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.”

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

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.