Bharat Sanchar Nigam Limited vs Sandeep Choudhary
Bharat Sanchar Nigam Limited & Anr. vs Sandeep Choudhary & Ors.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8717 OF 2015
Bharat Sanchar Nigam Limited & Anr. …Appellants
Versus
Sandeep Choudhary & Ors. …Respondents
J UD G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 04.08.2014 passed by the High Court of Rajasthan at
Jodhpur in DBCWP No. 14714/2013, by which the High Court has
dismissed the said writ petition preferred by the appellants herein –
Bharat Sanchar Nigam Limited (hereinafter referred to as “BSNL”) and
has confirmed the judgment and order passed by the Central
Administrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to
as the “Tribunal”) in O.A. No. 159 of 2009 by which the learned Tribunal
1
allowed the said application preferred by the respondent No.1 herein –
original applicant and directed the appellant herein – BSNL to consider
his candidature if sufficient vacancies exist for placement of the
candidates of Other Backward Class and his candidature shall be
considered against the present or future vacancies on the OBC category
after determining the vacancies as per rules, the appellant – BSNL has
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:-
2.1 That the private respondent No.1 herein – original applicant
applied for the post of Telecom Technical Assistants (TTAs) in pursuance
to the notification dated 06.10.2008 issued by BSNL for filling up of TTA
posts. The appointment was to be made by way of direct recruitment by
open competitive examination in the Rajasthan Telecom Circle. The said
advertisement further provided that the unit of recruitment shall be the
respective Secondary Switching Area (SSA). The dispute in the present
case is relating to the Ajmer SSA. In the Ajmer SSA, the vacancies were
as follows:-
Sr.
No.
Name
of SS
rect.
Units
No. of
Posts
No.
UR
posts
OBC SC ST PH Exservic
e
1 Ajmer 12 5 4 2 1 0 1
2
The recruitment was to be made by conducting a competitive
examination of eligible candidates in an objective type paper of 200
marks. Clause 13 of the advertisement provided that:-
(i) The minimum Qualifying marks in the paper would
be 40% for the candidates of unreserved category
candidate, and
(ii) 33% for candidates of reserved category.
It so happened that in the exam which was conducted no person
from general category candidate got more than 40% marks. However,
four candidates from OBC category obtained more than 33% marks.
The marks obtained by four OBC category candidates are as under:-
OBC selected candidates
Name Marks (out
of 200)
Percentage
1. Alok Kumar Yadav 79.75 39.87
2. Dinesh Kumar 77 38.5
3. Alka Saini 72.5 36.25
4. Ved Prakash 68.5 34.25
The original applicant – respondent No.1 herein, who got 68.25
marks was placed at Waiting List No.1 in the OBC category.
2.2 On 01.06.2009, BSNL issued a circular/letter to all heads of
telecom circles, inter alia, stating that there has been poor pass
percentage of candidates in the TTA examination and number of
vacancies had remained unfilled. There was acute shortage of
3
manpower and hence it was decided to relax the qualifying marks by
10% for all candidates. Accordingly, the qualifying marks were refixed at
30% for general category and 23% for reserved category. Clauses (iii) &
(v) of the said letter provides as follows:-
(iii) Successful candidates, qualifying through normal
standards in aggregate will rank enblock senior to
those qualifying through relaxed standard in the
merit list. However, the provisions of the
Recruitment Rules will determine their inter-se
seniority in the cadre.
(v) The Circles who have already announced the result
but have not got adequate number of successful
candidates, may further extend the merit/waiting list
as per above instructions.
2.3 After relaxation of minimum marks with 30% of general category
candidates, the following five candidates in general category became
eligible for appointment:-
OC selected candidates
Name Marks
1. Neelima Sharma 79.75
2. Deepika Chauhan 78
3. Ankit Goyal 76.75
4. Tapin Sharma 76.50
5. Tarun Jain 75.25
2.4 However, it so happened that one Alok Kumar Yadav and Alka
Saini, who were found to be more meritorious than the general category
candidates subsequently were found eligible to be appointed against the
4
reserved category – OBC. Therefore, the respondent No.1 herein –
original applicant, who was wait listed No.1 in OBC category,
approached the Tribunal by way of application being O.A. No. 159 of
2009 for a direction to prepare a fresh list for all candidates based on
relaxed standard and act on the said combined merit list. It was, inter
alia, pleaded that there cannot be two cut-off marks for a single
selection. It was submitted that there was an unreasonable classification
by providing another set of cut-off marks and the action was
discriminatory and violative of Articles 14 and 16 of the Constitution of
India.
2.5 It was the case on behalf of the original applicant that those two
candidates belonging to OBC category, who were having more merit
were required to be adjusted against the general category seats and
consequently the seats reserved for OBC category were required to be
filled in from remaining reserved category candidates on merit.
2.6 The Tribunal, after noticing the judgment of the Rajasthan High
Court dated 09.02.2011 in S.B. Civil Writ Petition No.4948 of 2009,
disposed of the O.A. and directed BSNL to consider the candidature of
the original applicant – respondent No.1 herein, if sufficient vacancies
exist for placement of the candidates of OBC and further his candidature
shall be considered against the present and future vacancies on OBC
category.
5
2.7 Feeling aggrieved and dissatisfied with the judgment and order
passed by the Tribunal, BSNL preferred the writ petition before the High
Court and by the impugned judgment and order and by relying upon the
decisions of this Court in the case of Indra Sawhney Vs. Union of
India, 1992 Supp (3) SCC 217; R.K. Sabharwal Vs. State of Punjab,
(2007) 8 SCC 785; and Rajesh Kumar Daria Vs. Rajasthan Public
Service Commission, (2007) 8 SCC 785 has dismissed the said writ
petition by observing that the BSNL should have given appointment to
Mr. Alok Kumar Yadav and Mr. Dinesh Kumar (candidates belonging to
OBC category) against the vacancies which were not reserved vertically
in the event of shuffling the said two persons to general category
(admittedly both the aforesaid candidates have secured and/or have
more merit than the general category candidates, who were appointed).
The High Court has further observed that consequently the original
applicant could have been selected against the vacancies reserved for
the OBC. By observing so, the High Court has dismissed the writ
petition. Hence, BSNL has preferred the present appeal.
3. We have heard Dr. Rajeev Dhavan alongwith Shri Gaurav Agrawal,
learned Amicus Curiae, Shri Pradeep Kumar Mathur, learned counsel
appearing on behalf of the BSNL and Shri Puneet Jain, learned counsel
appearing on behalf of respondent No.1.
6
4. Learned counsel appearing on behalf of BSNL has heavily relied
upon the decision of this Court in the case of Union of India Vs.
Ramesh Ram, (2010) 7 SCC 234 and submitted that as observed and
held by this Court, in a case, where reserved category candidates are
selected on merit and placed in the list of general category candidates,
they can be adjusted against reserved category vacancies in order to get
a service of higher choice at the time of service allocation. Learned
counsel appearing on behalf of BSNL has heavily relied upon paragraph
42 of the aforesaid decision.
4.1 Relying upon the above decision, it is vehemently submitted by the
learned counsel appearing on behalf of the BSNL that the aforesaid two
candidates namely Mr. Alok Kumar Yadav and Mr. Dinesh Kumar were
rightly considered in the reserved category pool.
4.2 It is submitted that if the view taken by the High Court is accepted,
in that case, the two OBC candidates, who secured more marks than the
relaxed cut-off marks of general category candidates are adjusted in
general category and thereby vacancies so created in the OBC category
would have to be filled in by respondent No.1 herein – original applicant
which would result in shuffling of the candidates and would unsettle the
entire selection process. It is further submitted by learned counsel
appearing on behalf of BSNL that the High Court has failed to take note
of the fact that vacancies in the general category were only five and they
7
were already filled in and therefore, insertion of two OBC candidates into
the general category select list would expel two already selected
candidates of general category who had secured undisputedly more
marks than the original claimant thereby unsettling the entire selection
process.
4.3 Making above submissions and relying upon the above decisions,
it is prayed to allow the present appeal.
5. Dr. Rajeev Dhavan, learned Senior counsel, assisted by Shri
Gaurav Agrawal, learned Amicus Curiae and Shri Puneet Jain, learned
counsel appearing on behalf of respondent No.1 have vehemently
submitted that as such the controversy in the matter is squarely covered
by the decision of this Court in the case of Indra Sawhney (supra). It is
submitted that the reserved category candidates having obtained more
marks than the last candidate in general category candidates will have to
be adjusted against the general category quota and they were required
to be considered in the general category pool, thereby the remaining
candidates belonging to the reserved category were required to be
appointed against the quota meant for reserved category. It is submitted
that in the present case, those two candidates, namely, Mr. Alok Kumar
Yadav and Mr. Dinesh Kumar, secured more marks than the last of the
general category candidates selected and appointed and therefore those
two candidates were required to be adjusted and/or considered against
8
the general category pool. The BSNL considered the appointment of the
aforesaid two candidates in the reserved category and thereby caused a
loss to the reserved category candidates, who could have been
appointed if the aforesaid two candidates belonging to the reserved
category would have been adjusted and/or appointed in the general
pool. It is submitted therefore that the High Court has rightly directed to
consider the candidature of respondent No.1 herein – original applicant,
being a wait listed candidate in the reserved category.
6. Heard the learned counsel for the respective parties at length.
7. The short question which is posed for the consideration of this
Court is:-
“Whether in a case where the reserved category
candidates secured more marks than the general
category candidates, such reserved category candidates
will have to be first adjusted in the general category pool
and they shall be considered for appointment in the
general category pool or against the vacancies meant for
reserved category candidates?
8. While considering the aforesaid issue, few decisions of this Court
on the above point are required to be referred to.
8.1 In the case of Indra Sawhney (supra) in paragraph 812, it is
observed and held as under:-
“812. We are also of the opinion that this rule of 50%
applies only to reservations in favour of backward classes
made under Article 16(4). A little clarification is in order at
this juncture : all reservations are not of the same nature.
There are two types of reservations, which may, for the
sake of convenience, be referred to as “vertical
9
reservations” and “horizontal reservations”. The
reservations in favour of Scheduled Castes, Scheduled
Tribes and Other Backward Classes [under Article 16(4)]
may be called vertical reservations whereas reservations
in favour of physically handicapped [under clause (1) of
Article 16] can be referred to as horizontal reservations.
Horizontal reservations cut across the vertical
reservations — what is called interlocking reservations. To
be more precise, suppose 3% of the vacancies are
reserved in favour of physically handicapped persons; this
would be a reservation relatable to clause (1) of Article
16. The persons selected against this quota will be placed
in the appropriate category; if he belongs to SC category
he will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open competition
(OC) category, he will be placed in that category by
making necessary adjustments. Even after providing for
these horizontal reservations, the percentage of
reservations in favour of backward class of citizens
remains — and should remain — the same. This is how
these reservations are worked out in several States and
there is no reason not to continue that procedure.”
8.2 In Rajesh Kumar Daria (supra), in paragraphs 8 to 11, it is
observed and held as under:-
“8. We may also refer to two related aspects before
considering the facts of this case. The first is about the
description of horizontal reservation. For example, if there
are 200 vacancies and 15% is the vertical reservation for
SC and 30% is the horizontal reservation for women, the
proper description of the number of posts reserved for
SC, should be:“For SC : 30 posts, of which 9 posts are for
women.” We find that many a time this is wrongly
described thus:“For SC : 21 posts for men and 9 posts for
women, in all 30 posts.” Obviously, there is, and there can
be, no reservation category of “male” or “men”.
9. The second relates to the difference between the
nature of vertical reservation and horizontal reservation.
10
Social reservations in favour of SC, ST and OBC under
Article 16(4) are “vertical reservations”. Special
reservations in favour of physically handicapped, women,
etc. under Articles 16(1) or 15(3) are “horizontal
reservations”. Where a vertical reservation is made in
favour of a Backward Class under Article 16(4), the
candidates belonging to such Backward Class, may
compete for non-reserved posts and if they are appointed
to the non-reserved posts on their own merit, their
number will not be counted against the quota reserved for
respective Backward Class. Therefore, if the number of
SC candidates, who by their own merit, get selected to
open competition vacancies, equals or even exceeds the
percentage of posts reserved for SC candidates, it cannot
be said that the reservation quota for SCs has been filled.
The entire reservation quota will be intact and available in
addition to those selected under open competition
category. (Vide Indra Sawhney [Indra Sawhney v. Union
of India, 1992 Supp (3) SCC 217], R.K.
Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union
of India v. Virpal Singh Chauhan [ (1995) 6 SCC 684]
and Ritesh R. Sah v. Y.L. Yamul [(1996) 3 SCC 253]. But
the aforesaid principle applicable to vertical (social)
reservations will not apply to horizontal (special)
reservations. Where a special reservation for women is
provided within the social reservation for Scheduled
Castes, the proper procedure is first to fill up the quota for
Scheduled Castes in order of merit and then find out the
number of candidates among them who belong to the
special reservation group of “Scheduled Caste women”. If
the number of women in such list is equal to or more than
the number of special reservation quota, then there is no
need for further selection towards the special reservation
quota. Only if there is any shortfall, the requisite number
of Scheduled Caste women shall have to be taken by
deleting the corresponding number of candidates from the
bottom of the list relating to Scheduled Castes. To this
extent, horizontal (special) reservation differs from vertical
(social) reservation. Thus women selected on merit within
the vertical reservation quota will be counted against the
horizontal reservation for women. Let us illustrate by an
example:
11
If 19 posts are reserved for SCs (of which the
quota for women is four), 19 SC candidates shall
have to be first listed in accordance with merit,
from out of the successful eligible candidates. If
such list of 19 candidates contains four SC
woman candidates, then there is no need to
disturb the list by including any further SC
woman candidate. On the other hand, if the list of
19 SC candidates contains only two woman
candidates, then the next two SC woman
candidates in accordance with merit, will have to
be included in the list and corresponding number
of candidates from the bottom of such list shall
have to be deleted, so as to ensure that the final
19 selected SC candidates contain four woman
SC candidates. (But if the list of 19 SC
candidates contains more than four woman
candidates, selected on own merit, all of them
will continue in the list and there is no question of
deleting the excess woman candidates on the
ground that “SC women” have been selected in
excess of the prescribed internal quota of four.)
10. In this case, the number of candidates to be
selected under general category (open competition), were
59, out of which 11 were earmarked for women. When the
first 59 from among the 261 successful candidates were
taken and listed as per merit, it contained 11 woman
candidates, which was equal to the quota for “general
category women”. There was thus no need for any further
selection of woman candidates under the special
reservation for women. But what RPSC did was to take
only the first 48 candidates in the order of merit (which
contained 11 women) and thereafter, fill the next 11 posts
under the general category with woman candidates. As a
result, we find that among 59 general category candidates
in all 22 women have been selected consisting of eleven
woman candidates selected on their own merit
(candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and
41 of the selection list) and another eleven (candidates at
Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 and 80 of
the selection list) included under reservation quota for
“general category women”. This is clearly impermissible.
12
The process of selections made by RPSC amounts to
treating the 20% reservation for women as a vertical
reservation, instead of being a horizontal reservation
within the vertical reservation.
11. Similarly, we find that in regard to 24 posts for
OBC, 19 candidates were selected by RPSC in
accordance with merit from among OBC candidates
which included three woman candidates. Thereafter,
another five women were selected under the category of
“OBC women”, instead of adding only two which was the
shortfall. Thus there were in all 8 women candidates
among the 24 OBC candidates found in the selection list.
The proper course was to list 24 OBC candidates as per
the merit and then find out number of woman candidates
among them, and only fill the shortfall to make up the
quota of five for women.”
(emphasis supplied)”
8.3 In the case of Uttaranchal Public Service
Commission Vs. Mamta Bisht, (2010) 12 SCC 204, the High Court
took the view that the reserved category candidate, on her own merit
was entitled to be considered in the general category and she could not
have been counted against the reserved category. While upholding the
judgment of the High Court, this Court observed and held in paragraphs
3, 4, 13 and 15 as under:-
“3. Out of 42 posts, 26 were filled up by general
category and 16 by reserved category candidates. Some
women candidates stood selected in the general category
while others had been given the benefit of horizontal
reservation being residents of Uttaranchal. Respondent 1,
being aggrieved preferred Writ Petition No. 780 of 2003
(M/B) in the High Court of Uttaranchal seeking quashment
of select list dated 31-7-2003 mainly on the ground that
women candidates belonging to Uttaranchal had secured
13
marks making them eligible to be selected in the general
category and had it been done so, Respondent 1 could
have been selected in the reserved category being a
woman of Uttaranchal. It had also been pleaded in the
petition that some of the women candidates who not only
claimed the benefit of horizontal reservation but have
been selected giving the said benefit, did not submit their
respective certificate of domicile at the time of filling up
the application forms but they produced the said
certificate at a later stage and it was accepted.
4. The High Court accepted the first submission of
Respondent 1 after examining the record of selection and
came to the conclusion that the last selected woman
candidate who was given the benefit of horizontal
reservation for Uttaranchal women had secured marks
higher than the last selected candidate in the general
category. Thus, the said candidate ought to have been
appointed against the general category vacancy and
Respondent 1 ought to have been offered the
appointment giving her the benefit of horizontal
reservation for Uttaranchal women. Hence, these
appeals.
***
13. In fact, the High Court allowed the writ petition only
on the ground that the horizontal reservation is also to be
applied as vertical reservation in favour of reserved
category candidates (social) as it held as under:
‘In view of the above, Neetu Joshi (Sl. No. 9, Roll
No. 12320) has wrongly been counted by
Respondent 3/Commission against five seats
reserved for Uttaranchal Women General
Category as she has competed on her own merit
as general candidate and as the fifth candidate
the petitioner should have been counted for
Uttaranchal Women General Category seats.’
Admittedly, the said Neetu Joshi has not been
impleaded as a respondent. It has been stated at the Bar
that an application for impleadment had been filed but
there is nothing on record to show that the said
application had ever been allowed. Attempt had been
14
made to implead some successful candidates before this
Court but those applications stood rejected by this Court.
14. The view taken by the High Court on application of
horizontal reservation is contrary to the law laid down by
this Court in Rajesh Kumar Daria v. Rajasthan Public
Service Commission [(2007) 8 SCC 785], wherein dealing
with a similar issue this Court held as under : (SCC pp.
790-91, para 9)
‘9. The second relates to the difference between
the nature of vertical reservation and horizontal
reservation. Social reservations in favour of SCs,
STs and OBCs under Article 16(4) are “vertical
reservations”. Special reservations in favour of
physically handicapped, women, etc. under
Articles 16(1) or 15(3) are “horizontal
reservations”. Where a vertical reservation is
made in favour of a Backward Class under Article
16(4), the candidates belonging to such
Backward Class, may compete for non-reserved
posts and if they are appointed to the nonreserved posts on their own merit, their number
will not be counted against the quota reserved for
respective Backward Class. Therefore, if the
number of SC candidates, who by their own
merit, get selected to open competition
vacancies, equals or even exceeds the
percentage of posts reserved for SC candidates,
it cannot be said that the reservation quota for
SCs has been filled. The entire reservation quota
will be intact and available in addition to those
selected under open competition category.
(Vide Indra Sawhney v. Union of India, 1992
Supp (3) SCC 217], R.K. Sabharwal v. State of
Punjab [(1995) 2 SCC 745], Union of
India v. Virpal Singh Chauhan [(1995) 6 SCC
684] and Ritesh R. Sah v. Y.L. Yamul [(1996) 3
SCC 253].) But the aforesaid principle applicable
to vertical (social) reservations will not apply to
horizontal (special) reservations. Where a special
reservation for women is provided within the
social reservation for Scheduled Castes, the
15
proper procedure is first to fill up the quota for
Scheduled Castes in order of merit and then find
out the number of candidates among them who
belong to the special reservation group of
“Scheduled Caste women”. If the number of
women in such list is equal to or more than the
number of special reservation quota, then there
is no need for further selection towards the
special reservation quota. Only if there is any
shortfall, the requisite number of Scheduled
Caste women shall have to be taken by deleting
the corresponding number of candidates from the
bottom of the list relating to Scheduled
Castes. To this extent, horizontal (special)
reservation differs from vertical (social)
reservation. Thus women selected on merit
within the vertical reservation quota will be
counted against the horizontal reservation for
women.’
15. In view of the above, it is evident that the judgment
and order of the High Court is not in consonance with the
law laid down by this Court in Rajesh Kumar Daria [(2007) 8
SCC 785]. The judgment and order impugned herein is liable
to be set aside and all the consequential orders become
unenforceable and inconsequential. Thus, the appeals
succeed and are allowed. The judgment and order of the
High Court dated 26-10-2005 passed in Mamta
Bisht v. State [WPMB No. 780 of 2003, order dated 26-10-
2005 (Utt)] is hereby set aside. No costs.”
(emphasis in original)
8.4 In Ritesh R. Sah v. Y.L. Yamul, (1996) 3 SCC 253 after noticing
the Larger Bench decision of this Court in the case of Indra Sawhney
(supra) and R.K. Sabharwal (supra), it is observed in paragraph 13 to
16 as under:
“13. There cannot be any dispute with the proposition
that if a candidate is entitled to be admitted on the basis
16
of his own merit then such admission should not be
counted against the quota reserved for Scheduled Caste
or Scheduled Tribe or any other reserved category since
that will be against the constitutional mandate enshrined
in Article 16(4).
14. In Indra Sawhney v. Union of India [1992 Supp (3)
SCC 217] commonly known as Mandal case, this Court
held thus : (SCC p. 735, para 811)
‘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.’
15. In R.K. Sabharwal v. State of Punjab [(1995) 2
SCC 745] the Constitution Bench of this Court considered
the question of appointment and promotion and roster
points vis-à-vis reservation and held thus : (SCC p. 750,
para 4)
‘4. When a percentage of reservation is fixed
in respect of a particular cadre and the roster
indicates the reserve points, it has to be taken
that the posts shown at the reserve points are to
be filled from amongst the members of reserved
categories and the candidates belonging to the
general category are not entitled to be
considered for the reserved posts. On the other
hand the reserved category candidates can
compete for the non-reserved posts and in the
event of their appointment to the said posts their
number cannot be added and taken into
consideration for working out the percentage of
reservation. Article 16(4) of the Constitution of
India permits the State Government to make any
provision for the reservation of appointments or
17
posts in favour of any Backward Class of citizens
which, in the opinion of the State is not
adequately represented in the Services under the
State. It is, therefore, incumbent on the State
Government to reach a conclusion that the
Backward Class/Classes for which the
reservation is made is not adequately
represented in the State Services. While doing
so the State Government may take the total
population of a particular Backward Class and its
representation in the State Services. When the
State Government after doing the necessary
exercise makes the reservation and provides the
extent of percentage of posts to be reserved for
the said Backward Class then the percentage
has to be followed strictly. The prescribed
percentage cannot be varied or changed simply
because some of the members of the Backward
Class have already been appointed/promoted
against the general seats. As mentioned above
the roster point which is reserved for a Backward
Class has to be filled by way of
appointment/promotion of the member of the said
class. No general category candidate can be
appointed against a slot in the roster which is
reserved for the Backward Class. The fact that
considerable number of members of a Backward
Class have been appointed/promoted against
general seats in the State Services may be a
relevant factor for the State Government to
review the question of continuing reservation for
the said class but so long as the
instructions/rules providing certain percentage of
reservations for the Backward Classes are
operative the same have to be followed. Despite
any number of appointees/promotees belonging
to the Backward Classes against the general
category posts the given percentage has to be
provided in addition.’
16. In Union of India v. Virpal Singh Chauhan [(1995)
6 SCC 684] (SCC at p. 705) it has been held that while
determining the number of posts reserved for Scheduled
18
Castes and Scheduled Tribes, the candidates belonging
to reserved category but selected/promoted on the rule of
merit (and not by virtue of rule of reservation) shall not be
counted as reserved category candidates.”
8.5 In a more recent decision this Court in the case of Saurav Yadav
Vs. State of U.P., (2021) 4 SCC 542 after referring to all the earlier
judgments on vertical reservation has observed and held that it is well
settled that candidates belonging to any of the vertical reservation
categories are entitled to be selected in “open or general” category and it
is also further observed that if such candidates belonging to reserved
categories are entitled to be selected on the basis of their own merit,
their selection cannot be counted against the quota reserved for the
categories that they belong.
8.6 Similar view has been expressed by this Court in another recent
decision of this Court in the case of Sadhana Singh Dangi Vs. Pinki
Asati, (2022) 1 SCALE 534. By the said decision, it is reiterated that the
reserved category candidates securing higher marks than the last of the
general category candidates are entitled to get seat/post in unreserved
categories. It is further observed and held that even while applying
horizontal reservation, merit must be given precedence and if the
candidates, who belong to SCs, STs and OBCs have secured higher
marks or are more meritorious, they must be considered against the
seats meant for unreserved candidates. It is further observed that the
19
candidates belonging to reserved categories can as well stake claim to
seats in unreserved categories if their merit and position in the merit list
entitles them to do so.
9. Applying the law laid down by this Court in the aforesaid decisions
to the facts of the case on hand, it is noted that the aforesaid two
candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,
belonging to OBC category, were required to be adjusted against the
general category as admittedly they were more meritorious than the last
of the general category candidates appointed and that their
appointments could not have been considered against the seats meant
for reserved category. Consequently, after considering their
appointments in the general category, the seats meant for reserved
category were required to be filled in from and amongst the other
remaining reserved category candidates on merit such as respondent
No.1 herein. If such a procedure would have been followed, the original
applicant – respondent No.1 would have got appointed on merit in the
reserved category seats in the vacancy caused due to the above
procedure. Therefore, as such the High Court has not committed any
error in observing and holding that the aforesaid two candidates, namely,
Mr. Alok Kumar Yadav and Mr. Dinesh Kumar, will have to be adjusted
against the general category candidates and accordingly respondent
20
No.1 being a reserved category candidate and being at Sr. No.1 in the
waiting list of reserved category was to be appointed.
However, at the same time, it cannot be disputed that by
reshuffling and on insertion of two OBC candidates into general category
select list, two general category candidates already appointed shall have
to be expelled and/or shall have to be removed, who are working since
long and it may unsettle the entire selection process. Therefore, to strike
a balance and to ensure that the two general category candidates, who
are already appointed will not have to be removed and at the same time,
respondent No.1 – original applicant being a reserved category
candidate also gets accommodated, if he is so appointed, in exercise of
the powers under Article 142 of the Constitution of India, we propose to
pass an order that on reshuffling and on respondent No.1 – original
applicant being appointed now against the reserved category seats and
while the aforesaid two candidates, namely, Mr. Alok Kumar Yadav and
Mr. Dinesh Kumar, belonging to reserved category, to be treated in the
general category seats, two candidates already appointed and belonging
to general category shall not be removed. However, respondent No.1
shall get the seniority from the date the general category candidates
were appointed, who were having lesser merit than the aforesaid two
reserved category candidates, namely, Mr. Alok Kumar Yadav and Mr.
Dinesh Kumar.
21
10. Now, so far as the decision of this Court in the case of Ramesh
Ram (supra) relied upon by learned counsel appearing on behalf of the
BSNL is concerned, the aforesaid decision is not applicable to the facts
of the case on hand. The said decision is distinguishable on facts. In the
said case, this Court was considering Rule 16(2) of Civil Services
Examination Rules relating to Civil Services Examination held by the
Union Public Service Commission. Rule 16(2) of the Rules reads as
under:-
“16(2) While making service allocation, the candidates
belonging to the Scheduled Castes, the Scheduled Tribes or
Other Backward Classes recommended against unreserved
vacancies may be adjusted against reserved vacancies by the
Government if by this process they get a service of higher
choice in the order of their preference.”
The said case was a case of Civil Services, where the selected
candidates were having different preferences and in a given case, it may
happen that the general category candidates, who are less meritorious
and the reserved category candidates having more marks than the
general category candidates and consequently they are to be adjusted
against the reserved category and they can possibly secure posts in a
service of a higher preference. Therefore, option was given to such
candidates belonging to reserved category to consider their candidature
against the reserved category only despite having higher merit than
General Category Candidates. However, in the present case, there is no
22
question of any such preference. On interpretation of Rule 16(2) in
paragraph 42, it was observed and held as under:-
“42. Therefore, we are of the firm opinion that MRC
candidates who avail the benefit of Rule 16(2) and are
eventually adjusted in the reserved category should be
counted as part of the reserved pool for the purpose of
computing the aggregate reservation quotas. The seats
vacated by MRC candidates in the general pool will therefore
be offered to general category candidates. This is the only
viable solution since allotting these general category seats
(vacated by MRC candidates) to relatively lower-ranked
reserved category candidates would result in aggregate
reservations exceeding 50% of the total number of available
seats. Hence, we see no hurdle to the migration of MRC
candidates to the reserved category.”
We fail to appreciate how the said decision is applicable to facts of
the case on hand and/or of any assistance to the BSNL faced with the
decisions of this Court in the case of Indra Sawhney (supra) and other
decisions referred to hereinabove.
11. In view of the above and for the reasons stated above, the present
appeal fails and the same deserves to be dismissed and is accordingly
dismissed. The High Court has rightly observed and held that two
reserved category candidates, namely, Mr. Alok Kumar Yadav and
Mr. Dinesh Kumar having more marks than the general category
candidates appointed, were entitled to the appointment in the general
category and the seats reserved for OBC category were required to be
filled in from and amongst the remaining candidates belonging to the
OBC category. Consequently, respondent No.1 – original applicant was
23
entitled to the appointment on such post. However, at the same time in
exercise of the powers under Article 142 of the Constitution of India, it is
observed and directed that on reshuffling, the two candidates belonging
to general category shall not be removed from service as they are
working since long. However, at the same time, the respondent No.1
shall be entitled to the seniority from the date, the general category
candidates having lesser marks than the aforesaid two reserved
category candidates were appointed.
With this, the present appeal stands dismissed. However, in the
facts and circumstances, there shall be no order as to costs.
12. Before parting, we would like to deeply appreciate the services
rendered by Dr. Rajeev Dhavan, learned Senior Advocate and Shri
Gaurav Agrawal, learned Advocate, who have assisted the Court as
Amicus Curiae and we are thankful to both of them for their valuable
assistance.
…………………………………..J.
[M.R. SHAH]
NEW DELHI; …………………………………..J.
APRIL 28, 2022. [B.V. NAGARATHNA]
24
Comments
Post a Comment