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 2nd 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.
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