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.