MCD School records open to public scrutiny once every month

CENTRAL INFORMATION COMMISSION

Club Building (Near Post Office)

Old JNU Campus, New Delhi - 110067

Tel: +91-11-26161796

Decision No. CIC/SG/C/2011/000930/14501

Complaint No. CIC/SG/C/2011/000930

Complainant                                      :  Mr. Saurabh Sharma,

                                                               C-7/E, D.D.A Flats, Munirka,

                                                               New Delhi-110067

Respondent                                        :  The Additional Commissioner (Education)

                                                               Municipal Corporation of Delhi

                                                                 Education Department,

                                                               15th Floor, Civic Centre, Minto Road,

                                                               New Delhi – 110 001

Complaint filed on                              :           08.06.2011     

Hearing Notice Issued on                   :           18.08.2011                                                     

Date of Hearing                                  :           08.09.2011

Facts arising from the Complaint:

The Complainant has filed the present Complaint under Section 18 of the RTI Act (hereinafter ‘the Act’), with the Commission, contending that certain categories of document including the manuals mandated under Section 4 (1) (b) of the Act 2005,  should be available in hard copy at the school.  It is further contended that these documents should be available for inspection suo moto, as the Education Department of the Municipal Corporation of Delhi runs and maintain a large number of schools in the city, they should have all the mandated information mentioned in Section 4, in hard copy at the school premise for the benefit of the beneficiary community. This will be of immense help for them in ensuring transparency and accountability of the functioning of schools. He has forwarded a list of documents that should be available for inspection and the request is reproduced below:-

1.     Admission records

2.     Students’ attendance records

3.     Teachers’ attendance records

4.     Budget Allocations, Sanction issued and Expenditure incurred

5.     Expenditure on Educational Tours, Mid Day Meals, V.K.S/SMC, Sanitation, and CEP heads.

6.     Records of disbursements made to students on account of Scholarships, Uniforms, Books, and all other incentives given under any scheme.

7.     Copies of Circulars/Notifications/Orders received from Education Department & other Departments/Authorities from time to time.

8.     Various Registers like inspection Register, Visitor Register, Movement Register

9.     General Inspection of the infrastructural facilities – like drinking water, toilets, classrooms etc.

Relevant Facts emerging during Hearing:

The following were present:-

Appellant: Mr. Saurabh Sharma and Ms. Aheli Chowdhury.

Respondent:  Mrs. Kanta Rani Kumar, ADE; Dr. Chandra Bhan, DDE (Coordination); Municipal Corporation of Delhi

The Commission has heard the Respondents and the Appellant. The Respondents state that the admission records can be made available for inspection, as well as the student’s attendance. The teacher’s attendance records/register is also available. Budget allocations are at the HQ and Zonal Level, the budget sanctioned to the schools and the expenditure therein is available at the school level.  For educational tours and mid-day meal can be made available for inspection at the school. The records for PTA are also maintained at the school. It is further stated that for sanitation, only one staff is deployed.  Records of disbursements made to students on account of Scholarships, Uniforms, Books which are free of cost, and all other incentives for winter clothes/shoes etc given under any scheme are also available. Copies of Circulars/Notifications/Orders received from Education Department & other Departments/Authorities from time to time are sent directly to the schools and should be available there. Various Registers like inspection Register, Visitor Register, Movement Register are also at the school level. Inspections are done once a year and also surprise inspection records are also available. General Inspection of the infrastructural facilities – like drinking water, toilets, classrooms, black boards etc are undertaken through a specific proforma which covers a variety of areas, this record is available. In addition the Respondents also state that there are also records of complaints made by Principal/incharge  of each school to senior authorities.

Section 4 (1) (a) of the Right to Information Act, 2005, which is a mandatory obligation, reads as -“maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”. The Commission appreciates that the Department has made improvements and is moving towards  better transparency.

The Right to Information is a fundamental right of the citizens which has been codified by the RTI act, No. 22 of 2005. The act envisions that all citizens shall receive information primarily by suo motodisclosures by various public authorities as prescribed by section (4) of the act.                Disclosures in accordance with the said Section are crucial to ensure transparency and accountability in institutions.  This would reduce the load of RTI Applications being filed with each institution as information would be freely available to citizens and they would not have to apply for it. It further envisages that citizens would be required to specifically ask for information under section (6) only in a few cases. Citizens have been demanding that certain information is essential to them and should be available proactively in form of public notice boards, display boards etc. The Commission feels that certain information which is essential for public safety should be published proactively.

Decision:

The Complaint is allowed. 

In view of the aforesaid and from the facts before it, the Commission under the powers vested in it by section 19 (8) (a) of the RTI act, hereby directs the following:-

The Following categories of documents shall be available for inspection from the last working day of October 2011, pertaining to each particular school for the on-going academic session.

1.     Admission records

2.     Students’ attendance records

3.     Teachers’ attendance records

4.     Budget Allocations, Sanction issued and Expenditure incurred

5.     Expenditure on Educational Tours, Mid Day Meals, V.K.S/SMC, Sanitation,  

6.     Records of disbursements made to students on account of Scholarships, Uniforms, Books, and all other incentives given under any scheme.

7.     Copies of Circulars/Notifications/Orders received from Directorate of Education & other Departments/Authorities from time to time, which are available with the concerned school.

8.     Various Registers like inspection Register, Visitor Register, Movement Register, Complaint File

1.     All schools of the Municipal Corporation of Delhi will have the above noted documents/registers available for inspection by citizens on the last working day of each month, from 10.30 AM to 12.30 PM for First/Morning/General Shift and 3.30 PM to 5.30 PM for the Second/Evening shift schools respectively. This information regarding inspection timings shall be available on the notice boards of all schools.

1.     A sign board of appropriate dimension shall be installed, mentioning the Name(s), designation(s), contact details including the office address/room number, as the case may be who can be contacted for inspecting records including the inspection timings as mentioned in point 1 above. No acronym/abbreviation should be used.  This information shall be inscribed in Hindi and shall be installed at a location having maximum public view at the concerned school. The same shall also be published on the website of the Corporation also.

The Additional Commissioner (Education), shall send a consolidated report of compliance of the above directions to this Commission by 15thNovember 2011. The report may be sent to rtimonitoring@gmail.com, with a copy to the Complainant.   

This decision is announced in open chamber.

Notice of this decision be given free of cost to the parties.

                                                                                                                          Shailesh Gandhi

                                                                                                          Information Commissioner

                                                                                                                   8th  September 2011

RTI activist Raghubir Singh Gadegawnlia got ‘B’ Grade position in India in Certificate Course on RTI

RTI activist Raghubir Singh Gadegawnlia got ‘B’ Grade position in India in Certificate Course on RTI

DELHI: Raghubir Singh Gadegawnlia, resident of  Jawala Puri district West Delhi based RTI activist got B grade position in India in Certificate Course on RTI' launched by the Department of Personnel and Training (DoPT), Ministry of Personnel, Public Grievances and Pensions, Government of India (GoI). Gadegawnlia got 3^rd rank in India, out of 41 students.

Certificate Course on RTI' is for various stakeholders on, both, the demand and supply sides of the RTI implementation regime. This Online Certificate Course on RTI is launched in association with the Centre for Good Governance, Hyderabad.

This Certificate Course is aimed for Public Information Officers (PIOs), Assistant Public Information Officers (APIOs), Appellate Authorities, Officials assisting the above designated officers or other public officials, Representative of Civil Society Organizations (including Media Organizations) .

The outcomes proposed for this initiative are a sound knowledge of the provisions of the RTI Act, 2005 among the people taking this course. Good understanding of the remedies available when an implementing organization fails to comply with this Act, Testing the understanding of 'Information Providers' and 'Information Seekers' using this tool for implementing this Act or exercising their right under it.

It is to be remembered that Raghubir Singh Gadegawnlia is an active member of different social organizations & giving training about RTI Act to different organizations & citizens.

Govt Opposes Rs 50k Cap on Free Treatment of Poor

The Delhi government today turned down a proposal of private hospitals to provide free treatment to poor patients only up to billing amount of Rs 50,000 and sought a direction from the Supreme Court to prohibit them from putting any such cap.

It said the proposal for putting a ceiling "is not practicable" and totally "unacceptable".

In an affidavit filed before the apex court, the government informed the court that out of 37 hospitals, which were given land at subsidised rate, 27 are giving free treatment to the economically weaker section (EWS) of society but some have proposed a ceiling of the Rs 50,000 per patient.

"A perusal of their (hospital's) proposals reveals that they have agreed to provide free treatment to EWS patients free of cost subject to billing amount limit of Rs 50,000 per patient. This is totally against the letter and spirit of providing free treatment to poor patients.

"If the above proposal is to be accepted then many poor patients would be denied complete and full treatment for their illness and this would defeat the very aim and objective of providing free treatment to poor patients. A cap or ceiling of the Rs 50,000 per patient is not practicable. This is totally unacceptable to the government," the 11-page affidavit said.

It said that four hospitals -- Fortis Escort Heart Institute; Max Super Specialty, Saket; Max Super Specialty, IP Extension; and Bhagwati Hospital -- did not submit their representation in a meeting which was organised on the direction of the apex court to chart out a scheme for the implementation of the scheme for free treatment.

"It appears that they have fallen in line with the directions of the high court and also the policy of the government to serve the interest of EWS category of the society," the government said.

The affidavit was filed in compliance with the apex court order which had on August 25 had directed the government to file a detailed report after consultation with the hospitals.

It had asked the hospitals to sit with government authorities to sort out the issue and work out a scheme to treat the poor patients — 25 per cent outdoor and 10 per cent indoor — free of cost.

The government also informed the court that a five-member monitoring committee under the Director of Health Services has been formed for the implementation of the scheme.

The Delhi High Court had in 2007 ruled that all private hospitals that were granted public land at cheaper rates would provide free treatment to poor patients at the rate of 10 per cent in the indoor patient department (IPD) and 25 per cent in the outdoor patient department (OPD) of their total respective treatment capacities.

"They (poor patients) will be provided free admission, bed, medication, treatment, surgery facility, nursing facility and consumables and non-consumables. The hospitals charging any money from such patients shall be liable to be proceeded against in accordance with the law. Besides that, this would be treated as violation of the orders of the court," the high court had said.

The court had pronounced the judgment on a PIL seeking implementation of the land deed agreement entered into with these hospitals providing for, among other things, free treatment to certain percentage of poor patients out of their total treatment capacities.

Delhi Govt Officials to Pay Penalty For Delay in Service

Come September 15, Delhi government officials will have to pay financial penalty to applicants if they fail to deliver services within a time-frame, a move that comes in the backdrop of Anna Hazare's demand for a citizens' charter.

The reforms in delivery of services like issuance of driving license, ration card and registration of births and deaths in a time-bound manner has been initiated by city government as per provision of a legislation passed by Delhi Assembly in March.

The decision to implement the 'Delhi Right of Citizen to Time Bound Delivery of Services Act' comes close on the heels of Hazare's agitation demanding a Citizens' Charter for all government departments, providing details about services offered by them, the time limit and punishment for failing to provide the service.

The legislation fixes financial penalty in the range of Rs10 to Rs 200 per day for failing to deliver services while making it a right of every citizen to obtain time bound delivery of services from certain government agencies.

"The legislation will come into force from September 15. It will improve accountability and rid our system of irregularities," said a senior official.

The departments which have been included under the legislation are Revenue, Food and Civil Supplies, Transport and Trade and Taxes as well as civic agencies MCD and NDMC.

According to the legislation, a maximum penalty of Rs 5,000 can be imposed on officials for failing to deliver services. For deciding financial penalty, the legislation also provides for setting up "competent authority".

The legislation says for issuance of ration cards, it should not take more than 45 days while MCD and NDMC should not take more than seven working days for issuance of registration of birth and death certificates.

The Transport Department should not take more than one day to renew permanent driving license while learner's driving license should be issued on the same day of filing of the application.

The Act requires the selected departments to commit to service-level agreements (SLAs) declaring time-frame required to deliver services to the citizens.

The legislation basically aims at sensitising government servants towards the citizens and to enhance and imbibe a culture to deliver services within a stipulated period.

Officials said the government had written to Delhi Police to implement the legislation.

Sample RTI Application format crime against women and dowry related cases

To

The CPIO
O/o The Superintendent of Police XXXXXX
address

Subject: Request for information required under RTI Act 2005

Ref: My complaint dated 4-Oct-2009 sent through speed post no. ABCDEF1234IN (copy enclosed) for registration of case against Mrs. xxxxxxxxx and accomplices under section 3 of dowry prohibition act, 1961.

Dear Sir,

With reference to my complaint (copy enclosed as Annexure A) dated 4-Oct, Please provide me the following information under the provisions of RTI Act 2005:-

1. Action taken report by your department in compliance with my complaint.

2. What are the provisions invoked in the CAW Cell to prevent any manipulation of statements given by Bride & Groom since CAW Cell never gives receiving of the statements given to enquiry officer.

3. Whether the CAW Cell Nanak Pura, Delhi and all other related police officials who deal with marital disputes, crime against women and dowry related cases are aware that giving dowry is a cognizable offence under section 3 of dowry prohibition act, 1961 and there’s a penalty of imprisonment up to 5 years for giving dowry or abetting the giving of dowry.

4. Whether the CAW Cell Nanak Pura, Delhi and all other related police officials who deal with marital disputes and dowry related cases are aware of Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985. If the answer is yes, then are they complying the provisions of the Dowry Prohibition Rules, 1985 while accepting complaints from women?

5. Whether CAW Cell is aware of the High Court Judgment in respect of CRL.M.C.7262/2006 dated 23-02-2007.(Attached as Annexure B), which states that

a) “Where these kinds of allegations are made, the police should simultaneously register a case under Dowry Prohibition Act (in short, the Act) against the parents of the complainant as well, who married their daughter despite demand of dowry. Section 3 of the Act prohibits giving and taking of dowry. If a woman of grown up age and well educated gets married to a person despite dowry demand, she and her family becomes accomplice in the crime under Dowry Prohibition Act.”

b) “Police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985.”

6. How many FIR’s have been filed against dowry takers since year 2001 till date, year wise.

7. How many FIR’s have been filed against dowry givers since year 2001 till date, year wise.

8. Supreme Court of India has also declared the misuse of 498A as legal terrorism, so whether CAW Cell /Concerned police station are considering the Income Tax Return of bride and her family who claims for huge expenses before accepting the complaints of women. As CAW cell is responsible for case recommendations on the preliminary stage for filing of FIR on the martial disputes, therefore what are the actions and measures available at the CAW cell to prevent the registration of such false complaint. Because false and fabricated complaints are increasing the burden on Police and Judiciary system.
9. Kindly provide details of the various provisions/actions taken by CAW Cell against the concerned Enquiry Officer or other staff involved if the list of Stridhan submitted by brides accepted due to failure /negligence of compliance of any Act/Judgments mentioned above.
The information sought by the undersigned falls within the ambit of RTI Act and the information is existing therein. It is further requested that the High Court Judgment WP{C} No. 3114/2007 dated 19-11-2007 (Annexure C) and decision of Central Information Commission under appeal no. CIC/WB/A/2007/00264 dated 02/03/2007 (Annexure D) and under appeal no. CIC/WB/A/2007/00336 dated 02/03/2007 (Annexure E) may please be considered before invoking the provisions of Section 8 of RTI Act 2005.

Provide information to each point separately. No clubbing of points even if information is repeated.

Your early reply will be appreciated.

Thanking You
Best Regards
Xxxxxxxxxxxxxx
Xxxxxxxxxxxxx
Xxxxxxxxxxxxxx

Enclosed:
Annexure A:
Annexure B:
Annexure C:
Annexure D:
Annexure E:
Complier : xyz

Madras High Court orders disclosure of assets statements of IAS officers under RTI

12th July 2011

A two judge bench of the Madras High Court comprising Justice D.Murugesan
and Justice K.K.Sasidharan has ordered the State Government to disclose the
assets statements of IAS officers sought under the Right to Information act,
2005 (case no. WA 551/2010). This order overturns the ealier single Judge
order of the Madras High Court which upheld the order of the State
Information Commission baring disclosure of assets of IAS officers, on an
RTI application seeking inspection of assets statements of 10 IAS officers
of Tamil Nadu Government.

The RTI application was filed in February 2009 with the Public department,
where the applicant had sought inspection of assets statements of the Chief
Secretary of Tamil Nadu and Secretaries of 9 other departments. He was
refused information citing section 8(1)(j), which gives exemption to
personal information which has no relationship to any public activity or
interest. The appellate authority too upheld this argument.

The applicant then moved the State Information Commission against the PIO's
and the Appellate Authority's decision. The State Information Commission too
upheld that these documents are exempt under section 8(1)(j) of the Act and
that since they are in sealed covers, they cannot be considered as being
“available” with the Public Authority.

The applicant then moved the Madras High Court challenging the State
Information Commission's decision on the grounds that the State Information
Commission is trying to set different yard sticks for IAS and non-IAS
government servants, by earlier ordering that that the assets statements of
Government Servants, who do not belong to IAS cadre, are public documents,
but giving the opposite judgment when the issue was raised with respect to
IAS officers. The applicant had also cited that the CIC has repeatedly
ordered that assets details of Government Servants are to be made public.

Today's order came on appeal against the order of the single judge (case no.
26223 of 2009), who heard the writ petition and dismissed it in February
2010, saying that there is already a procedure to open sealed covers
containing assets statements and hence there is no need to make the assets
statements of IAS officers public.

It is interesting to note that the Karnataka Information Commission, Madhya
Pradesh Information Commission and Punjab Information Commission had also
earlier ordered that assets statements are to be disclosed under RTI.

With this judgment, it is now firmly established that assets details of IAS
officers are completely under the public domain and can be accessed under
the Right to Information act, 2005. A copy of the order is awaited.

The RTI application filed, order of the State Information Commission and
order of the single judge bench of the Madras High Court and other documents
can be downloaded from http://www.box.net/shared/2zkeqxgnqs

For more details please contact

*Madhav – 9840327303*

--
V.GOPALAKRISHNAN
ACTIVST

A LANDMARK DECISION OF SUPREME COURT OF INDIA IN FAVOUR OF OBCs

A LANDMARK DECISION OF SUPREME COURT OF INDIA IN FAVOUR OF OBCs

(To be followed by UPSC, IIT, IIM, AIEEE, States etc.)

MERIT OBC CANDIDATES SELECTED IN UNRESERVED (General) SEATS CAN NOT BE ADJUSTED AGAINST 27%

RESERVATION QUOTA EVEN IF THEY GET ALLOTMENT OF SEAT/CADRE IN RESERVED SEATS: SUPREME COURT

CASE NO.: Appeal (civil) 5505-5507 of 2003

PETITIONER: Union of India & Anr, RESPONDENT: Satya Prakash & Ors, DATE OF JUDGMENT: 05/04/2006,

BENCH: H.K. Sema & Dr. AR. Lakshmanan, J U D G M E N T with Civil Appeal No. 7004 of 2003

H.K.SEMA, J

These appeals have been preferred by the Union of India aggrieved by the judgment and orders dated

10.9.2002 (in Civil Appeal Nos. 5505-07/2003) and 29.4.2003 (in Civil Appeal No. 7004/2003) of the Division Bench of

the High Court of Delhi in Civil Writ Petition Nos. 3561/99, 3562/99, 867/2000 and 2751/2000 respectively. For

brevity, we are taking facts from Civil Appeal No. 5505 of 2003. The respondent belongs to Other Backward Class

(OBC). Reservations were made for Scheduled Castes, Scheduled Tribes and OBC category candidates in Civil Services

Examination (CSE) Rules, 1996. The respondent appeared from the reserved quota of OBC. The Union Public Service

Commission (Commission) r ecommended in all 739 candidates, out of which 2 candidates were withheld and 737

candidates wer e recommended one to one for appointment against the vacant posts from various categ ories. The

following chart would make clear the manner in which the different categories of jobs were to be alloc ated to

different categories of candidates.

Categ ory/Cadre IAS IFS IPS Gr.A Gr.B Total

Total General 38 07 48 157 133 383

OBC 20 03 25 72 54 174

SC 12 03 15 56 39 125

ST 06 01 08 23 19 57

Total 76 14 96 308 245 739

The chart shows that against the OBC category total 174 candidates wer e recommended for 174

vacancies. In these appeals we are concerned only with OBC category candidates. From the OBC categ ory, three

candidates were included in the general merit list. 36 OBC category candidates were also included in the general

merit list on the recommendation of the Commission. However, a preference was given fr om the relaxed quota,

reserved for the OBC category candidates. Despite 174 vacancies earmarked for the OBC category candidates, and

the candidates wer e recommended for 174 vacancies, only 138 OBC category candidates were provided with the job

and the r est 36 OBC category candidates (respondents) had been denied j ob. By way of illustration, a candidate

whose name figured at Sl. No. 620 in the merit list had been provided with a job but the r espondent herein, who was

at Sl. No. 606 in the merit list, had been denied the job.

We have heard Mr. T.S. Doabia, learned S enior counsel for the Union of India, Mr. L. Nageswar Rao,

Sr. Adv. Mr. Ranjit Kumar, Sr. Adv. and Mr. Gopal Prasad, learned counsel for the r espondents.

The principal contention of Mr. T.S. Doabia is that since there were only 174 vacancies in the OBC

category in various services and posts, certain candidates belonging to that category and recommended by the

Commission for appointment against the vacancies for OBC category candidates in services/posts could not be

allocated to any services/posts due to lack of vacancies. It is his further contention that the quota reserved for the

OBC from the r elaxed standard exhausted due to the prefer ence opted by the OBC candidates who wer e

recommended by the Commission from open category i. e. on merit.

Per contra, it is contended by Mr. Nageswar Rao, Ranjit Kumar and Gopal Prasad that such submission

is contrary to the note appended to Rule 2 of the Civil Services Examination Rules 1996 (in short the Rules) which

says that 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 ar e vacancies after allocation of all the

candidates who can be allocated to a service/post in accordance with their pref erences.

It is their further contention that the stand taken by the Union of India also runs to the teeth of the

proviso to sub-Rule 2 of Rule 16 of the Rules which says that the candidates belonging to the Scheduled Castes, the

Scheduled Tribes or the Other Backward Classes who have been r ecommended by the Commission without resorting

to the relaxed standard, referred to in the Rules, shall not be adjusted against the vacancies reserved for the

Scheduled Castes, the Scheduled Tribes and the Other backward classes. They further contended that the

reserved category candidate entitled to service/post on the basis of his/her own merit in the general

category will have the option of his preference kept reserved for the reserved category but while

computing the percentage of reservation, he/she will be deemed to have been computed as an open

category candidate (general candidate) and not as a reserved category candidate.

The sole question that revolves ar ound for determination is, as to whether those OBC candida tes, who

were selected on merit and were placed in the list of open category candidates could still for the purpose of

placement (preference) be consider ed to be OBC candidates thereby exhausting the quota reserved for relaxed OBC

candidates from allocation of service.

In our view, the pr esent controversy is no mor e res-integra in view of the judgment of this Court in

the case of Indra Sawhney v. Union of India 1992 Supp (3) SCC 217. This Court at (SCC p. 735, para 811) held as under: "In this connection it is well to r emember that the r eservations under Article 16 (4) do not oper ate 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."

In the case of R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745, a Constitution Bench of this Court

considered the question of appointment and promotion and roster points vis-à-vis reservation and held at S CC p. 750,

para 4 as under:”

When a percentage of reservation is fixed in respect of a particular cadre and the r oster 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 g eneral category are not entitled to be

considered for the r eserved posts. On the other hand the reserve category can didates can compete for the nonreserve 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 r eservation of appointments or posts in favour of any Backward Class

of citizens which, in the opinion of the State if not adequately represented in the S ervices 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 S ervices. While doing so the State Government may

take the total population of a particular Backward Class and its representation in the State S ervices. When the State

Government after doing the necessary exercise make the reservation and provides the extent of percentage of posts

to be reserved for the said Backward Class then the percentag e 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 r oster point which is reser ved 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 p roviding certain percentag e of r eservations for the

Backward Classes ar e 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."

In Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 it has been held by this Court (at page SCC

705) that while determining the number of posts r eserved for Scheduled 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 categ ory candidates.

This Court in Ritesh R. Sah v. Dr. Y.L. Yamul & Ors. (1996) 3 SCC 253 after considering the variou s

decisions of this Court, as referred to above, has come to the conclusion at SCC p.261 -262 as under:

" In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is

irresistible that a student who is en-titled to be admi tted on the basis of merit though belonging to a reserved

category cannot be consider ed to be admitted against seats r eserved for reserved categ ory. 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 r eserved 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 categ ory and thereafter the cases of less meritorious reserved category

candidates should be considered and they 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 in 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." (emphasis supplied)

It will be noticed that the decision in Ritesh R. Sah (supra) was render ed on 15th February, 1996. CSE

Rules, 1996 were notified on 14.12.1996. That is the fall out of the decision of this Court in Ritesh R. Sah (supra).

The relevant rules for our considerati on for this purpose are Rule 2 and Rule 16 of the Rules. Rule 2

and Rule 16 read as under:

" 2. A candidate shall be r equired 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 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 consider ed 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 car eful while indicating preferences for various services/posts. In this

connection, attention is also invited to Rule 18 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 service/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 prefer ence, 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 a service/post in accordance with their prefer ences. (emphasis supplied) 16. (i) 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 (written examination as well as

interview) and in that order so many candidates as ar e found by the Commission to be qualified at the examination

shall be recommended for appointment up to the number of unreserved vacancies decided to be filled on the result

of the examination.

(ii) The candidates belonging to any of the Scheduled Castes or the Scheduled Tribes or the other Backward Classes

may to the extent of the number of vacancies r eserved for the Scheduled Castes and the Scheduled Tribes and the

Other Backward Classes be recommended by the Commission by a r elaxed standard, subject to the fitness of these

candidates for selection to the services.

Provided that the candidates belonging to the Scheduled Castes, the Scheduled Tribes and the other Backward

Classes who have been recommended by the Commission without r esorting to the relaxed standard referred to in this

sub-rule, shall not be adjusted against the vacancies r eserved for the Scheduled Castes, the Scheduled Tribes and the

Other Backward Classes. (emphasis supplied)

Note appended to Rule 2 is crystal clear and unambiguous. It shows that if a candidate 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 ther e ar e vacancies after allocation of all the candidates who can be allocated to a

service/post in accordance with their prefer ences.

Further, proviso to sub-Rule 2 of Rule 16 makes it further clear in unambiguous terms that the candidates belonging

to the Scheduled Castes, the Scheduled Tribes or the Other Backward Classes who have been r ecommended by the

Commission without resorting to the relaxed standard (i.e. on merits), referred to in this sub-Rule, shall not be

adjusted against the vacancies r eserved for the Scheduled Castes, the Scheduled Tribes and the Other backward

classes.

This position has been made crystal clear in Ritesh R. Sah (supra) as referred to above that

while a reserved category candidate entitled to admission on the basis of his merit, will have the option

(preference) of taking admission in the college where 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.

By way of illustration, a reserved category candidate, recommended by the Commission

without resorting to relaxed standard (i.e. on merit) did not get his own preference 'say IAS' in the

merit/open category. For that, he may opt a preference 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 reserved for the Scheduled Castes, Scheduled Tribes and other Backward

Classes. This is the mandate of proviso to sub-Rule 2 of Rule 16.

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 resorting to relaxed standard, but while computing the

quota/percentage of reservation he/she will be deemed to have been allotted seat as an open cat egory

candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by

resorting to relaxed standard.

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.

In the present case, the Commission recommended one to one vacancy, altog ether 737 candidates

against 737 posts. Against the OBC categ ory 174 candidates were recommended against 174 posts. By opting a

preference, the quota r eserved for OBC candidate does not exhaust. There are still vacancies after allocation of all

the candidates in order of prefer ence who can be allotted to any of the r emaining services/posts in which there ar e

vacancies after allocation of all the candidates who can be allotted to the servic es/posts in accordance with their

preference. This is the mandate of the note appended to Rule 2.

At the risk of repetition, the Commission recommended 737 candidates against 737 posts. So far OBC

category is concerned, 174 candidates were recommended against 174 posts. We are totally at a loss as to what had

happened to those remaining services/posts after allocation of services to all the candidates in terms of their

preferences. We say no more.

In the view that we have taken, we do not see any infirmity whatsoever in the orders impugned

passed by the High Court, which would warrant our interference. These appeals are devoid of merit and are

dismissed with costs, quantified at Rs. 10,000/- for each of the respondents. The appellant is directed to

allot jobs to the respondents within a period of one month from today.