Union
Of India vs Ramesh Ram & Ors. on 7 May, 2010
Author:
K Balakrishnan
Bench:
Altamas Kabir, Cyriac Joseph, C.K. Prasad
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4310-4311 OF 2010
[Arising out of SLP (C) Nos.13571-72 of 2008]
IN RE:
Union of India ...
Appellant
Vs.
Ramesh Ram and Ors. etc. ... Respondents With
CA Nos.4315-4316/2010 @ SLP
(C) Nos.13297-98/2008 CA No.4319/2010 @ SLP (C) No. 13581 of 2008 CA
Nos.4324-4328/2010 @ SLP (C) Nos. 14834-38 of 2008 And
WP(C) Nos. 297, 312, 336,
414, 416 & 539 of 2008
JUDGMENT
K.G. BALAKRISHNAN, CJI
1. Leave granted.
2. The constitutional
validity of sub-rules (2) to (5) of Rule 16 of the Civil Service Examination
Rules (hereinafter `Rules') relating to civil services examinations held by the
Union Public Service Commission in the years 2005 to 2007 is the subject-matter
of these appeals by special leave. A three Judge Bench of this Court, by order
dated 14.5.2009 has referred these cases to the Constitution Bench as it raises
an important legal question as to whether candidates belonging to reserved
category, who get recommended against general/unreserved 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 reservation category.
3. Selection to three All
India Services (Indian Administrative Service, Indian Foreign Service and
Indian Police Service) and fifteen Group `A' Services and three Group `B'
officers in various Government departments are made by the Union Public Service
Commission (hereinafter `UPSC'), by conducting Civil Service Examinations
periodically. Civil Service Examinations are held as per the Civil Service
Examinations Rules notified in regard to each examination. The Rules for the
Civil Service Examination which was to be held in 2005 by the UPSC were
published by the Department of Personnel and Training (hereinafter `DOP&T')
vide Notification dated 4.12.2004.
4. To appreciate the issue,
it will be necessary to refer to the relevant rules. The Preamble to the Rules enumerates
21 services. Rule 1 provides that the examination will be conducted by the UPSC
in the manner prescribed in Appendix-I to the Rules.
4.1) Rule 2 of the Rules
relates to preferences and is extracted below:
“2. A
candidate shall be required to indicate in his/her application form for the
Main Examination his/her order of preferences for various services/posts for
which he/she would like to be considered for appointment in case he/she is
recommended for appointment by Union Public Service Commission.
A
candidate who wishes to be considered for IAS/IPS shall be required to indicate
in his/her application if he/she would like to be considered for allotment to
the State to which he/she belongs in case he/she is appointed to the IAS/IPS.
Note.--The
candidate is advised to be very careful while indicating preferences for
various services/posts. In this connection, attention is also invited to rule
19 of the Rules. The candidate is also advised to indicate all the
services/posts in the order of preference in his/her application form. In case
he/she does not give any preference for any services/posts, it will be assumed that he/she has no specific
preference for those services. If he/she is not allotted to any one of the
services/posts for which he/she has indicated preference, he/she shall be
allotted to any of the remaining services/posts in which there are vacancies
after allocation of all the candidates who can be allocated to services/posts
in accordance with their preferences.
4.2) Rule 3 relates to
number of vacancies and provision for reservation and it reads as follows:
“3.
The number of vacancies to be filled on the result of the examination will be
specified in the Notice issued by the Commission. Reservation will be made for
candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward
Classes and physically disabled categories in respect of vacancies as may be
fixed by the Government.”;
4.3) Rule 15 provides for
three examinations namely preliminary examination, main written examination and
interview test as follows:
“15.
Candidates who obtained such minimum qualifying marks in the Preliminary
Examination as may be fixed by the Commission at their discretion shall be
admitted to the Main Examination; and candidates who obtain such minimum qualifying
marks in the Main Examination (written) as may be fixed by the Commission at
their discretion shall be summoned by them for an interview for personality
test:
Provided
that candidates belonging to the Scheduled Castes or Scheduled Tribes or Other
Backward Classes may be summoned for an interview for a personality test by the
Commission by applying relaxed standards in the Preliminary Examination as well
as Main Examination (Written) if the Commission is of the opinion that
sufficient number of candidates from these communities are not likely to be
summoned for interview for a personality test on the basis of the general
standard in order to fill up vacancies reserved for them.”;
4.4) Rule 16 lays down the
manner of selection, preparation of merit list and selection of candidates. The
said rule is extracted below:
“16.(1)
After interview, the candidates will be arranged by the Commission in the order
of merit as disclosed by the aggregate marks finally awarded to each candidate
in the Main Examination. Thereafter, the Commission shall, for the purpose of
recommending candidates against unreserved vacancies, fix a qualifying mark
(hereinafter referred to as general qualifying standard) with reference to the
number of unreserved vacancies to be filled up on the basis of the Main
Examination. For the purpose of recommending Reserved Category candidates
belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes
against reserved vacancies, the Commission may relax the general qualifying standard
with reference to number of reserved vacancies to be filled up in each of these
categories on the basis of the Main Examination:
Provided
that the candidates belonging to the Scheduled Castes, Scheduled Tribes and the
Other Backward Classes who have not availed themselves of any of the
concessions or relaxations in the eligibility or the selection criteria, at any
stage of the examination and who after taking into account the general
qualifying standards are found fit for recommendation by the Commission shall
not be recommended against the vacancies reserved for Scheduled Castes,
Scheduled Tribes and the Other Backward Classes.
(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 Govt. if by this process they
get a service of higher choice in the order of their preference.
(3)
The Commission may further lower the qualifying standards to take care of any
shortfall of candidates for appointment against unreserved vacancies and any
surplus of candidates against reserved vacancies arising out of the provisions
of this rule, the Commission may make the recommendations in the manner
prescribed in sub-rules (4) and (5).
(4)
While recommending the candidates, the Commission shall, in the first instance,
take into account the total number of vacancies in all categories. This total
number of recommended candidates shall be reduced by the number of candidates
belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward
Classes who acquire the merit at or above the fixed general qualifying standard
without availing themselves of any concession or relaxation in the eligibility
or selection criteria in terms of the proviso to sub-rule (1). Along with this
list of recommended candidates, the Commission shall also declare a
consolidated reserve list of candidates which will include candidates from
general and reserved categories ranking in order of merit below the last
recommended candidate under each category. The number of candidates in each of
these categories will be equal to the number of Reserved Category candidates
who were included in the first list without availing of any relaxation or concession
in eligibility or selection criteria as per proviso to sub-rule (1). Amongst
the reserved categories, the number of candidates from each of the Scheduled
Caste, the Scheduled Tribe and Other Backward Class categories in the reserve
list will be equal to the respective number of vacancies reduced initially in
each category.
(5)
The candidates recommended in terms of the provisions of sub-rule (4), shall be
allocated by the Government to the services and where certain vacancies still
remain to be filled up, the Government may forward a requisition to the
Commission requiring it to recommend, in order of merit, from the reserve list,
the same number of candidates as requisitioned for the purpose of filling up
the unfilled vacancies in each category.”
4.5) Rule 19 provides
that due consideration will be given at the time of making allocation on the
results of the examination to the preferences expressed by a candidate for
various services at the time of his application and the appointment to various
services will also be governed by the Rules/Regulations in force, as applicable
to the respective Services at the time of appointment.
5. The total vacancies
notified by the participating services for the Civil Service Examination, 2005
were 457 made up of General Category : 242, OBC category : 117, Scheduled
Castes : 166 and Scheduled Tribes : 32. As per Rule 16(1) and (4), UPSC
recommended 425 candidates in the first phase made up of the following: General
-- 210, OBC -- 117 (including 31 merit candidates); Scheduled Castes -- 66
(including 1 merit candidate) and Scheduled Tribes -- 32. A consolidated
Reserve list (wait-list) was also prepared consisting of 64 candidates. The
DOP&T after allocation of the candidates from the first list, made a
requisition for recommendation of candidates through the operation of the
reserve list. 26 Meritorious OBC candidates and one Meritorious Scheduled Caste
candidate recommended against unreserved vacancies, opted for reserved vacancies as by that process, they
got a service of higher choice in the order of preference. If the said 27
meritorious reserved category candidates had been considered only for service
allocation against unreserved vacancies in competition with the General
Category candidates, they would have got a service of lower choice. Rule 16(2)
enabled the meritorious candidate of any of the reservation categories to get a
service of higher preference so that he may not be placed at a disadvantaged
position vis a vis other candidates of his category.
6. The DOP andT could
therefore adjust only 5 out of the 31 Meritorious Category OBC candidates
through their merit-cum-service preference option as General Candidates. As a
result, the UPSC recommended under Rule 16(5) of the Rules, 27 General Category
candidates and 5 OBC candidates from the consolidated Reserve List.
7. Certain OBC candidates
in the Reserve (wait list) filed applications before the Central Administrative
Tribunal, Madras Bench, challenging Rule 16(2). It was contended that
adjustment of OBC merit candidates against OBC reservation vacancies was
illegal. According to them, such candidates should be adjusted against the
general (unreserved) vacancies, as that would have allowed more posts for OBC
candidates and would have allowed the lower ranked OBC candidates a better
choice of service. They contended that more meritorious OBC candidates should be
satisfied with lower choice of service as they became general (unreserved)
candidates by reason of their better performance.
8. The Tribunal, after
interpreting amended Rule 16(2) in the light of the various judgments of this
Court, concluded that meritorious OBC candidates who were selected on merit
must be adjusted against the `General Category'. However, it ordered that Rule
16(2) may be applied in terms of decision of this Court in Anurag Patel vs. U.P. Public Service Commission &
Ors., (2005) 9 SCC 742, to ensure that allocation of service is in accordance
with rank-cum-preference with priority given to meritorious candidates for
service allocation.
9. The Union of India and
other aggrieved candidates preferred Writ Petitions before the Madras High
Court challenging the order of the Central Administrative Tribunal. Some other
aggrieved candidates got themselves impleaded in the said proceedings. By the
impugned order dated 20.3.2008, the High Court held Rule 16(2) as
unconstitutional. Consequently, the High Court set aside the select lists and
directed the Government of India and UPSC to redo service allocation de hors
Rule 16(2).
10. The first batch of
civil appeals @ SLP [C] Nos. 13571-13572 of 2008 is filed by the Union of India
against the said order dated 20.3.2008 in W.P. [C] Nos.1814 & 1815 of
2008. Other persons aggrieved by the said order have filed the remaining civil
appeals. Being aggrieved by the action of the Union Public Service Commission
and the Government of India by which candidates in Reserved Category selected
in General Category were given choice to opt for service of higher preference
in terms of Rule 16(2) of the Rules, some of the reservation category
candidates have filed Writ Petition (C) Nos.297, 312, 336 & 416 of 2008
under Art. 32 of the Constitution of India to declare Rule 16(2),(3),(4) and
(5) of the Civil Services Examination Rules, 2005 as ultra vires being
inconsistent with Rule 16(1) of the said Rules, as violative of Articles 14,
16(4) and 335 of Constitution of India, consequential reliefs.
11. We heard Mr. Gopal Subramanium,
Learned Solicitor General of India, on behalf of the Union of India. Ms. Indira
Jaisingh, Learned ASG appeared in W.P. (C) No. 297/1008. Mr. P.P. Rao, Sr.
Adv., Mr. P.S. Patwalia, Sr. Adv. and Mr. Anirudh Sharma, Adv. represented the
appellants in the other appeals. Mr. Raju Ramachandran, Sr. Adv., Mr. Nidheesh
Gupta, Sr. Adv., Prof. Ravi Varma Kumar, Sr. Adv., Mr. Santosh Paul, Adv., Mr.
S.P. Sinha, Adv., Mr. Praveen Agarwal, Adv., and Mr. Shiv Pujan Singh Adv.,
appeared on behalf of the writ petitioners and the respondents in the writ
appeals.
12. The case of the
contesting respondents is that the newly introduced system which is different
from the single list system followed earlier (prior to amendment of CSE Rules)
will undermine the rights of the Reserved Category candidates to get assigned
to services of higher preference (e.g. IAS, IPS or IRS). They also urged that
this system will reduce the aggregate number of reserved candidates who will be
selected while simultaneously increasing the number of general candidates. It
also puts candidates who come through the second list at a disadvantage in
terms of seniority and promotions for rest of their career in their respective
services. By the impugned order, the High Court had vindicated these grievances,
particularly those raised by OBC candidates.
13. In the light of the
submissions made by the learned counsel appearing for different appellants, the
following questions arise for consideration:
I. Whether the Reserved Category candidates who were selected on merit (i.e. MRCs) and placed in the list of General Category candidates could be considered as Reserved Category candidates at the time of “service allocation”?II. Whether Rule 16 (2), (3), (4) and (5) of the CSE Rules are inconsistent with Rule 16 (1) and violative of Articles 14, 16 (4) and 335 of the Constitution of India?III. Whether the order of the Central Administrative Tribunal was valid to the extent that it relied on Anurag Patel v. Uttar Pradesh Public Service Commission and Others, (2005) 9 SCC 742 (which in turn had referred to the judgment in Ritesh R. Sah v. Dr. Y.L.Yamul and Others, (1996) 3 SCC 253, which dealt with reservations for the purpose of admission to post graduate medical courses); and whether the principles followed for reservations in admissions to educational institutions can be applied to examine the constitutionality of a policy that deals with reservation in civil services.
Re:
Question I
14. The relevant provision
is Rule 16(2) of the Civil Services Examination Rules which was amended by a
notification dated 4.12.2004 issued by the Ministry of Personnel, Public
Grievances, and Pensions (DOP&T), New Delhi. The appellants' contention is
that the amended Rule 16 (2) intends to rectify an anomaly, as otherwise, the
interests of the Meritorious Reserved Category (hereinafter `MRC') candidates
who have toiled hard to qualify as per the general qualifying standard would be
jeopardized. Such candidates could find themselves in a position where Reserved
Category candidates who are less meritorious than them can possibly secure
posts in a service of a higher preference. The Union Government contends that
the object of amending Rule 16 (2) is to ensure that such an adverse
incongruous position does not arise for more meritorious candidates.
15. Mr. Gopal Subramanium,
the Learned Solicitor General of India, has brought forth three implications
and repercussions of the amended Rule 16 once it comes into operation:
(i) It affords a
Meritorious Reserved Candidate the benefit of reservation insofar as Service
Allocation is concerned. In other words, if such a Meritorious Reserved
Candidate - although entitled to a post in the General list- is able to secure
a better (or more preferred) post in the Reserved List, Rule 16 (2) comes to
his aid, and he is able to secure the better post. This preserves and protects
inter se merit amongst the Reserved Candidates.
(ii) When Rule 16 (2)
enables a Meritorious Reserved Candidate to secure a post in the Reserved
Category, that Candidate is to be treated as a Reserved Candidate (consistent
with his Reserved Category status as per the application form).
(iii) Once Rule 16 (2) is
operated, the General post that would otherwise have been available to the
Meritorious Reserved Candidate is now filled up by a (Wait Listed) General
Candidate.
The Respondents have
objected to the effect of Rule 16 (2) in so far as the second and third aspects
are concerned. They have no grievance with respect to the first aspect. They
contend that when an MRC candidate is entitled to a General Merit slot, chooses
to opt for a slot earmarked for a reservation category the result should be a
mutual exchange between the meritorious reserved candidate and the reserved
candidate. The MRC candidate will carry the tag of a general candidate even
when he occupies the reservation post and the occupant of the reservation post
will migrate to the general merit slot vacated by the MRC candidate. If the MRC
candidate migrating to reservation category slot is counted as a reservation
candidate, to that extent there will be a reduction in the posts meant for
reservation category candidates.
16. The Civil Services
Examination conducted by Union Public Service Commission (UPSC) has three
stages: Preliminary Examination, Main Examination, and Interview. The
candidates appearing in the Examination have to render information in the
application form indicating their status as General, Other Backward Class
(OBC), Scheduled Castes (SC) or Scheduled Tribes (ST). Moreover, at a later
stage the candidates have to furnish their preferences of services in which
they have to indicate their choices in the event of qualification. This has
been spelt out in Rule 2 of the CSE Rules.
17. In support of their
contentions, the respondents have relied upon the following observations of
this Court in Union of India v. Satya Prakash, (2006)
4 SCC 550, (at paras. 18, 19 and 20):
“18.
By way of illustration, a Reserved Category candidate, recommended by the
Commission without resorting to relaxed standard (i.e. on mer- it) did not get
his own preference 'say IAS' in the merit/open category. For that, he may opt a
pref- erence from the Reserved Category. But simply because he opted a
preference from the Reserved Category does not exhaust quota of OBC category
candidate selected under relaxed standard. Such preference opted by the OBC
candidate who has been recommended by the Commission without resorting to the
relaxed standard (i.e. on merit) shall not be adjusted against the vacancies
re- served for the Scheduled Castes, Scheduled Tribes and other Backward
Classes. This is the mandate of proviso to Sub-rule 2 of Rule 16.
19. In
other words, while a Reserved Category candidate recommended by the Commission
without resorting to the relaxed standard will have the option of preference
from the Reserved Category recommended by the Commission by re- sorting to
relaxed standard, but while computing the quota/percentage of reservation
he/she will be deemed to have been allotted seat as an open category candidate
(i.e. on merit) and not as a Re- served Category candidate recommended by the
Commission by resorting to relaxed standard.
20. If
a candidate of Scheduled Caste, Scheduled Tribe and other Backward Class, who
has been recommended by the Commission without resorting to the relaxed
standard could not get his/her own preference in the merit list, he/she can opt
a preference from the Reserved Category and in such process the choice of
preference of the Reserved Category recommended by resorting to the relaxed
standard will be pushed further down but shall be allotted to any of the
remaining services/posts in which there are vacancies after allocation of all
the candidates who can be allocated to a service/post in accordance with their
preference.”
18. The decision in Satya
Prakash was rendered prior to the amendment of Rule 16(2) and the learned judge
had not contemplated the present version of the rule. Hence, this decision is
clearly distinguishable from the present case. Prior to the decision in Satya
Prakash's case (supra.), the practice had been that a single list of successful
candidates was released in respect of all the vacancies. At that time, MRC
candidates were initially treated as general candidates and had Rule 16(2) not
been amended, a single list would have been released for all 457 posts which
were vacant in the year under consideration. Accordingly, such a list would
have contained 242 General candidates (including 32 MRC candidates). There
would have been a separate list for 117 OBCs, 66 SCs and 32 STs (excluding MRC
candidates). When the MRC Candidates were shifted from the general list to the
reserved list, there was an ouster of the relatively lower ranked Reserved
Category candidates who were initially selected as part of the reserved list.
For example when 27 MRC candidates (26 belonging to OBC and 1 SC) would have
moved from the General List to the Reserved List, 26 OBC and 1 SC candidates
who were ranked lower among the 117 OBC and 66 SC candidates initially selected
in the Reserved Category, would have been ousted.
19. The unamended as well
as amended Rule 16 (2) are as follows:-
Rule 16 (2) in the old
Civil Rule 16 (2) in the current Service Examination Rules Civil Service
Examination Rules (vide notification dated 4.12.2004)
The candidates belonging to
While making service any of the Scheduled Castes allocation, the candidates or
Scheduled Tribes or the belonging to the Scheduled Other Backward Classes
Castes, the Scheduled Tribes may, to the extent of the or Other Backward
Classes number of vacancies recommended against reserved for the Scheduled
unreserved vacancies may be Castes and the Scheduled adjusted against reserved
Tribes and the Other vacancies by the Backward Classes be Government, if by
this recommended by the process, they get a service of Commission by a relaxed
higher choice in the order of standard, subject to the their preference,
fitness of these candidates for selection to services.
Provided that the
candidates belonging to the Scheduled Castes and the Scheduled Tribes and the
Other Backward Classes who have been recommended by the Commission without resorting
to the relaxed standard referred to in this sub-rule shall not be adjusted
against the vacancies reserved for the Scheduled Castes and the Scheduled
Tribes and the Other Backward Classes.
20. The UPSC declares
results in two stages and the same was done in the year 2006. As per the final
result of CSE 2005, out of 457 vacancies, 425 candidates were recommended for
appointment which included 210 General, 117 OBC, 66 SC and 32 ST candidates.
The UPSC was maintaining a consolidated reserve list, i.e. a Wait List of 64
candidates (consisting of 32 general, 31 OBC and 1 SC candidate) ranking in
order of merit below the last recommended candidate under each of these
categories as per Rule 16 (4) and (5) of the CSE Rules, 2005. Admittedly, 31
OBC category candidates who had qualified in the General Merit List were not
included in the General Category and instead they were part of 117 OBC category
candidates selected as part of the Reserved Category. Hence, an equal number of
OBC category candidates who were ranked lower in the order of merit as part of
the Reserved Category seats were initially ousted. The purpose of including
those OBC category candidates who had qualified in the General Category was to
give them a higher preferred service from the vacancies under the OBC category.
The CSE rules were accordingly amended to allow for such a migration.
21. The Learned Solicitor
General has described in detail how along with the list of recommended
candidates, the UPSC also prepares a Consolidated Reserve List. This
Consolidated Reserve List is a Wait List for filling the remaining 32
vacancies. It contained two parallel sub-lists: Wait List A consisting of 32
General Candidates and Wait List B consisting of 32 Reserved Candidates (31
OBCs and 1 SC) the 1 SC candidate would be positioned in the Wait List at the
same position in which the 1 SC candidate was placed amongst the 32 MRC
candidates. Two Wait Lists are prepared so that depending on how the 32 MRCs
are placed and in whatever contingency - whether they are adjusted against
General or Reserved Posts - there will remain a sufficient number of candidates
(both general and reserved) to be adjusted against the balance 32 posts in the
second stage.
22. When Department of
Personnel and Training (DoP&T) received the Lists, the 32 MRC candidates
were added to the list of 210 General candidates but at the same time they were
positioned in the reserved lists of 117 OBC candidates and 66 SC candidates as
well. The UPSC list counts the MRC candidates as part of the Reserved List for
the purpose of ascertaining the reservation quota in terms of percentage. The
rationale cited for this method is that for the purpose of service allocation,
the DOP&T initially counts the MRC candidates in both the General and the
Reserved Lists. These candidates are then placed against the better of the two
services available to them under either of these categories which is of course
based on their order of preference. A Service is allocated by moving downwards
in the merit list in a serial manner, with each candidate in the merit list
getting the best available option as per his/her preference.
23. The respondents have
also placed strong reliance on this Court's decision in Ritesh R. Sah v. Dr. Y.L.Yamul (1996)
3 SCC 253). The question in that case was whether a Reserved Category candidate
who is entitled to be selected for admission in open competition on the basis
of his/her own merit should be counted against the quota meant for the Reserved
Category or should he be treated as a general candidate. The Court reached the
conclusion that when a candidate is admitted to an educational institution on
his own merit, then such admission is not to be counted against the quota
reserved for Schedule Castes or any other Reserved Category. However, it is
pertinent to note that this decision was given in the context of admissions to
medical colleges in which G.B. Pattanaik J. (as His Lordship then was) had
held:
“17.
...In view of the legal position enunciated by this Court in the aforesaid
cases the conclusion is irresistible that a student who is entitled to be
admitted on the basis of merit though belonging to a Reserved Category cannot
be considered to be admitted against seats reserved for Reserved Category. But
at the same time the provisions should be so made that it will not work out to
the disadvantage of such candidate and he may not be placed at a more
disadvantageous position than the other less meritorious Reserved Category candidates.
The aforesaid objective can be achieved if after finding out the candidates
from amongst the Reserved Category who would otherwise come in the open merit
list and then asking their option for admission into the different colleges
which have been kept reserved for Reserved Category and thereafter the cases of
less meritorious Reserved Category candidates should be considered and they
will be allotted seats in whichever colleges the seats should be available. In
other words, while a Reserved Category candidate entitled to admission on the
basis of his merit will have the option of taking admission to the colleges
where a specified number of seats have been kept reserved for Reserved Category
but while computing the percentage of reservation he will be deemed to have
been admitted as an open category candidate and not as a Reserved Category
candidate...”
24. There is an obvious
distinction between qualifying through an entrance test for securing admission
in a medical college and qualifying in the UPSC examinations since the latter
examination is conducted for filling up vacancies in the various civil services.
In the former case, all the successful candidates receive the same benefit of
securing ad- mission in an educational institution. However, in the latter case
there are variations in the benefits that accrue to successful candidates
because they are also competing amongst themselves to secure the service of
their choice.
For example, most
candidates opt for at least one of the first three services [i.e. Indian
Administrative Service (IAS), Indi- an Foreign Service (IFS) and Indian Police
Service (IPS)] when they are asked for preferences. A majority of the candidates
prefer IAS as the first option. In this respect, a Re- served Category
candidate who has qualified as part of the general list should not be
disadvantaged by being assigned to a lower service against the vacancies in the
General Category especially because if he had availed the benefit of his
Reserved Category status, he would have got a service of a higher preference.
With the obvious intention of preventing such an anomaly, Rule 16 (2) provides
that an MRC candidate is at liberty to choose between the general quota or the
respective Reserved Category quota.
25. Some factual examples
can clarify the position. In 2005, an MRC (OBC) candidate attained 21st Rank
overall. With respect to his position in the General Merit List, there were
General Category IAS vacancies available, and he oc- cupied the 17th out of 45
General vacancies in the IAS. Thus, he did not need the assistance of Rule
16(2) to get a post in a more preferred service since he was adjusted against
the General List. Accordingly, he opted out of the Reserved Category. This was
in line with the proposition that when a candidate is entitled to a certain
post on his merit alone, he should not be counted against the reserved quota.
In contrast, another candidate who was an MRC (OBC) candidate obtained 64th
Rank overall in the CSE 2005. At his position in the General List, he was
entitled to a post in the IPS since the General Category IAS vacancies had been
exhausted by candidates above him in the General merit list. However, IPS was
his second preference while IAS was his first preference. If he were to be
considered against the vacancies in the Reserved Category, he would be entitled
to a post in the IAS because the 22 OBC IAS vacancies had not been exhausted at
that point of time. By the operation of Rule 16 (2), he was able to secure a
post in the IAS, while retaining his Reserved Status. Having availed of this
benefit, he was adjusted against the Reserved (OBC) category.
26. Learned Counsel for
respondent questioned the rationale of declaring the CSE results in two phases
in order to support the proposition that even if MRC candidates are given a
service of a higher preference, they should not oust lower-ranked Reserved
Category candidates. However, Rule 16 (2) should not be interpreted in an
isolated manner since it was designed to protect the interests of MRC
candidates. MRC candidates having indicated their status as SC/ST/OBC at the
time of application, begin their participation in the examination process as
Reserved Candidates. Having qualified as per the general qualifying standard,
they have the additional option of opting out of the Reserved Category and
occupying a General Post. Where, however, they are able to secure a better post
in the Reserved List their placement in the General List should not deprive
them of the same. In that respect, the adjustment referred to in Rule 16 (2)
does not, in fact, denote any change in the status of the MRC from General to
Reserved. To the contrary, it is an affirmation of the Reserved Status of the
MRC candidate. Rule 16(2) exists to protect this Reserved Status of the MRC
candidates.
27. We must also take note
of the fact that when MRC candidates get adjusted against the Reserved
Category, the same creates corresponding vacancies in the General Merit List
(since MRC candidates are on both lists). These vacancies are of course filled
up by general candidates. Likewise, when MRC candidates are subsequently
adjusted against the General Category [i.e. without availing the benefit of
Rule 16 (2)], the same will result in vacancies in the Re- served Category
which must in turn be filled up by Wait Listed Reserved Candidates. Moreover,
the operation of Rule 16 does not result in the ouster of any of the candidates
recommended in the first list. Many of the wait-listed candidates are
accommodated in the second stage, and the relatively lower ranked wait-listed
candidates are excluded. It is pertinent to note that these excluded candidates
never had any absolute right to recruitment or even any expectation that they
would be recruited. Their chances depend on how the MRC candidates are
adjusted.
28. In the impugned
judgment, the High Court had reasoned that allocation to a particular post
cannot be distinguished from allocation to a service for the purpose of reservation.
However, the High Court had not considered the fact that in the CSE
examination, the candidates are not competing for similar posts in one service
but are instead competing for posts in different services that correspond to
varying preferences. Furthermore, the impugned judgment did not appreciate the
possibility that when an SC/ST/OBC candidate qualifies on merit (i.e. without
any relaxation/concession) there can be a situation where a low- er ranked OBC
candidate gets allotted to a better service in comparison to a higher ranked
SC/ST/OBC candidate sim- ply because the higher ranked OBC candidate performed
well enough to qualify in the General Category. Such a situ- ation is
anomalous. As we have already discussed, the High Court's reliance on the
decision of this Court in Union of India v. Satya
Prakash, (supra.), is not tenable since it dealt with the effect
of Rule 16 (2) as it existed prior to the amendment notified on 4.12.2004.
29. A significant aspect
which needs to be discussed is that the aggregate reservation should not exceed
50% of all the available vacancies, in accordance with the decision of this
Court in Indra Sawhney v. Union of
India, (1992) Supp 3 SCC 217. If the MRC candidates are adjusted
against the Reserved Category vacancies with respect to their higher
preferences and the seats vacated by them in the General Category are further
allotted to other Reserved Category candidates, the aggregate reservation could
possi- bly exceed 50 % of all of the available posts.
30. In Post Graduate Institute of Medical Education and
Research v. Faculty Association, (1998) 4 SCC 1, G.N. Ray J.
had clearly stated that the upper ceiling of 50% reservations should not be
breached:
“32.
Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in
such a manner so that the balance is struck in the matter of appointments by
creating reasonable opportuni- ties for the reserved classes and also for the
other members of the community who do not belong to reserved classes. Such a
view has been indicated in the Constitution Bench decision of this Court in
Balaji case, Devadasan case and Sabharwal case. Even in Indra Sawhney case the
same view has been held by indicating that only a limited reservation not exceeding
50% is permissible. It is to be appreciated that Article 15 (4) is an enabling
provision like Article 16 (4) and the reservation under either provision should
not exceed legiti- mate limits. In making reservations for the back- ward
classes, the State cannot ignore the funda- mental rights of the rest of the
citizens. The spe- cial provision under Article 15 (4) [sic 16 (4)] must
therefore strike a balance between several rele- vant considerations and
proceed objectively. In this connection reference may be made to the de-
cisions of this Court in State of A.P. v. U.S.V. Bal- ram and C.A. Rajendran v. Union of India It has
been indicated in Indra Sawhney that clause (4) of Article 16 is not in the
nature of an exception to clauses (1) and (2) of Article 16 but an instance of
classification permitted by clause (1). It has also been indicated in the said
decision that clause (4) of Article 16 does not cover the entire field covered
by clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has also
indi- cated that in the interests of the backward class- es of citizens, the
State cannot reserve all the ap- pointments under the State or even a majority
of them. The doctrine of equality of opportunity in clause (1) of Article 16 is
to be reconciled in such a manner that the latter while serving the cause of
backward classes shall not unreasonably en- croach upon the field of equality.”
31. In State of Kerala v. N.M. Thomas, (1976)
2 SCC 310, the same proposition was enunciated by A.N. Ray, C.J. who had held:
"26.
The respondent contended that apart from Article 16 (4) members of scheduled
castes and scheduled tribes were not entitled to any favoured treatment in
regard to promotion. In T.Devadasan v. Union of
India reservation was made for back- ward classes. The number
of reserved seats which were not filled up was carried forward to the
subsequent year. On the basis of "carry for- ward" it was
found that such reserved seats might destroy equality. To illustrate, if 18
seats were reserved and for two successive years the re- served seats were not
filled and in the third year there were 100 vacancies the result would be that
54 reserved seats would be occupied out of 100 vacancies. This would destroy
equality. On that ground "carry forward" principle was not
sus- tained in Devadasan's case (supra). The same view was taken in the case of M.R.Balaji v. State of Mysore It was
said that not more than 50 per cent should be reserved for backward classes.
This ensures equality. Reservation is not a con- stitutional compulsion but is
discretionary ac- cording to the ruling of this Court in Rajendran's case
(supra)."
32. 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.
Re:
Question II
33. We have extracted Rule
16 of the Civil Service Examination Rules, as per notification dated 4.12.2004
issued by the Ministry of Personnel, Public Grievances and Pensions (Department
of Personnel and Training), New Delhi. A perusal of the rule discloses the
following: Rule 16 (1) mandates that after the interview phase, the candidates
will be arranged in the order of merit on the basis of aggregate marks obtained
in the main examination. Later on, the UPSC shall fix a qualifying mark for
recommending the candidates for the unreserved vacancies. Proviso to sub-rule
(1) lays down that a candidate who belongs to the SC, ST & OBC
categories and who has qualified on his own in the merit list shall not be
recommended against the vacancies reserved for such classes if such candidate
has not availed of any of the concessions or relaxations in the eligibility or
the selection criteria. The other sub-rules provide as to how Meritorious
Reserve Category candidates are to be adjusted and once they get services of
their preference after availing the
benefit of their reserved status (as SC, ST, OBC or any other applicable
category), the candidates whose names are in the consolidated reserve lists are
to be subsequently adjusted. The consolidated wait list includes the candidates
from General Category and Reserved Category. If an MRC candidate who belongs to
OBC category has availed the benefit of his status for better service
allocation then the seat vacated by him will go to a General Category
candidate. If he chooses not to avail the benefits of special status then he
would be counted in General Category and the seat vacated by him in the
Reserved Category will automatically go to a candidate who belongs to the same
Reserved Category.
34. As per the submissions
made before this Court, in the year 2005, 27 MRC candidates were adjusted
against Reserved Category and 5 MRC candidates were adjusted in General
Category. As already explained, the current process entails that a Reserved
Candidate, although having done well enough in the examination to have
qualified in the open category, does not automatically rescind his/her right to
a post in the Reserved Category. Furthermore, Rule 16(2) operates to recognize
the inter se merit amongst the Reserved Category Candidates. The two stage
process is designed in a manner that no person included in the first
recommended list is subsequently eliminated. However, since the wait list
contains more candidates than available posts, it is inevitable that some
persons in the wait list will necessarily be excluded. Such exclusion is on the
basis of merit and the aggrieved parties were never promised a post.
35. The following chart
presented by the Learned Solicitor General explains how service allocation has
been done for the years 2005, 2006 and 2007:
Service Allocation in the
Years 2005, 2006, 2007 Vacancy Position
Year General OBC SC ST
Total Vacancies Vacancies Vacancies Vacancies Vacancies 2005 242 117 66 32 457
2006 273 144 80 36 533 2007 382 190 109 53 734 Candidates Recommended Against
vacancies in the first case Year General OBC SC ST Total Candidat Candidate
Candidates Candidate Candidate es s s s 2005 210 117 66 32 425 (including
(including 31 merit 1 merit candidate Candidate) s) 2006 214 144 80 36 474
(including (including (including 41 merit 15 merit 2 merit candidate
candidates) candidate s) s) 2007 286 190
109 53 638 (including (including (including 76 merit 19 merit 1 merit candidate
candidates) candidate s) )
However, we have been
apprised that on account of the intervening order of the CAT Chennai Bench
(dated 17.09.07 in O.A. No. 690 and 775 of 2006), the Department of Personnel
& Training (DOP&T) has not been able to proceed with service
allocation against the second list. Similarly, for the years 2006 and 2007, the
UPSC is maintaining a Consolidated Reserve List of 116 and 192 candidates
respectively, but DOP&T has not sent any requisition for the second list as
per Rule 16(5).
36. In State of Bihar v. M
.Neeti Chandra, (1996) 6 SCC 36, this Court was confronted with broadly
analogous issues. In that case, the Controller of Examinations, Health Services,
Government of Bihar, Patna had issued the prospectus for a competitive
examination for admission to post graduate courses in Patna Medical College
(Patna), Darbhanga Medical College (Laheria Sarai), Rajendra Medical College
(Ranchi) and Mahatma Gandhi Medical College (Jamshedpur) for the year 1992. The
prospectus contained the following provisions with respect to reservations:
“The
reservation of seats for various categories shall be as per the decision of the
government. There will be no economic criteria for the reservation. Scheduled
Caste 14% Scheduled Tribe 10% Extremely Backward Class 14% Backward Class 9%
Ladies 3% The Government of Bihar acting through the Department of Personnel
and Administrative Reforms published a resolution dated 7-2-1992, bearing No.
11/K1-1022/91-K 20 [Hereinafter “ Resolution No. 20”]. Paragraph 6 of the same
is reproduced below:
“As
there is provision in direct appointment to the effect that the candidates
belonging to reserved classes, who are selected on the basis of merit would not
be adjusted against reserved seats, similarly maintaining the same arrangement
here also the candidates selected on the basis of merit for admission into
professional training institutes would not be adjusted against the reserved
quota for the candidates of the reserved classes”
The High Court of Patna which considered the
matter devised a method to remove the anomalies. It initiated a process of
allotment of seats by which the reserved seats were offered first (i.e. before
the general seats are filled first) to the candidates of the Reserved Category
on merit, and after all the reserved seats were so filled up, all other
qualifying candidates of the Reserved Category were `adjusted' against open
seats in the General Category along with the general merit candidates and
offered seats on merit-cum-choice basis. Furthermore, the High Court made
arrangement for the Reserved Category of girls who could get seats under the
reservation for girls or under those reserved for SCs /STs etc., thereby
retaining a choice between one of the two reservations. The girls in excess of
the reserved vacancies could seek admission on general merit. The High Court
held that by this procedure all the anomalies in the procedure for allotment of
seats could be removed. In the meantime, another resolution was passed which
was supposed to rectify the anomalies arising out of the operation of the
previous Resolution. The Resolution dated 22-3-1994 provided that casual
vacancies occurring at a later stage in the General Category or Reserved
Category would be filled from amongst the candidates of the respective category
on merit and in that process no candidate would be allotted a college/course
below the choice of the college or course already allotted. The High Court
observed that the resolution takes care of the grievances of the candidates who
by reason of readjustment at the State for filling up subsequent vacancies
often had to lose the college/course of their choice but it did not address the
anomaly that arises when preparing the main merit list as per Resolution No.
20.
State
of Bihar moved this Court in appeal against the judgment of the Patna High
Court and the main ground was that if the method suggested by the High Court
was followed, all students of Reserved Category who had secured the minimum
marks would have to be admitted even though there may not be adequate number of
vacancies for them. A.M. Ahmadi, C.J. pronounced this contention to be very
genuine and laid down:
"10.
Let us take a situation in which in a particular Reserved Category there are x
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
being 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 x number of seats
could then be filled up with the four qualifying 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 x number of
candidates get seats according to merit against the reserved seats but the
remaining will also have to be `adjusted' against the open seats for regular
candidates. These will be those who are not qualified according to general
merit criteria and so will necessarily displace 5 general candidates who would
be entitled to seats on merit.
11. In
a particular year, the number of such candidates may be much larger and thus
the method evolved by the High Court may create much hardship. The method will
also not be in tune with the principles of equality. Hence the method evolved
by the High Court will have to be struck down.
12. If
however, the word `adjusted 'is read to mean considered along with the general
merit list candidates, it will lose much of its value. As per the above
illustration, the 5 candidates qualifying on Reserved Category criteria having
not secured enough marks according to general criteria, cannot, at all be
allotted any seat in the General Category.
13. At
the same time, as pointed out above, all is not well with the Government
Circular No.20 as it operates against the very candidates for whom the
protective discrimination is devised. The intention of Circular No. 20 is to
give full benefit of reservation to the candidates of the reserved. 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."
37. Learned Counsel on
behalf of the petitioner in W.P.(C) No. 297 of 2008 has relied upon the
following observations of Jeevan Reddy J., in Indra Sawhney v. Union of India (supra.)
(para 811) :
"811.
...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."
The said observations are
not of any assistance as no MRC candidate occupying a General Category slot is
being counted against the quota for the Reserved Category. For example those
MRC candidates belonging to the OBC category who cut across the general
qualifying standard and are appointed to general posts are not being counted
within the 27% quota earmarked for OBCs. However, MRC candidates who retain
their reserved status and avail of the benefit of Rule 16 (2) to occupy a
reserved post are counted against the reservation quota. When MRC candidates do
not choose to accept the General Category slot available to them on account of
their merit, but opt to occupy a slot reserved for reservation category
candidates, because that post is more attractive, then counting him/ her
against reservation quota will not violate the law laid down in Indra Sawhney
(supra.).
"102.
... Equality has two facets- "formal equality" and
"proportional equality". Proportional equality is equality
"in fact" whereas "formal equality" is
equality "in law". Formal equality exists in the rule of law.
In the case of proportional equality the State is expected to take affirmative
steps in favour of disadvantaged sections of society within the framework of
liberal democracy. Egalitarian equality is proportional equality."
39. Article 16 (4) of the
Constitution provides that nothing in Article 16 shall prevent the State from
making any provision for the reservation of appointments or posts in favour of
any backward classes of citizens which, in the opinion of the State, is not
adequately represented in the services under the State. Article 16(4) empowers
the State to initiate measures in order to protect and promote the interests of
backward classes (OBC, SC & ST). The impugned measures in no way offend
the equality clause since this particular clause was inserted to safeguard the
concerns of certain classes and shield their legitimate claims in the domain of
public employment. On behalf of the respondents in the appeals, it was
submitted Rules 16 (2), (3), (4) & (5) infringes Article 16(4). We do
not accept this proposition since Rule 16 (2) and the subsequent sub-rules
merely recognize and advance inter se merit among the Reserved Category candidates
in the manner that has been demonstrated before us by Learned Solicitor
General.
40. Therefore, Rule 16
protects the interests of a Reserved Category candidate selected in the general
(unreserved) category by giving him the option either to retain his position in
the open merit category or to be considered for a vacancy in the Reserved
Category, if it is more advantageous to him/her. The need for incorporating
such a provision is to arrest arbitrariness and to protect the interests of the
Meritorious Reserved Category candidates. If such rule is declared redundant
and unconstitutional vis-`-vis Article 14, 16 and 335 then the whole object of
equality clause in the Constitution would be frustrated and the MRC candidates
selected as per the general qualifying standard would be disadvantaged since
the candidate of his/her category who is below him/her in the merit list, may
by availing the benefits of reservation attain a better service when allocation
of services is made. Rule 16 in essence and spirit protects the pledge outlined
in the Preamble of the Constitution which conceives of equality of status and
opportunity.
Re:
Question III
41. Central Administrative
Tribunal, Chennai Bench in O.A. No. 690 of 2006 and 775 of 2006 had given the
following directions -:
"(i) The impugned
Rule 16 (2) is declared as valid so long as it is confined to allocation of
services and confirms to the ratio of Paras 4 to 6 of Anurag Patel order of the
Hon'ble Apex Court. (ii) The Supplementary List issued by the second respondent
to the first respondent dated 3.4.2007 is set aside. This would entail issue of
a fresh supplementary result from the reserved list of 64 in such a way that
adequate number of OBCs are announced in lieu of the OBCs who have come on
merit and brought under General Category. The respondents are directed to
rework the result in such a way the select list for all the 457 candidates are
announced in one lot providing for 242-general, 117 OBC, 57 SC and 41 ST and
also ensure that the candidates in OBC, SC & ST who come on merit and
without availing any reservation are treated as general candidates and ensure
that on equal number of such reserved candidates who are of merit under General
Category, are recruited for OBC, SC & ST respectively and complete the
select list for 457. Having done this exercise, the respondents should apply
Rule 16 (2) to ensure that allocation of the service is in accordance with
rank-cum- preference with priority given to meritorious reserved candidates for
service allocation by virtue of Rule 16 (2) which is as per para 5 of Anurag
Patel order. The entire exercise, as directed above, should be completed as per
the order.
(iii) Applying the ratio of
Anurag Patel decision of Hon'ble Apex Court (Paras 6 & 7), if there is
need for re-allocation of services, the respondents will take appropriate
measures to that extent and complete this process also within two months from
the date of receipt of a copy of this order."
The CAT had also issued the
following direction as to how the results of the UPSC examinations (2005)
should have been announced:
"52. If the UPSC
had followed the decision of the Hon'ble Apex Court cited supra and released
the select list in one go for all the 457 vacancies then it would have ensured
that the select list contained not only 117 OBCs but also an additional number
of OBC candidates by this number, in additional to 117 under 27% reservation,
while simultaneously be number of general candidates recruited will be less to
the extent of OBCs recruited on merit and included in the general list in the
result of Civil Services Examination, 2005. Once this order is met, the
successful candidates list will include 242 candidates in the General Category
which is inclusive of all those Reserved Category candidates coming on merit
plus 117 OBC, 57 SC and 41 ST exclusively from these respective reserved
categories by applying relaxed norms for them.. If such a list is subjected to
Rule 16(2) of Civil Services Examination, 2005 in present form for making
service allocation only and then services are allotted based on Rule 16(2) in
this context, then the announcement of recruitment result and allocation
services will be both in accordance with law as per various judgments the
Hon'ble Apex Court and in accordance with the extent orders issued by the
Respondent No.1 and also in keeping with spirit of Rule 16 (2) so that, the
meritorious reserved candidates get higher preference service as compared to
their lower ranked counter parts in OBC, ST,SC. In doing so, the respondents
also would notice that the steps taken by them in accordance with the Rules 16
(3)(-)(5) are redundant once they issue the result of recruitment in one phase,
instead of two as they have become primary cause for the litigation and
avoidable confusion in the minds of the candidates seeking
recruitment."
42. We may refer to the
brief facts in Anurag Patel v. Uttar Pradesh
Public Service Commission,(supra.), referred to by the Tribunal. In
the year 1990, the Uttar Pradesh Public Service Commission [hereinafter
`UPPSC') conducted a combined State Services/Upper Subordinate Services
examination for selection to various posts such as Deputy Collectors in U.P.
Civil (Executive) Services, Deputy Superintendent of Police in U.P. Police
Services, Treasury Officers/Account Officers in U.P. Finance and Accounts
Services, Sales Tax Officers, Assistant Regional Transport Officers, District
Supply Officers and various other posts. Pursuant to the notification issued by
the UPPSC, a large number of candidates appeared for selection. The UPPSC
published the list of selected candidates in August, 1992. Altogether 358 posts
in various categories were filled up. The candidates belonging to the Backward
Classes were entitled to get reservation in selection in respect of 57 posts in
various categories, out of a total number of 358 posts. The posts in each
category of service were filled up by choice of the candidate and the person
who secured higher position in the merit list opted for U.P. Civil (Executive)
Service and those who could not get the higher and important category of
service had to be satisfied with posts in services of lesser importance. In
each category of service, posts were reserved for SCs/STs, Backward Classes and
handicapped persons etc. The UPPSC treated the candidates belonging to SC/ST
and Backward Classes who got selection to the seats (posts) earmarked for
general candidates as candidates in the General Category and allotted them to
various services depending upon the rank secured by them in the select list.
SC/ST and BC Candidates, who got lower rank in merit lists of general category
candidates got posting in lesser important services. However, the SC/ST and BC
Candidates who got selected to posts reserved in each category even though they
secured lesser rank in the whole list got appointed to reserved posts in each
category. This mode of appointments caused serious injustice to candidates who
initially applied in the Reserved Category, yet they got selected to the
general seats (posts) as they were meritorious and were entitled to get
selected along with the general candidates. However, their merit and ability
did not pay any dividends as they got appointment only to lesser important
posts. This Court held:
"4.
... The authorities should have compared the candidates who are to be appointed
on general merit as also candidates who are to be appointed as against the
reserved vacancies and while making appointments the inter se merit of the
reserved candidates should have been considered and they must have been given
the option treating each service separately. As this exercise was not followed,
less meritorious candidates got appointment to higher posts whereas more
meritorious candidates had to be satisfied with posts of lower category.
5.
...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 candidates 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 select list
and preference of a person higher in the select list will be seen first and the
appointment given accordingly, while preference of a person lower in the list
will be seen only later. We do not think any error or illegality in the
direction issued by the Division Bench of the High Court.
6. If
these candidates who got selection in the General Category are allowed to
exercise preference and then are appointed accordingly the candidates who were
appointed in the reserved categories would be pushed down in their posts and
the vacancies thus left by the General Category candidates belonging to
Backward Classes. There will not be any change in the total number of posts
filled up either by the General Category candidates or by the Reserved Category
candidates."
43. The decision in Anurag
Patel (supra.) rectified the anomaly which had occurred since the U.P.P.S.C.
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 principles
outlined in Articles 14 and 16 of the Constitution. This Court had reached such
conclusion to ensure that allocation of service is in accordance with the
rank-cum- preference basis with priority given to meritorious candidates for
service allocation.
44. The decision in Anurag
Patel (supra.) in turn referred to the earlier decision in Ritesh R. Sah v. Dr. Y.L.Yamul and Others (supra.).
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 the 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 candidates who secure
admission in a particular educational institution is of a homogeneous nature.
However, the benefits accruing from successfully qualifying in the UPSC
examination are of a varying nature since some services are coveted more than
others.
45. The order of the CAT is
valid to the extent that it relied on the ratio propounded by this Court in Anurag Patel v. Uttar Pradesh Public Service Commission (supra.).
Even though that decision had in turn relied on the verdict of this Court in Ritesh R. Sah v. Dr. Y.L.Yamul and Others,(supra.),
the latter case is distinguishable from the present case with respect to the
facts in issue. However, we cannot approve of the conclusions arrived at in the
Central Administrative Tribunal order as it failed to take note of the unique
characteristics of the UPSC examinations.
46. Reference was also made
to R.K. Sabharwal v. State of
Punjab, (1995) 2 SCC 745, this Court had declared that the State
shall not count a Reserved Category candidate selected in the open category
against the vacancies 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
counsels' 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 Engineers in
the Irrigation Department of State of Punjab. The decision was rendered in the
context 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 examinations conducted by UPSC
which includes 21 different services this case pertains to a single service and
therefore the same cannot be compared with the examination conducted by UPSC.
The examination conducted by UPSC is very prestigious and the top-most services
of this nation are included in this examination. In this respect, it is obvious
that there is fierce competition amongst the successful candidates as well to
secure appointments in the most preferred services. This judgment is strictly
confined to the enabling provision of Article 16 (4) of the Constitution under
which the State Government has the sole power to decide whether there is a
requirement for reservations in favour of the backward class in the services
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 the UPSC. Therefore, the fact-situation in
R.K. Sabharwal's case is clearly distinguishable.
47. The proviso to Rule 16
(1) and Rule 16 (2) operate in different dimensions and it is untenable to
argue that these provisions are contradictory or inconsistent with each other.
As mentioned earlier, in the examination for the year 2005, 32 reserved
candidates (31 OBC candidates and 1 SC candi- date) qualified as per the
general qualifying standard [Rule 16 (1)]. These MRC candidates did not avail
of any of the concessions and relaxations in the eligibility criteria at any
stage of the examination, and further they secured enough marks to place them
above the general qualifying standard. MRC candidates are entitled to one of
the two posts - one depending on their performance in the General list and oth-
er depending on their position in the Reserved List. When MRC candidates are
put in the General list on their own merit they do not automatically relinquish
their reserved status. By the operation of Rule 16 (2), the reserved status of
an MRC candidate is protected so that his/ her better performance does not deny
such candidate the chance to be allotted to a more preferred service. Where,
however, an MRC is able to obtain his preferred post by virtue of his /her
ranking in the General List, he/ she is not counted as a Reserved Candidate and
is certainly not counted amongst the respective reservation quota.
48. We must also remember
that affirmative action measures should be scrutinized as per the standard of
proportionality. This means that the criteria for any form of differential
treatment should bear a rational correlation with a legitimate governmental
objective. In this case a distinction has been made between Meritorious
Reserved Category candidates and relatively lower ranked Reserved Category candidates.
The amended Rule 16(2) only seeks to recognize the inter-se merit between these
two classes of candidates for the purpose of allocation to the various civil
services with due regard for the preferences indicated by the candidates.
49. With regard to the
specific characteristics of the UPSC examinations we hold that Reserved
Category candidates (belonging to OBC, SC or ST categories among others) who
are selected on merit and placed in the list of general/unreserved Category
candidates can choose to migrate to the respective reserved categories at the
time of allocation of ser- vices. Such migration is enabled by Rule 16 (2) of
the Civil Services Examination Rules, which is not inconsistent with Rule 16
(1) of the same or even the content of Articles 14, 16 (4) and 335 of the
Constitution of India.
50. We sum up our answers-:
i) MRC candidates who avail
the benefit of Rule 16 (2) and 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 be offered to General category candidates.
ii) By operation of Rule 16
(2), the reserved status of an MRC candidate is protected so that his/ her
better performance does not deny him of the chance to be allotted to a more
preferred service.
iii) The amended Rule 16
(2) only seeks to recognize the inter se merit between two classes of candidates
i.e. a) meritorious reserved category candidates b) relatively lower ranked
reserved category candidates, for the purpose of allocation to the various
Civil Services with due regard for the preferences indicated by them.
iv) The reserved category
candidates “belonging to OBC, SC/ ST categories” who are selected on merit and
placed in the list of General/Unreserved category candidates can choose to
migrate to the respective reserved category at the time of allocation of
services. Such migration as envisaged by Rule 16 (2) is not inconsistent with
Rule 16 (1) or Articles 14, 16 (4) and 335 of the Constitution.
51. In view of the above,
the civil appeals are allowed and the judgment of the Madras High Court is set
aside. The writ petitions challenging the validity of Rule 16(2) are dismissed.
The validity of Rule 16 of Civil Service Examination Rules 2005 (vide
notification dated 4.12.2004) is upheld. There will be no order as to costs.
.......................................
CJI (K.G. BALAKRISHNAN)
...........................................
J. (S.H. KAPADIA)
..........................................J.
(R.V. RAVEENDRAN)
.........................................J.
(B. SUDERSHAN REDDY)
..........................................J.
(P. SATHASIVAM)
NEW DELHI
MAY 07,
2010