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.