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.”