Chennai High Court Order

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.3.2008
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU
Writ Petitions No.37196 of 2007, 33946 of 2007, 1814 of 2008,
1815 of 2008, 3443 of 2008 and 3444 of 2008
AND
M.P.No.1 of 2007 in W.P.No.33946 of 2007,
M.P.No.1 of 2008 in W.P.No.1814 of 2008,
M.P.No.1 of 2008 in W.P.No.1815 of 2008,
M.P.No.1 of 2008 in W.P.No.3443 of 2008 and
M.P.No.1 of 2008 in W.P.No.3444 of 2008
W.P.No.37196 of 2007:
1. Ramanjit Kaur Sethi
2. Pranjal J.Hazarika
3. Vineet Jain
4. Ashish Singh
5. Monica Jaitly
6. Vivek Agarwal
7. Aashwita Lal
8. Pratima Tripathi
9. Prateek Kumar Singh
10.Praveen Kumar Yadav
11.Rajnish Kumar Tripathi
12.Anup Kumar Shukla
13.Syed Sarfraj Ahmad ... Petitioners
Vs.
1.The Central Administrative Tribunal,
rep.by its Registrar,
High Court Complex,
Chennai-600104.
2.Ramesh Ram
3.Union of India,
rep.by Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pensions,
New Delhi.
4.The Union Public Service Commission,
rep.by its Secretary, Dholpur House,
Shahjahan Road,
New Delhi. ... Respondents

W.P.No.33946 of 2007:
1.K.Chandrasekar
2.Navelendra Kumar Singh
3.V.Chinnamallikarjuna ... Petitioners
Vs.
1.The Central Administrative Tribunal,
rep.by its Registrar,
High Court Complex,
Chennai-600104.
2.R.Arulanandan
3.Union of India,
rep.by Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pensions,
New Delhi.
4.The Union Public Service Commission,
rep.by its Secretary, Dholpur House,
Shahjahan Road,
New Delhi.
5.M.Sibi Chakkravarthy
6.Dr.V.Ram Prasath Manohar
7.M.G.Rajamanickam
8.Laxmi Narayanan
9.Sasi Rekha R.M. ... Respondents

(Respondents 5 to 9 impleaded as per the
order of the Court dated 23.1.2008 made
in M.P.No.1 of 2008 in W.P.33946/2007)
W.P.No.1814 of 2008:
Union of India, rep.by
Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances
and Pension,
New Delhi. ... Petitioner
Vs.
1.Ramesh Ram
2.K.Chandrasekar
3.Naviendra Kumar Singh
4.V.Chinnamallikarjuna
5.Central Administrative Tribunal
Madras Bench, Chennai. ... Respondents
W.P.No.1815 of 2008:
Union of India, rep.by
Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances
and Pension,
New Delhi. ... Petitioner
Vs.
1.R.Arulandan
2.K.Chandrasekar
3.Naviendra Kumar Singh
4.V.Chinnamallikarjuna
5.Central Administrative Tribunal,
Madras Bench, Chennai. ... Respondents
W.P.No.3443 of 2008:
The Union Public Service Commission,
rep.by its Secretary,
Dholpur House, Shahjahan Road,
New Delhi. ... Petitioner
Vs.
1.R.Arulandan
2.Union of India,
rep.by Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pensions,
New Delhi.
3.K.Chandrasekar
4.Navlendra Kumar Singh
5.V.Chinnamallikarjuna
6.Registrar,
Central Administrative Tribunal,
Chennai Bench,
Chennai. ... Respondents
W.P.No.3444 of 2008:
The Union Public Service Commission,
rep.by its Secretary,
Dholpur House, Shahjahan Road,
New Delhi. ... Petitioner
Vs.
1.Ramesh Ram
2.Union of India,
rep.by Secretary to Government,
Department of Personnel & Training,
Ministry of Personnel,
Public Grievances & Pensions,
New Delhi.
3.K.Chandrasekar
4.Navlendra Kumar Singh
5.V.Chinnamallikarjuna
6.Registrar,
Central Administrative Tribunal,
Chennai Bench,
Chennai. ... Respondents

* * *

All the Writ Petitions filed under Article 226 of the Constitution of India.
W.P.No.37196 of 2007 has been filed praying to issue a Writ of Certiorarified Mandamus to call for the records of the 1st respondent Tribunal in O.A.No.775 of 2006, dated 17.9.2007 and quash the same as being illegal, arbitrary and unjust and consequently direct the respondents 3 and 4 to appoint the petitioners to Civil Service with all attendant benefits, with due seniority and monetary benefits.
W.P.No.33946 of 2007 has been filed praying to issue a Writ of Certiorarified Mandamus to call for the records of the 1st respondent Tribunal in O.A.No.690 of 2006, dated 17.9.2007 and quash the same as being illegal, arbitrary and unjust and consequently direct the respondents 3 and 4 to appoint the petitioners to Civil Services with all attendant benefits.
W.P.No.1814 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the first respondent in O.A.No.775 of 2006 and to quash the order dated 17.9.2007.
W.P.No.1815 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the first respondent in O.A.No.690 of 2006 and to quash the order dated 17.9.2007.
W.P.No.3443 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the 6th respondent Central Administrative Tribunal, Chennai Bench, Chennai and quash the order dated 17.9.2007 made in O.A.No.690 of 2006.
W.P.No.3444 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the 6th respondent Central Administrative Tribunal, Chennai Bench, Chennai and quash the order dated 17.9.2007 made in O.A.No.775 of 2006.


For petitioners in
W.P.Nos.37196/2007 & : Mr.N.G.R.Prasad for
33946/2007 : M/s.Row & Reddy
For R.2 in W.P.No.
37196/2007, who is
R.1 in W.P.Nos.1814 &
3444/2008 and also
for R.2 in W.P.No.
33946/2007, who is R.1 in : Mr.Vijaynarayan, S.C. for
W.P.Nos.1815/2008 & M/s.Karthik Mukundan
3443/2008 :

For R.3 in W.P.Nos.
37196/2007& 33946/2007,
who are the appellants in
W.P.Nos.1814/2008 & : Mr.V.T.Gopalan, Addl.S.G. for
1815/2008 and Mr.P.Wilson, Asst.S.G.
R2 in W.Ps.3443 &
3444/2008
For R.4 in W.P.Nos.
37196/2007 & 33946/2007, : Mr.A.L.Somayaji, S.C. for
who are the appellants in Mr.K.Sridhar
W.Ps.3443/2008 &
3444/2008

For R.5 to R.9 in
W.P.No.33946/2007 : Mr.N.Srinivasan
For others : No appearance
COMMON ORDER
ELIPE DHARMA RAO, J.
Since all the matters on hand are inextricably interconnected with each other, they are heard together and are being disposed of by this common order.
2. All these writ petitions pertain to the selection of All India Service Officers and Group A and Group B officers in various Government Departments conducted by the Union Public Service Commission. The Civil Services Examination is a combined examination catering to recruitment in more than 20 civil services and it consists of preliminary examination, main examination and interview.
3. The Union Public Service Commission has issued a notification dated 4.12.2004 to fill up 457 posts in 21 different cadres. The preliminary examination was conducted on 15.5.2005, the main examination was conducted on 21.10.2005 and interview was held on 7.4.2006 and the select lists were issued on 8.5.2006 and 3.4.2007. The break-up details of the posts as mentioned in the notification is as follows:

Sl. No. Cadre/Service SC ST OBC UR Total
01. I.A.S. 14 06 22 45 87
02. I.F.S. 02 02 06 10 20
03. I.P.S. 17 08 27 51 103
04. I.P. & T.A.F.S. Nil Nil Nil 01 01
05. IAAS 02 Nil 02 04 08
06. IC & CES 10 05 18 34 67
07. I.D.A.S. 02 01 02 05 10
08. I.R.S. 05 02 10 21 38
09. I.O.F.S. 01 Nil 01 01 03
10. I.P.O.S. Nil Nil 01 04 05
11. I.C.A.S. 01 Nil 01 Nil 02
12. I.R.T.S. 05 02 09 19 35
13. I.R.A.S. 03 02 06 12 23
14. I.R.P.S. 02 02 04 08 16
15. R.P.F. 01 01 03 05 10
16. I.D.A.S. Nil Nil Nil Nil Nil
17. I.I.S Nil Nil Nil 01 01
18. I.T.S. Nil Nil 01 01 02
19. A.F.H.C.S. Nil Nil Nil 14 14
20. D.A.N.I.C.S. 01 01 03 05 10
21. D.A.N.I.P.S. Nil Nil 01 01 02
Total 66 32 117 242 457

4. The Union Public Service Commission had published a list of 425 candidates who were successful in the Main Examination in the first phase and the remaining 32 in the second phase along with a consolidated reserve list of 64 candidates. The 31 OBC candidates and 1 SC candidate whose names found a place in the merit list did not choose to get the posting as per the unreserved category list and they chose to avail the higher services under the reserved quota.
5. In these circumstances, two of the selected candidates, viz. R.Arulanandan and Ramesh Ram, who ranked 351 and 330, out of 425 successful candidates have filed O.A.Nos.690 of 2006 and 775 of 2006 before the Tribunal. In O.A.No.690 of 2006, the applicant therein viz. R.Arulanandan has prayed:
"1. to declare Rule 16(2) of the Examination Rules issued by the Government of India for the Civil Services Examination, 2005, vide notification No.13018/8/2004 AIS (1) dated 4.12.2004 as unconstitutional, null and void and to consequently direct the respondents to make allocation to various services on the basis of the Civil Services Examinations 2005 by treating 31 Other Backward Category (OBC) candidates, who were selected on merit, as General Category candidates, and
2. to consequently re-work the allocation in respect of remaining Other Backward Category (OBC) candidates and allocate the applicant herein to any higher preferred service on the basis of the choice given by the applicant."
6. In O.A.No.775 of 2006, the applicant therein viz. Ramesh Ram has prayed:
"1. to direct the respondents to make allocation to various services on the basis of the Civil Services Examinations 2005 by treating 31 Other Backward Category (OBC) candidates, who were selected on merit, as General Category candidates; and
2. to consequently re-work the allocation in respect of remaining Other Backward Class candidates and allocate the applicant herein to any higher preferred service on the basis of the choice given by him."
7. The Tribunal, has disposed of both the O.As., with certain directions. Aggrieved, these writ petitions are filed. Pending these W.Ps., some of the candidates, who did not get their postings and who are not parties before the Tribunal, have filed M.P.No.1 of 2008 in W.P.No.33946 of 2007, to implead them as party respondents to W.P.No.33946 of 2007 and the said petition having been allowed, they are also brought on record as respondents 5 to 9 in W.P.No.33946 of 2007.
8. Heard Mr.V.T.Gopalan, learned Additional Solicitor General appearing for the Government of India, Mr.A.L.Somayaji, learned senior counsel appearing for the Union Public Service Commission, Mr.Vijayanarayanan, learned senior counsel appearing for the applicants before the Tribunal, Mr.N.G.R.Prasad, appearing for the petitioners in W.P.Nos.37196 and 33946 of 2007 and Mr.N.Srinivasan, appearing for the impleaded parties.
9. The entire case on hand revolves round the application of Rule 16(2) of the Civil Services Examination Rules, as amended. While on the part of the applicants before the Tribunal it is contended that the meritorious reserved candidates should not be appointed in the posts meant for reserved category and that if the meritorious reserved candidates were not appointed in the posts meant for reserved candidates, they would have got better service or post, on the part of the Government of India and the Union Public Service Commission, it is contended that Rule 16(2) was introduced, taking into consideration the over all sufferings of the candidates and it champions the cause of the candidates. The impleaded parties, who did not get their postings, would attribute the fault on the amended provision of Rule 16(2) for their non-appointment in spite of being successful at all stages of selection and would state that the amended rule provided caveat for the UPSC and the Government of India to bye-pass the earlier guidelines regarding the allocation of services for the reserved category candidates.
10. For better appreciation of the case on hand, Rule 16(2) of the Civil Services Examination Rules, both before and after amendment, is extracted hereunder:
Rule 16(2) unamended
Rule 16(2) amended
The candidates belonging to any of the Scheduled Castes or Scheduled Tribes or the Other Backward Classes may, to the extent of the number of vacancies reserved for the Scheduled Castes and the Scheduled Tribes and the Other Backward Classes be recommended by the Commission by a relaxed standard, subject to the fitness of these candidates for selection to the 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.
While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes or Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government, if by this process, they get a service of higher choice in the order of their preference.
11. The above said unamended Rule 16(2) was the subject matter before the Delhi High Court in Satyaprakash Vs. Union of India, in C.W.P.No.3561 of 1999, dated 10.9.2002, which was the subject matter in UNION OF INDIA AND ANOTHER vs. SATYA PRAKASH AND OTHERS [(2006) 4 SCC 550]. In the said case, while dealing with the question as to 'whether the OBC candidates, who were selected on merit and were placed in the list of open category candidates could, still for the purpose of placement (preference), be considered to be OBC candidates thereby exhausting the quota reserved for relaxed OBC candidates' the Honourable Apex Court has held as follows:
"If a candidate of the Scheduled Caste, the 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 but while computing the quota/percentage of reservation he/she will be deemed t have been allotted a seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the commission by resorting to the relaxed standard. Simply because he opted a preference from the reserved category would not exhaust the quota of OBC category candidate selected under the relaxed standard. This is the mandate of the proviso to sub-rule (2) of Rule 16."
"When a reserved category candidate recommended by the Commission without resorting to the relaxed standard opts a preference from the reserved category, in the 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, altogether 737 candidates against 737 posts. Against OBC category 174 candidates were recommended against 174 posts. By opting a preference, the quota reserved for an OBC candidate does not exhaust. There are still vacancies after allocation of all the candidates in the order of preference who can be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allotted to the services/posts in accordance with their preference. This is the mandate of the note appended to Rule 2."
12. By this, the Honourable Supreme Court has settled the position regarding the issue on hand holding that a reserved category candidate, gets selected on his own merit, he should be considered only as an unreserved candidate and not as a reserved category candidate. However, subsequent to this judgment by the Honourable Apex Court, the impugned amended Rule 16(2) was brought into force, which is being vehemently commented as being brought into force only to over-rule the judgment of the Honourable Supreme Court. But, on the part of the Government of India and the Union Public Service Commission, Mr.V.T.Gopalan, the learned Additional Solicitor General, has argued that a decision is a precedent on its own facts and reliance on the decision, without looking into the factual background of the case on hand, is impermissible and hence would argue that the earlier case decided by the Honourable Supreme Court is quite different from the case on hand and therefore the ratio applied by the Honourable Supreme Court in the above judgment cannot be applied to the facts of the case on hand. In support of his arguments, the learned Additional Solicitor General would rely on a judgment of the Honourable Supreme Court in STATE OF RAJASTHAN vs. GANESHI LAL [2008 (1) SCJ 222], wherein it has been held:
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
13. There is no quarrel with regard to the above proposition laid down by the Honourable Supreme Court. But, in the case on hand, the strong criticism to the impugned Rule 16(2), as amended, is that it has been brought into existence only to over-rule the above judgment of the Honourable Supreme Court. This argument has been further refuted by the learned Additional Solicitor General on the ground that the Rule has got sanctity of legislation and it being the policy decision of the Government, the Court is not expected to interfere with the same. In support of his arguments, the learned Additional Solicitor General has relied on a judgment of the Honourable Apex Court in STATE OF ANDHRA PRADESH AND OTHERS ETC. vs. Mc.DOWELL AND CO. AND OTHERS [AIR 1996 SC 1627 = (1996) 3 SCC 709] wherein a Three Judge Bench of the Honourable Apex Court has held:
"A law made by the Parliament or the Legislature can be struck down by Courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground. If an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. An enactment cannot be struck down by applying the principle of proportionality when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. The two rules stated above for striking down of enactments are however confined to an Act made by the Legislature."

14. But, in the subsequent judgment, in O.KONAVALOV vs. COMMANDER, COAST GUARD REGION AND OTHERS [(2006) 4 SCC 620], the Honourable Apex Court has held:
"There are no excluded categories of State policy or practice which can claim exemption from judicial consideration."

15. Therefore, in view of the above judgment of the Honourable Apex Court, the argument of the learned Additional Solicitor General, that the Court cannot interfere with the policy decisions of the Government, cannot be accepted. Further more, it is a well settled proposition of law that reasonableness and non-arbitrariness are the hallmarks of an action by the State and an unfair executive action can very well be the reason for judicial review. Thus, rejecting the argument of the learned Additional Solicitor General regarding scope of these writ petitions, now we shall proceed to deal with the other aspects of the case.

16. Article 15 of the Constitution deals with discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Article 16(1) guarantees equality of opportunity in matters of public employment. The term 'Backward Classes' is a comprehensive one, comprising four Sections of our society viz. Scheduled Castes, Scheduled Tribes, Other backward classes and denotified communities. These sections constitute the underprivileged classes of the country, for whom special treatment is accorded in our Constitution.
17. Articles 15(4) and 16(4) profess to bring the socially and educationally backward people to the forefront. Only for the purpose of invoking the equality clause, the makers of the Constitution thought of protective discrimination and affirmative action. The whole basis of reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes and Other Backward Class people as a class of persons who have been suffering since a considerable length of time due to social and educational backwardness and an affirmative action has been extensively developed in our country to redress the wrongs of the past.

18. The weaker sections of the society are victims of social injustice, practice of untouchability and segregation from the mainstream of national life. The object of protective discrimination is to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person in which justice social, economic and political are enjoyed by them in equal measure with the general members of the society. Dr.B.R.Ambedkar in his closing speech, in reply to the Debates in the Constituent Assembly, had stated that 'the edifice in the Constitution was built up with laborious effect'. The provision for reservation in appointments under Article 16(4) is not aimed at economic upliftment or alleviation of poverty. Article 16(4) is specifically designed to give a due share in the State power to those who have remained out of it mainly on account of their social, educational and economic backwardness. Reservation affords backward class of citizens a golden opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process.

19. From the materials placed on record and upon hearing the learned counsel on either side, we are able to see that the Union Public Service Commission has released the list of selected candidates for 425 candidates, of which 210 are unreserved, 117 are OBC, 66 are SC and 32 are ST. It is not in dispute that that 31 OBC candidates and one SC candidate was qualified on their own merit, but not on any relaxed standards. But, these 31+1 candidates were treated as if they have availed their respective reservation quota, instead of treating them as unreserved quota candidates under the guise of the impugned Rule 16(2). For this the Government of India has stated that to ensure that reserved category candidates were not put to disadvantageous position in the matter of service allocation vis-a-vis reserved category candidates selected on unreserved standards were allocated service against the reserved vacancy of their category if it led to such candidates getting a service of their higher preference and therefore Rule 16(2) has been framed to ensure and subserve and further advance the very principle of reservation in view of reserved category candidates to get a service of higher choice in the order of their preference.

20. At this juncture, it is relevant to point out the law laid down by the Honourable Apex Court in this regard. In INDRA SAWHNEY vs. UNION OF INDIA [1992 SUPP.(3) SCC 217], the Honourable Apex Court has held:
"In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

21. In R.K.SABHARWAL AND OTHERS vs. STATE OF PUNJAB AND OTHERS [(1995) 29 ADMINISTRATIVE TRIBUNALS CASES 481], a Constitutional Bench of the Honourable Supreme Court has held:
"When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. .... When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats...."
(emphasis supplied)

22. Therefore, it is clear that if reserved category candidates get selected on their own merit, without availing the relaxed standards, their number should not be counted against the reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation.
23. The whole contention of the Government of India in support of the impugned Rule 16(2) is that it better serves the purpose of reservation for reserved category candidates to get a service of higher choice in the order of their preference, ignoring the basic principle upheld by the Honourable Apex Court and even admitted by the Government of India in para No.4 of their affidavit, that the normal policy of the reservation stipulates that the reserved category candidates, do have right to compete for unreserved seats. In the case on hand, admittedly, 31 OBC and 1 SC candidate have got selected on their own merit and they have not availed any relaxed standards, so as to bring them within the folder of 'reserved category'. Except for the fact that they hail from SC and OBC categories, they cannot be branded as 'reserved category' since their selection was on their own merit. If they are to be treated as 'reserved category' for any purpose, much less as mandated by the impugned Rule 16(2), it will put a stumbling block to the other 'reserved category', since their selection is definitely affected. To explain, even though these 31 OBC and 1 SC candidate were selected on their own merit, instead of accommodating them within the 210 unreserved candidates, if they are accommodated in the 117 OBC and 66 SC candidates, definitely, the same number of candidates who could get selection under the relaxed standards, are being denied the postings, as in the case on hand. It is to be held that there cannot be any dispute with the proposition that if a candidate is entitled to be selected on the basis of his own merit, then, such selection should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4) of the Constitution.
24. The learned Additional Solicitor General would strongly rely on a judgment of the Honourable Apex Court in RITESH R.SAH vs. DR.Y.L.YAMUL AND OTHERS [(1996) 3 SCC 253], wherein it has been held:
"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 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."
25. The learned Additional Solicitor General would also rely on a Full Bench judgment of the Rajasthan High Court in SHEIKH MOHD.AFZAL vs. STATE OF RAJASTHAN AND ANOTHER [AIR 2008 RAJASTHAN 21], wherein also while considering the question 'whether admission of a candidate applied for reserved quota and entitled to be admitted in MBBS course on the basis of his/her own merit, should be first against the reserved quota or against the general category' and relying on the above judgment of the Honourable Apex Court in Ritesh R.Sah case, the Full Bench of the Rajasthan High Court has held:
"Where a candidate belonging to reserved category gets selected competing with open category candidates on the basis of merit, the selection of such candidate needs to be considered in the general and cannot be counted against the reserved category since such selection is purely based on merit. However, the Constitutional right of such candidate belonging to reserved category is not taken away and such selection of a reserved category candidate on merit in open competition does not put him or her in disadvantageous position than the other less meritorious reserved category candidates who are selected against the quota reserved for that category, be it a preference of subject or institution or place or to such other right to which he/she may be entitled as if he/she were selected in the reserved category."

26. Relying on the above judgments, the learned Additional Solicitor General would argue that in Ritesh R.Sah case the Honourable Supreme Court has provided a guideline to the effect that the reserved category candidate would not be put to disadvantageous situation despite the fact that they are more meritorious than other OBC candidates and as such they may not be deprived from the benefit of getting jobs in services of their liking, which was followed by the Full Bench of the Rajasthan High Court and would argue that since the impugned Rule 16(2) also envisages the same purpose, no challenge to the same could be entertained.
27. But, this argument of the learned Additional Solicitor General is not acceptable to us for the reason that nowhere in the said judgments, it has been contemplated that by reason of the meritorious reserved category candidates, other reserved category candidates can be deprived of, as the case in hand. Further more, both the above judgments, are rendered in a different context that is regarding a common entrance test to many courses and the case on hand pertains to multi post recruitment. Further more, as has been discussed supra, in the name of allotting a better service to a reserved candidate, who got selected on his own merit, without availing the relaxed standards, the impugned Rule is working hard against the 'reserved category candidates' who availed the relaxed standards. Had the meritorious reserved category candidates been adjusted against the unreserved category, definitely, it would have paved way for the other reserved category candidates for their selection, who availed the relaxed standards. It has not been done so whereby the percentage of representation of the reserved candidates is varying, which is against the judgment of the Honourable Apex Court in Sabharwal's case, cited supra, wherein it has been held, in no uncertain terms, that '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'.
28. In Para No.13 of the affidavit filed in support of W.P.Nos.1814 and 1815 of 2007, the Government of India has stated as follows:
"That in the context of the Civil Services Examination 2005, the position of the vacancy, the first phase recommendation by the UPSC, the adjustment of reserved category candidates selected on merit and the candidates recommended by the UPSC from the consolidated reserved list is summarized as follows:

The break up of vacancies among various categories was as follows.
Category General OBC SC ST
Vacancies 242 117 66 32


The community wise break up of the candidates recommended by the UPSC in the first phase is as follows:
Category General OBC SC ST Total
Recommended 210 117 66 32 425
candidates


The reserved category candidates selected on merit and adjusted against the general vacancy are as follows:
Category OBC SC ST
Reserved candidates selected on merit 31 1 0
Reserved candidates selected on merit and adjusted against the general vacancy

The community wise break up of the recommended candidates by UPSC from consolidated reserve list is as follows:
Category General OBC SC ST Total
Recommendation by UPSC in first phase 27 5 0 0 32

Thus, in the first phase the UPSC recommended 425 candidates keeping the consolidated reserved list of 64 candidates as per rule 16(4) and 16(5) of CSE-2005. Out of 425 candidates, a total of 31 OBC candidates and 1-SC candidate were selected without availing any of the concessions or relaxations in the eligibility or selection criteria at any stage of examination i.e. at general standards. Out of above 31 OBCs and 1-SC candidates, 26 OBCs and 1 SC candidates were allocated service against the reserved vacancy a by this process they got a service of higher order in order of preference. This has been as per rule 16(2) of CSE-2005. If these 27 candidates were considered for service allocation against the general vacancy and in competition with general candidates, they would have got the service of lower preference. Rule 16(2) enables a candidate of reserved categories to get a service of higher preference so that he isn't placed at disadvantageous position vis-a-vis other candidate of his category. This is in conformity with the judgment of SC in the case of Ritesh Sah, in the case of R.K.Shabarwal Vs. State of Punjab and in the case of Anurag Patel. It is submitted that because of first the stay order and then final order by the Hon'ble CAT, the appointment from the consolidated reserved list could not been made affecting the process of filling up of vacancies, even though the process of service allocation has been done strictly as per rules and also equitable and fair manner."
29. From the above, it is clear that 32 candidates who are eligible to be included in the open unreserved merit list, were included in the OBC list and SC list as a result of which, the same number of OBC and SC candidates, who are eligible for consideration under the reserved category are deprived. This is not the intention of the judgment of the Honourable Supreme Court in Satyaprakash's case or the intention of Rule of reservation enshrined under Article 16(4) of the Constitution. Post and service are not separate and a candidate who was selected without availing the relaxed standards and for that purpose he is treated as a 'reserved candidate', the equal number of persons who are eligible for the post under the reserved quota are deprived. It is causing great prejudice to the reserved candidate. Theoretically, though it is contended on the part of the official respondents based on the above details, that only to subserve the purpose of the reserved category candidates who got selected on their own and not to suffer their merit, Rule 16(2) is inserted, but, practically, it is working against them. By resorting to Rule 16(2), the official respondents have deprived 31 OBCs and one SC candidate from getting their postings. It is also seen that such vacant slots created by the meritorious reserved candidates are then filled by other unreserved candidates. The negative effect of the impugned Rule 16(2) on the reserved category candidates, who availed the relaxed standards has not been taken care of by the official respondents and we are unable to find any rationale behind the release of two lists containing 425 and 32 candidates respectively. Transfer of meritorious reserved candidates posts to the unreserved category, by treating the meritorious reserved candidates not as unreserved category candidates, but as reserved candidates, is keeping the unreserved category posts intact, while depriving the rights of the same number of reserved category candidates. Therefore, the methodology narrated by the official respondents is contrary to the very rule of reservation enshrined under Article 16(4) of the Constitution.
30. At this juncture, we also deem it proper to quote the 'Note', appended to the Notification dated 4.12.2004, which reads as follows:
"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."
31. As could be seen, this Note and Rule 16(2) run counter to each other and thus it is clear that the official respondents are not clear in their minds as to the mode of consideration and allotment of services/posts. Mr.Vijayanarayanan, the learned senior counsel has demonstrated before us as to how this Rule 16(2) is working against the interest of SC/ST/OBC candidates, further working even against Rule 16(4) of the Rules. He has also argued that the above paragraph No.13 of the affidavit filed by the Government of India in W.P.Nos.1814 and 1815 of 2007 (extracted supra), is against Rule 16(4) of the Rules and that the merit list is not prepared as per the Rule 16(4). He has also argued that the official respondents are not following Rule 16(4) of the Rules, which reads as follows:
"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 candidate 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."
32. Mr.A.L.Somayaji, the learned senior counsel appearing on behalf of the Union Public Service Commission has placed his arguments contending that the impugned Rule 16(2) subserves the purpose of the reserved category candidates who were included in the merit list for unreserved posts, when they are unable to get their preference of post and would further argue that the Tribunal has committed an error in directing to re-work the results. Mr.N.G.R.Prasad, learned counsel appearing for the petitioners in W.P.Nos.37196 of 2007 and 33946 of 2007 would argue that if the directions of the Tribunal are allowed to continue, they will affect the interest of the meritorious unreserved candidates, since it amounts to double consideration for the reserved category candidates. The learned counsel appearing for the impleaded parties has adopted the arguments of Mr.Vijayanarayanan, who vehemently contended that the impugned Rule 16(2) is working against the interest of the reserved category candidates.

33. Post and service are not separate. The rule of reservation is applicable to a post in service. When a post is reserved, the question of allotting a service in the reserved category to a person who has been included in the unreserved merit list, does not at all arise. It amounts to reducing the number of posts reserved for the SC/ST/OBC and adding the same number of posts to the unreserved category, thus making a mockery of the entire rule of reservation. Under the guise of allotting service as per their preference, the number of posts allotted to a particular category cannot be reduced. It is a trite law that justice must be equitable. Justice to one group at the cost of injustice to other group is another way of perpetuating injustice. If a measure tends to perpetuate inequality and makes the goal of equality a mirage, such measure should not receive the approval of the Court. Instead of being affirmative, progressive and pragmatic in achieving the social justice, the impugned Rule 16(2) runs counter to the benefit of the SC/ST/OBC candidates, guaranteed under the Constitution, since by virtue of this Rule, while the posts allotted to the unreserved category remained intact, the number of posts allotted to the SC/ST/OBC category are getting affected as even the candidates who got selected on their own merit are being treated and considered as 'reserved category' candidates instead of being considered as unreserved category candidates. By virtue of the impugned Rule 16(2), the constitutional mandate under Article 16(4) is attempted to be disturbed by the official respondents, which can never be allowed to happen. On a perusal of the entire materials placed on record and in view of our above discussions, we have no hesitation to hold that this impugned Rule 16(2) has been brought into existence as a colourable subordinate legislation, only to nullify the judgment of the Apex Court in Satyaprakash's case. For all these reasons, we hold that the impugned Rule 16(2) is unconstitutional being contrary to Articles 14, 16(4) and 335 of the Constitution and the same is thus, null and void in the eye of law. Therefore, The entire action of the authorities under the amended Rule 16(2) is against law and contrary to Articles 14, 16(4) and 335 of the Constitution.
34. The explanation offered by the learned Additional Solicitor General that the post vacated by the reserved candidate, who is included in the unreserved list, on his allocation to better service in reserved posts/service, is being filled up by a reserved candidate, does not seem to be reasonable since it is the settled law that a reserved category candidate, who availed the relaxed standards, cannot claim the post of a unreserved category, since he has no merit to occupy that post, unless the standards are relaxed. Therefore, by virtue of the impugned Rule 16(2), the official respondents have given a go-bye to the settled law. The Government should balance the interest of both the categories, not throwing any category to a disadvantageous position.
35. For the above discussion, it is clear that though it is stated that the impugned Rule 16(2) was introduced with a laudable object of subserving the purpose of the SC/ST/OBC candidates included in the unreserved merit list, practically it is working detrimental to the interest of the SC/ST/OBC candidates, who are claiming appointments as per the notification dated 4.12.2004 issued by the UPSC under the reserved categories. Therefore, the said impugned Rule 16(2) is unreasonable and against the settled principles of law and the Rule of reservation enshrined under Article 16(4) of the Constitution and also depriving adequate representation of the SC/ST/OBC candidates in the 21 services notified in the Notification dated 4.12.2004, as contemplated under Article 335 of the Constitution. Therefore, the said Rule is liable to be struck down and accordingly it is struck down as violative of Articles 14, 16(4) and 335 of the Constitution. In view of striking down of the impugned Rule 16(2), considerable hardship/prejudice is caused to the SC/ST/OBC candidates, who got selected on their own, without availing the relaxed standards and included in the merit list. But, for that matter, we cannot take a different view except striking down the impugned Rule 16(2) as being opposed to the Rule of Reservation enshrined under Article 16(4) of the Constitution, taking into consideration the interest of SC/ST/OBC candidates, who are claiming the posts after availing the relaxed standards, as they are being deprived of and the impugned Rule 16(2) is working against their interest. Therefore, the merit lists prepared by the Government of India and the Union Public Service Commission are also set aside. Consequently, we direct the Government of India and the Union Public Service Commission to proceed from the stage of announcement of results for all the 457 posts in 21 services notified in the Notification dated 4.12.2004 and re-work the allocation, de hors the impugned Rule 16(2), and treat the reserved candidates who got selected on their own merit and without availing the relaxed standards as unreserved candidates and fill the posts of 'reserved category' with the candidates, who availed the relaxed standards i.e. 66 SC, 32 ST, 117 OBC candidates, after preparing the merit list for each category, by following the judgments of the Honourable Apex Court in R.K.Sabharwal's case and Satya Prakash's case (cited supra).
In the result,
(i)Rule 16(2) of the Examination Rules issued by the Government of India for the Civil Services Examination, 2005, vide notification No.13018/8/2004 AIS (1) dated 4.12.2004, is declared as unconstitutional, being contrary to Articles 14, 16(4) and 335 of the Constitution and the same is thus, null and void in the eye of law. Consequently, the merit lists prepared by the Government of India and the Union Public Service Commission are also set aside.
(ii)The Government of India and the Union Public Service Commission are directed to proceed with the selection from the stage of announcement of results for all the 457 posts in 21 services notified in the Notification dated 4.12.2004 and re-work the allocation, de hors the impugned Rule 16(2), and treat the reserved candidates who got selected on their own merit and without availing the relaxed standards as unreserved candidates and fill the posts of 'reserved category' with the candidates, who availed the relaxed standards i.e. 66 SC, 32 ST, 117 OBC candidates, after preparing the merit list for each category, by following the judgments of the Honourable Apex Court in R.K.Sabharwal's case and Satya Prakash's case(cited supra)read with the 'Note' appended to the Notification dated 4.12.2004.
(iii) Considering the fact that the notification was issued on 4.12.2004, preliminary examination wadents to complete the entire above exercise within a period of 12 weeks from the date os conducted on 15.5.2005, the main examination was conducted on 21.10.2005 and interview was held on 7.4.2006 and the select lists were issued on 8.5.2006 and 3.4.2007 and thus a considerable delay has occurred in making the selection, we direct the official responf receipt of a copy of this order.
(iv)With this, the order of the Tribunal is set aside and all these writ petitions shall stand disposed of in the above terms. No costs. Consequently, connected Miscellaneous Petitions are closed.
Rao
To
The Registrar,
The Central Administrative Tribunal,
High Court Complex,
Chennai 600 104

Carrying F/w services- unfair

In the examination 2005 vacancies were 457. Out of 425 selected in the first list , only 402 were given services as per latest figure of DoPT web site. That means remaining 23 candidates(13 OBC, 04 General, 04 SC and 02 ST) were probably were rejected. DoPT can come out more clearly on this. Out of this 402, around 40 did not join services as they were already in better services from previous year examination or did not want to join. Now the figure comes to around 360. In the examination 2006 and 2007 it is known that around 30 more again got better services. Thus the remaining candidate would work out to roughly 325 for a post of 425.

In that event, if counseling is conducted by calling remaining candidates, then it will benefit each candidate irrespective of community. Year after year large number of vacancies go unfilled . If counseling is conducted in the pattern of Engineering admissions then, more serious candidates would attend it and get services. This would obviate the emergence of unfilled vacancies and also would improve transparency of the system besides promoting economy. The attention is drawn to a 1982 letter DoP&T OM No. 22011/2/79-Estt. (D) Dated 8^th Feb 1982, directs that:

“…..3. Normally, recruitment whether from the open market or through a Departmental Competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates. However, there is a likelihood of vacancies arising in future; in case, names of selected candidates are already available, there should either be no further recruitment till the available selected candidates are absorbed or the declared vacancies for next examination should take into account the number of persons already on the list of selected candidates awaiting appointment. Thus there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies , either by the method of direct recruitment or through a Departmental Competitive Examination….”

If counseling is allowed for allotting services, then more number of candidates can get selected from 2005 examination. The DoPT must also consider bringing back the system of waiting list as has been in practice till year 1993. It is a known fact that every year large number of vacancies go un-allotted and there is no concept of waiting list. The waiting list system has been arbitrarily done away with from 1994 onwards and as a the result large number vacancies get transferred to subsequent years for no mistake of candidates who actually competed for the examination. It also results in delayed filling up of vacancies. All this can be solved once counseling system is undertaken.

Quotes from Indra Sahwney judgment

Giving more preferred services to reserved candidates will not qualify to be termed as using reservation benefits. Para 58 of Indra Sahwney judgment makes it amply clear as mentioned below.

“58. The question arises whether clause (4) of Art. 16(4) is exhaustive of the topic or reservation in favour of backward classes. Before we answer this question, it is well to examine the meaning and content of expression ‘reservation’. Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are, “any provision for the reservation of appointments or posts” The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The Constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservation takes within its sweep all supplemental and ancillary provisions also lesser types of special provisions like exemptions, concessions and relaxations consistent no doubt with the requirement of maintenance of efficiency of administration- admonition of Art.335. The several concessions, exemptions and other measures issued by the Railway Administration and noted in Karmachari Sangh are instances of supplementary, incidental and ancillary provisions made with view to make the main provision of reservation effective i.e. to ensure that the members of the reserved class “fully avail of the provision of reservation in their favor”……. In our opinion, therefore, where the state finds it necessary- for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary “provision to ensure full availment of provision for reservation can be provided as part of concept of reservation itself”. Similarly, in a given situation the state may think that in the case of a particular Backward class it is not necessary to provide reservation of appointments/posts- and that it would be sufficient if a certain preference or concession is provided in their favour. This can be done under Clause (4) itself

58. It is, however, made it clear that the rule of 50% shall be applicable to reservations proper; they shall not be- indeed cannot be applicable to exemptions, concessions, relaxations, if any, provided to Backward class of citizens under Art. 16(4).”

Quotes from R.K.Sabharwal Case

No reserved candidates who got selected on their own merit can not be taken into consideration for working out the percentage of reservation. While services can be availed from OBC quota but for calculation of percentage of reservation they deemed to have been counted as general candidates. To quote from . In R.K.Sabharwal And Others Vs. State Of Punjab And Others [(1995) 29 Administrative Tribunals Cases 481], a Constitutional Bench of the Honourable Supreme Court has held:

“4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation...... When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats...."

It is the law of the land as declared by a constitutional bench of Supreme court in RK Sabharwal case.

“6. The expressions “posts” and “vacancies” often used in the executive instructions providing for reservations, are rather problematical. The word “post” means an appointment, job, office or employment. A position to which a person is appointed. “Vacancy” means an occupied post or office. The plain meaning of two expressions make it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur. The cadre-strength is always measured by the number of posts comprising the cadre*. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of ‘vacancy’ has no relevance in operating the percentage of reservation.”

Each service has a cut off is a myth

The claim that each service has a cut off is a myth. If the first choice of service of majority candidate is IRS then we would find that IAS cut off will be lower to IRS cut off.

In a multi service examination opting for a service is akin to opting to a preferred college as in Ritesh R Shah case. OBCs were given the option of choosing higher services available in reserved quota to avoid emergence of an anomalous situation . Thus, anomalous situation is avoided at a considerable cost. The cost being that had the OBC list consisted only those who came in relaxed standards , a candidate there would have got IAS. Now he foregoes his IAS in favour of a OBC candidate who came from general to avoid anomalous situation. It is expected that former candidate will be compensated for the sacrifice he is making by foregoing IAS. But the present case on hand did not provide for such eventuality. The situation would have been solved had the ratio of Anurag Patel case has been applied.

. Moreover, if all 734 services were IAS then there would be 76 OBCs in general in adition to 27% OBCs in quota. The very convenience of combining 21 services can not be a basis to undermine the constitutional provisions and the law of the land on reservation. The claim that status whether he claimed relaxation will be known only at the time of service allocation is incorrect to say so. Because relaxed standards apply to examination as per following letter of DoPT, DoP&T OM No. 36011/1/98-Estt. (Res.) dated 01.07.1998, a reference is made to what is relaxed standards. To quote

“….. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age limit, experience qualification, permitted number of chances in written examination……” .

Thus extending the definition of relaxed standards to cover service allocation which is just a methodology will amount to violating their own letter. Service allocation is just a methodology as happened in choosing higher preferred colleges in Ritesh R Shah case, and is only done to obviate the anomalous situation of higher OBCs getting lower services. More over the question of service allocation stands resolved by Anurag Patel case which is just a delineation of Ritesh R Shah case. Here a set of 96 candidates are availing services not in a free environment but these services are tied under OBC quota and thus it is expected that lesser services which are under general would go to OBC quota candidates but not to some other General candidates . The entire issue revolves around settlement of services within OBCs and in this process it should not unduly benefit general candidates. If, hypothetically Merit listed OBCs would get lower services than quota OBCs then it would never arise that 96 general candidates would get selection. A situation which seeks to avoid anomalous situation can not be used discreetly

Quotes from Anurag patel Case

Case Details:

In Anurag Patel Vs Uttar Pradesh Sate Public Service commission(2005 9 SCC 742), the Apex court was approached by OBC candidates who got selection in general. Two of them who has secured rank 13 and 14 in the merit list, were appointed as Sales Tax Officer-II, whereas the persons who secured rank Nos. 38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors. This anomaly was corrected by the court which ordered to prepare a list combining OBCs and OBCs who came in general as per rank and person higher in rank will get service of his choice. If this case is applied, then there will be 190 OBCs plus 76 OBCs who came in merit. A combined list of 266 needs to be prepared and services originally available to them earlier against their rank be redistributed so that higher ranked candidate will get higher preferred service. This was done in the results declared on 16th May 2008 due to the verdict of Mardas High Court.

The Anurag Patel verdict says,

"... list of all selected Backward candidates shall be prepared separately including those candidates selected in the general category and their appointments to the posts shall be strictly in accordance with the merit as per the select list and preference of person higher in the select list will be seen first and appointment given accordingly, while preference of 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”

By this there will be no change in the total number of services available to this category. The logic behind this methodology is that when it comes to service allocation, OBC candidates who obtained higher ranking in unreserved category should not be put to a disadvantage in comparison to those OBC’s who come by relaxed standards. At the same time, it will not be detrimental to the interests of reserved candidates who could have got selection but were not. This is the only way by which the community wise representation will not be altered. This methodology does not alter or affect other community’s share in selection and allotment. Had this methodology been followed, 266 OBC candidates and 129 SC would have been selected against their present number of 190 OBC and 109 SC. It would also ensure that slots vacated by reserved candidates from general would only go to some other reserved candidates.

Instead of taking cognizance of Anurag Patel verdict, the authorities take stand that this verdict cannot be applied in Civil Service Examination. The Combined State Services/Upper Subordinate Services Examination conducted by UPPSC is similar to Civil Services Examination conducted by UPSC in which several services, like UP Civil (Executive) Service (for Dy. Collector Posts), UP Police Service (for DSP posts), UP Finance & Accounts Service(for Treasury Officer/Accounts Officer Posts) etc. participate each year. The pattern of Combined State Services Examination conducted by UPPSC is also similar to Civil Services Examination conducted by UPSC. The process of selection in the above said examination conducted by UPPSC is also done in three stages, viz, preliminary examination, mains examination and the personality test/interview, as is done for Civil Services Examination conducted by UPSC. Hence their stand does not seem to be valid

Quotes from Satyaprakash Case

“18.By way of illustration, if 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, he may opt for his preference from the reserved category, but simply because he opted for a preference from the reserved category, he does not come within the quota of OBC category candidates 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…

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 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 category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to relaxed standard.”

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“The respondents thus, have given effect only to a part of decision of the Apex court in Ritesh R. Sah’s case (Supra) while ignoring the second part thereof. The Apex Court clearly held that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted as against the quota of the Scheduled Castes or Scheduled Tribes or any other reserved category since the same would be against the constitutional mandate of Article 16 (4) of the Constitution of India”. Again it will be opt to recall the Ritesh R Sah judgment which says at Para 13 of Judgment that “There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16(4)”.

The ratio of Satyapraksh judgment is based on Ritesh R Sah case which in turn allows higher preferred college to preferred service OBCs. Thus the claim of DOPT and UPSC is incorrect. DOPT perhaps took recourse to observations made by High court which is in reference to an argument that slots vacated by OBCs from general category were given to lesser meritorious OBC candidates.

Rule 16(2) was amended to do away with the judgment of the High court of Delhi in the Satyaprakash case. The claim that Rule 16(2) is in conformity is totally misleading. While the first part of Ritesh R Sah case i.e it should not work to the disadvantage of higher ranked candidates, has been taken care of, the later part that percentage of reservation be counted as general has been neglected or thwarted.

The claim that Satyaprakash case does not pertain to the present case is misleading . In fact amendment of Rule 16(2) has been done to overcome the judgement of the Delhi High Court in Satyaprakash case. The principle laid down therein is of universal application. The Hon’ble High Court is therefore justified in declaring Rule 16(2) as null and void. Rule 16(2) instead of solving the issue of service allocation, is narrow in its approach as well as violative of the 2^nd part of Ritesh R Sah judgment which is the law of the land.

To quote from Satyapraksh case ,

“ 9. In our view, the present controversy is no more 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 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.’

In Union of India vs 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 reserved 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 category candidates. ”

“The respondents thus, have given effect only to a part of decision of the Apex court in Ritesh R. Sah’s case (Supra) while ignoring the second part thereof. The Apex Court clearly held that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted as against the quota of the Scheduled Castes or Scheduled Tribes or any other reserved category since the same would be against the constitutional mandate of Article 16 (4) of the Constitution of India”. Again it will be opt to recall the Ritesh R Sah judgment which says at Para 13 of Judgment that “There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16(4)”.

Satyapraksh case is appllicable in the present case. rule 16(2) was amended to frustrate the Delhi High Court’s order in Satyapraksh case. Even during un-amended rule 16(2), the DoPT provided preferred service allocation to reserved candidates who came in open merit in general standards. There was no need for amending the rule as far as service allocation was concerned. But the number of selection during that time were correct as the selections from reserved candidates came to quota plus that many who came in Open merit. But, later equal number of reserved candidates who came last say 96 places were excluded. One such candidate was Mr.Satyapraksh. But after amendment, in the initial stage itself the number of selections were shrunk to make it within the ceiling of respective quota. The comparison would be in order.

Reservation for general in Civil Services Exam

This year last general rank is 511 and the score is 1221. Last OBC is 540 and the score is 1215.

A difference of only 6 marks. Not COnsidering PH candidates


When the supplementary list known as consolidated reserve list of 192 will be operated for 96 vacancies, then

going by the past experience we can safely assume that around 80 TO 90 general candidates will be selected.

In that event , the cut off mark of general will be around 1205[. Assuming 5 candidates per mark.

Now there are roughly 5 candidates for 1 mark for all communities.

Assumption 1:

80 General Candidates and 12 OBC

For General candidates 80 candidates divided by 5 = 16 marks..

cutoff 1221-16= 1205

For OBC candidates 12 candidates divided by 5 = 2.4 marks.(r/o to 3)

Cutoff 1215-3=1212

This way we will find cut off for OBC is 1212 and general is 1205 when the supplementary list will be announced.


Past experinece
General candidates in 2nd list 2002 2003 2004 2005 2006 2007
Kept waiting--------------------------24------44-----31------32----58-------96

Actual Selection----------------------21-------35-----22------27--- **-------**

What is rule 16(2)?

The said Rule reads as follows :-

“16(2) While making service allocation, the candidates belonging to the SC, ST or OBC recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government if by this process they get a service of higher choice in the order of their preference.”

The effect of this Rule is that even if an OBC candidate gets selected on his own merit and he is placed among the general category candidates, if he/she is given preferred service of his/her choice which were otherwise kept reserved for reserved candidates then, notwithstanding the fact that he/she has been selected on merit, he ceases to be treated as general category candidate but will be treated as a reserved category candidate and thereby equivalent number of reserved category candidates, who are entitled to be selected by virtue of the reservation policy, do not get selected.

Chennai Bench of Central Administrative Tribunal held Rule 16(2) was declared conditionally valid so long it adhered to this Hon’ble Court’s verdict in Anurag Patil case 2005 (9) SCC 742 . The Tribunal also directed preparation of the results afresh and in one go for all 457 seats for 2005 Exam.

On appeal by the government , the Madras High Court went further and declared Rule 16(2) void. It also ordered re-working results and in one go. The end result of both the verdicts are the same.

In the counter before the Tribunal(CAT) the UPSC categorically accepted that there were 31 OBC candidates and 1 SC candidate who came on merit and not by relaxed standards in CSE 2005 exam. These 31 candidates ought to have been reckoned as General Category candidates but instead were counted against the quota reserved for OBCs and SCs. Had they been considered as General Category candidates, as enunciated in Ritesh R Sah case, then 31 more OBC candidates would get selected .

UPTO YEAR 2001 EXAM(old Rule)	FROM YEAR 2002 EXAM(New Rule 16(2))	COMPARISON
OBCs who came in merit say X were given preferred service available from reserved OBC quota even under old rule 16(2)	Here also OBCs who came in merit were given preferred service available from reserved OBC quota under new rule 16(2)	Same .No need for new rule 16(2)
Vertical upgradation of remaining general candidates in open merit	Here also vertical upgradation of remaining general candidates	Same
Equal number of vacancies say ‘X’ remained vacant in the bottom of Open merit. It went unfilled.	Selection of additional General candidates equal to say X happened who occupied bottom of general list.	Additional selection of General .
Equal number of OBC candidates say X who came in bottom of OBC quota list were refused any service. Thus regret letters were sent to them	That many number of OBCs say X were never selected.	Under selection of OBCs by UPSC in the later case.
The name of the list was known as Open merit or unreserved	Nomenclature is kept as General. Thus Open merit/Unreserved list was not prepared.	Change of nomenclature required.

“The negative effect of the impugned Rule 16(2) on the reserved category candidates, who availed the relaxed standards has not been taken care of by DOPT and it is unable to find any rationale behind the release of two lists containing 638 and 96 candidates respectively..”

Rule 16(2) provides for movement of meritorious OBC candidates only at the time of allocation of services. UPSC had no mandate to shrink the selection list of OBCs and expand the selection list of General at the time of announcement of result. The Hon’ble tribunal (CAT Chennai) pointed out this aspect when it commented that rule 16(2) can be sustained as legal to the extent its scope is limited to service allocation and not during recruitment stage by UPSC. It added “Therefore while announcing results of the examination by the UPSC prior to making of service allocation, the twin yardstick of percentage of reservation of 15%, 7.5% and 27% for SC, ST and OBC respectively supported by criterion of reserved candidates coming on merit being treated as general candidates, has to be met …and the respondents failed to do so. To this extent, the recruitment is not proper and has to be set aside”

Though the intention of Rule 16(2) is laudable , it may be recalled that even when this Rule was not there during pre 2002 era, the same objective of begetting preferred service was achieved. Thus, in isolation it appears that Rule 16(2) is an enabling provision as for as choice of service is concerned but it is a disabling provision as for as quota percentage is concerned, because it diminishes selection of equal number of reserved category candidates.