 1993 alleging that they were entitled to get
postings in higher cadre of service as the persons who
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secured lower rank in the select list were given appointment
to higher posts. The first petitioner in the writ petition
i.e. Shri Rama Sanker Maurya and the 2nd petitioner i.e.
Shri Abdul Samad were at Serial Nos. 13 and 14 in the select
list. According to these petitioners, persons lower in rank
who got appointment in the reserved category were given
postings on the ground that those posts were earmarked for
being appointed in Class II services. After noticing the
judgments in Ritesh R. Sah v. Dr. Y. L. Yamul (1996) 3 SCC
253 and State of Bihar v. M. Neethi Chandra (supra), the
Court observed:
“In the instant case, as noticed earlier, out of 8
petitioners in Writ Petition No. 22753 of 1993,
two of them who had secured Ranks 13 and 14 in the
merit list, were appointed as Sales Tax Officer
II, whereas the persons who secured Ranks 38, 72
and 97, ranks lower to them, got appointment as
Deputy Collectors and the Division Bench of the
High Court held that it is a clear injustice to
the persons who are more meritorious and directed
that a list of all selected Backward Class candid-
ates shall be prepared separately including those
candidates selected in the general category and
their appointments to the posts shall be made
strictly in accordance with merit as per the se-
lect list and preference of a person higher in the
select list will be seen first and appointment
given accordingly, while preference of a person
lower in the list will be seen only later.”
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16. A somewhat similar question came up before the
three Judge Bench in Union of India v. Ramesh Ram (2009) 6
SCC 619. Some candidates belonging to OBC had filed an
application before Madras Bench of the Central
Administrative Tribunal challenging Rule 16(2) of the Civil
Services Examination Rules, 2005. They pleaded that
adjustment of more meritorious OBC candidates against the
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OBC quota was illegal. According to them, such candidate
should be adjusted against the unreserved/general category
posts and allow more OBC candidates, who were lower in rank,
to be recommended for the posts earmarked for that category.
The Tribunal held that the OBC candidates who were selected
on merit must be adjusted against the general category
posts. It further held that in terms of the judgment of
this Court in Anuraj Patel vs. U.P. Public Service
Commission (supra), the allocation of service should be in
accordance with rank-cum-preference with priority given to
meritorious candidates. The three Judge Bench noticed the
judgments in Ritesh R. Sah v. Dr. Y.L. Yamul (supra), Anurag
Patel v. U.P. Public Service Commission (supra) and R. K.
Sabharwal v. State of Punjab (supra) and referred the matter
to the Constitution Bench.
17. When the matter was placed before the Constitution
Bench (the judgment of the Constitution Bench is reported as
Union of India v. Ramesh Ram (2010) 7 SCC 234), the
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following question was framed:
“Whether candidates belonging to reserved cat-
egory, who get recommended against general/unre-
served vacancies on account of their merit
(without the benefit of any
relaxation/concession), can opt for a higher
choice of service earmarked for reserved category
.”
and thereby migrate to reserved category
18. The Constitution Bench referred to the rules, the
judgments of this Court in Union of India v. Satya Prakash
(2006) 4 SCC 550, Ritesh R. Sah v. Dr. Y.L. Yamul (supra),
State of Bihar v. M. Neethi Chandra (supra), Indra Sawhney
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v. Union of India (supra), M. Nagaraj v. Union of India
(2006) 8 SCC 212, Anurag Patel v. U.P. Public Service
Commission (supra) and observed:
“The decision in Anurag Patel rectified the anom -
aly which had occurred since U.P. PSC had allotted
services of lower preference to the candidates of
Backward Classes who were meritorious enough to
qualify as per the criteria laid down for general
category candidates. Such meritorious candidates
were disadvantaged on account of qualifying on
merit which was patently offensive to the prin-
ciples outlined in Articles 14 and 16 of the Con-
stitution. This Court had reached such conclusion
to ensure that allocation of service is in accord-
ance with the rank-cum-preference basis with pri-
ority given to meritorious candidates for service
allocation.
The decision in Anurag Patel in turn referred to
the earlier decision in Ritesh R. Sah v. Dr. Y.L.
Yamul. However, we have already distinguished the
judgment in Ritesh R. Sah. That decision was given
in relation to reservation for admission to post-
graduate medical courses and the same cannot be
readily applied in the present circumstances where
we are dealing with the examinations conducted by
UPSC. The ultimate aim of civil services aspirants
is to qualify for the most coveted services and
each of the services have quotas for reserved
classes, the benefits of which are availed by MRC
candidates for preferred service. As highlighted
earlier, the benefit accrued by different candid-
ates who secure admission in a particular educa-
tional institution is of a homogeneous nature.
However, the benefits accruing from successfully
qualifying in UPSC examination are of a varying
nature since some services are coveted more than
others.”
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(emphasis supplied)
19. The Constitution Bench noticed the judgment in
R.K. Sabharwal v. State of Punjab (supra) and distinguished
the same by making the following observation:
“Reference was also made to R.K. Sabharwal v.
State of Punjab, this Court had declared that the
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State shall not count a reserved category candid-
ate selected in the open category against the va-
cancies in the reserved category. However, by this
it could not be inferred that if the candidate
himself wishes to avail a vacancy in the reserved
category, he shall be prohibited from doing so.
After considering the counsel's submissions and
deliberations among ourselves, we are of the view
that the ratio in that case is not applicable for
the purpose of the present case. That case was
primarily concerned with the Punjab Service of En-
gineers in the Irrigation Department of the State
of Punjab. The decision was rendered in the con-
text of the posts earmarked for the Scheduled
Castes/Scheduled Tribes and Backward Classes on
the roster. It was noted that once such posts are
filled the reservation is complete. Roster cannot
operate any further and it should be stopped. Any
post falling vacant in a cadre thereafter, is to
be filled from the category reserved or general
due to retirement or removal of a person belonging
to the respective category. Unlike the examina-
tions conducted by UPSC which includes 21 differ-
ent services this case pertains to a single ser-
vice and therefore the same cannot be compared
with the examination conducted by UPSC. The exam-
ination conducted by UPSC is very prestigious and
the topmost services of this nation are included
in this examination. In this respect, it is obvi-
ous that there is fierce competition amongst the
successful candidates as well to secure appoint-
ments in the most preferred services. This judg-
ment is strictly confined to the enabling provi-
sion of Article 16(4) of the Constitution under
which the State Government has the sole power to
decide whether there is a requirement for reserva-
tions in favour of the backward class in the ser-
vices under the State Government. However, the
present case deals with positions in the various
civil services under the Union Government that are
filled through the examination process conducted
by UPSC. Therefore, the fact-situation in R.K.
Sabharwal case is clearly distinguishable.
JUDGMENT
20. In view of the above discussion and the law laid
down in State of Bihar v. M. Neethi Chandra (supra), Anurag
Patel v. U.P. Public Service Commission (supra), which has
been approved by the Constitution Bench in Union of India v.
Ramesh Ram, we hold that the official respondents did not
commit any illegality by appointing more meritorious
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candidates of OBC to Assam Civil Service for which they had
given preference and the High Court did not commit any error
by dismissing the writ petition.
21. As a sequel to the above, the questions framed in
this appeal are answered in the following terms:
“ 1) A reserved category candidate who is adjudged
more meritorious than open category candidates is
entitled to choose the particular
service/cadre/post as per his choice/preference
and he cannot be compelled to accept appointment
to an inferior post leaving the more important
service/cadre/post in the reserved category for
less meritorious candidate of that category.
2) On his appointment to the service/cadre/post of
his choice/preference, the reserved category
candidate cannot be treated as appointed against
the open category post.”
JUDGMENT
22. In the result the appeal is dismissed. The parties
are left to bear their own costs.
..................J.
[G.S. SINGHVI]
NEW DELHI; .................J.
NOVEMBER 26, 2012 [GYAN SUDHA MISRA]
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