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CASE NO.: Appeal (civil)  5505-5507 of 2003

PETITIONER: Union of India & Anr

RESPONDENT: Satya Prakash & Ors

DATE OF JUDGMENT: 05/04/2006

BENCH: H.K. Sema & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T With Civil Appeal No. 7004 of 2003

H.K.SEMA,J

       These appeals have been preferred by the Union of India  aggrieved by the judgment and orders dated 10.9.2002 (in  Civil Appeal Nos. 5505-07/2003) and 29.4.2003 (in Civil  Appeal No. 7004/2003) of the Division Bench of the High  Court of Delhi in Civil Writ Petition Nos. 3561/99, 3562/99,  867/2000 and 2751/2000 respectively.  For brevity, we are  taking facts from Civil Appeal No. 5505 of 2003.  The  respondent belongs to Other Backward Class (OBC).   Reservations were made for Scheduled Castes, Scheduled  Tribes and OBC category candidates in Civil Services  Examination (CSE) Rules, 1996.  The respondent appeared  from the reserved quota of OBC.  The Union Public Service  Commission (Commission) recommended in all 739  candidates, out of which 2 candidates were withheld and 737  candidates were recommended one to one for appointment  against the vacant posts from various categories.           The following chart would make clear the manner in   which the different categories of jobs were to be allocated to  different categories of candidates.  

Category/Cadre

IAS IFS IPS Gr.A Gr.B Total General 38 07 48 157 133 383 OBC 20 03 25 72 54 174

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SC 12 03 15 56 39 125 ST 06 01 08 23 19 57 Total 76 14 96 308 245 739

       The chart shows that against the OBC category total 174  candidates were recommended for 174 vacancies.  In these  appeals we are concerned only with OBC category candidates.   From the OBC category, three candidates were included in the  general merit list.  36 OBC category candidates were also  included in the general merit list on the recommendation of  the Commission.  However, a preference was given from the  relaxed quota, reserved for the OBC category candidates.   Despite 174 vacancies earmarked for the OBC category  candidates, and the candidates were recommended for 174  vacancies, only 138 OBC category candidates were provided  with the job and the rest 36 OBC category candidates  (respondents) had been denied job.  By way of illustration, a  candidate whose name figured at Sl. No. 620 in the merit list  had been provided with a job but the respondent herein, who  was at Sl. No. 606 in the merit list had been denied the job.          We have heard Mr. T.S. Doabia, learned Senior counsel  for the Union of India, Mr. L. Nageswar Rao, Sr. Adv. Mr.  Ranjit Kumar, Sr. Adv.  and Mr. Gopal Prasad, learned  counsel for the respondents.           The principal contention of Mr. T.S. Doabia is that since  there were only 174 vacancies in the OBC category in various  services and posts, certain candidates belonging to that  category and recommended by the Commission for  appointment against the vacancies for OBC category  candidates in services/posts could not be allocated to any  services/posts due to lack of vacancies.   It is his further  contention that the quota reserved for the OBC from the  relaxed standard exhausted due to the preference opted by the  OBC candidates who were recommended by the Commission  from open category i.e. on merit.            Per contra, it is contended by Mr. Nageswar Rao, Ranjit  Kumar and Gopal Prasad that such submission is contrary to  the note appended to Rule 2 of the Civil Services Examination  Rules 1996 (in short the Rules) which says that 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 a  service/post in accordance with their preferences.         It is their further contention that the stand taken by the  Union of India also runs to the teeth of the proviso to sub-Rule

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2 of Rule 16 of the Rules which says that the candidates   belonging to the Scheduled Castes, the Scheduled Tribes or  the Other Backward Classes who have been recommended by  the Commission without resorting to the relaxed standard,  referred to in the Rules, shall not be adjusted against the  vacancies reserved for the Scheduled Castes, the Scheduled  Tribes  and the Other backward classes.  They further  contended that the reserved category candidate entitled to  service/post on the basis of his/her own merit  in the general  category will have the option of his preference kept reserved  for the reserved category but while computing the percentage  of reservation, he/she will be deemed to have been computed  as an open category candidate (general candidate) and not as a  reserved category candidate.           The sole question that revolves around for determination  is, as to whether those 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 from allocation of  service.           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 the case of R.K. Sabharwal v. State of Punjab  (1995) 2 SCC 745, a Constitution Bench of this Court  considered the question of appointment and promotion and  roster points vis-‘-vis reservation and held at SCC p. 750,  para 4 as under:         "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 reserved 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- reserve 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. Article 16 (4) of the  Constitution of India permits the State Government  to make any provision for the reservation of  appointments or posts in favour of any Backward  Class of citizens which, in the opinion of the State if  not adequately represented in the Services under  the State. It is, therefore, incumbent on the State  Government to reach a conclusion that the  Backward Class/Classes for which the reservation  is made is not adequately represented in the State  Services. While doing so the State Government may  take the total population of a particular Backward  Class and its representation in the State Services.  When the State Government after doing the

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necessary exercise make 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. As  mentioned above the roster point which is reserved  for a Backward Class has to be filled by way of  appointment/promotion of the member of the said  class. No general category candidate can be  appointed against a slot in the roster which is  reserved for the Backward Class. The fact that  considerable number of members of a Backward  Class have been appointed/promoted against  general seats in the State Services may be a relevant  factor for the State Government to review the  question of continuing reservation for the said class  but so long as the instructions/rules providing  certain percentage of reservations for the Backward  Classes are operative the same have to be followed.  Despite any number of appointees/promotees  belonging to the Backward Classes against the  general category posts the given percentage has to  be provided in addition."

       In Union of India v. 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.           This Court in Ritesh R. Sah v. Dr. Y.L. Yamul & Ors.  (1996) 3 SCC 253 after considering the various decisions of  this Court, as referred to above, has come to the conclusion at  SCC p.261-262 as under: "In view of the legal position enunciated by this  Court in the aforesaid cases the conclusion is  irresistible that a student who is en-titled 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

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as an open category candidate and not as a reserved  category candidate."                                                 (emphasis supplied)

       It will be noticed that the decision in Ritesh R. Sah  (supra) was rendered on 15th February, 1996.  CSE Rules,  1996 were notified on 14.12.1996.  That is the fall out of the  decision of this Court in Ritesh R. Sah (supra).         The relevant rules for our consideration for this purpose  are Rule 2 and Rule 16 of the Rules.  Rule 2 and Rule 16 read  as under: "2. A candidate shall be required to indicate in  his/her application form for the Main Examination  his/her order of preferences for various  services/posts for which he/she would like to be  considered for appointment in case he/she is  recommended for appointment by Union Public  Commission.  

A candidate who wishes to be considered for  IAS/IPS shall be required to indicate in his/her  application if he/she would like to be considered for  allotment to the State to which he/she belongs in  case he/she is appointed to the IAS/IPS.  

NOTE: - The candidate is advised to be very careful  while indicating preferences for various  services/posts.  In this connection, attention is also  invited to Rule 18 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  service/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 a service/post in accordance with their  preferences.   

                                               (emphasis supplied)

16.(i) After interview, the candidates will be  arranged by the commission in the order of merit as  disclosed by the aggregate marks finally awarded to  each candidate in the Main Examination (written  examination as well as interview) and in that order  so many candidates as are found by the  Commission to be qualified at the examination shall  be recommended for appointment up to the number  of unreserved vacancies decided to be filled on the  result of the examination.  

(ii) The candidates belonging to any of the  Scheduled Castes or the 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.  

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Provided that the candidates belonging to the  Scheduled Castes, 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, the Scheduled Tribes and  the Other Backward Classes.           (emphasis supplied)         Note appended to Rule 2 is crystal clear and  unambiguous.  It shows that If a candidate 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 a service/post in  accordance with their preferences.           Further, proviso to sub-Rule 2 of Rule 16 makes it  further clear in unambiguous terms that the candidates   belonging to the Scheduled Castes, the Scheduled Tribes or  the Other Backward Classes who have been recommended by  the Commission without resorting to the relaxed standard (i.e.  on merits), referred to in this sub-Rule, shall not be adjusted  against the vacancies reserved for the Scheduled Castes, the  Scheduled Tribes  and the Other backward classes.         This position has been made crystal clear in Ritesh R.  Sah (supra) as referred to above that while a reserved category  candidate entitled to admission on the basis of his merit, will  have the option (preference) of taking admission in the college  where 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.           By way of illustration, 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.  For that, he may opt a preference  from the reserved category.  But simply because he opted a  preference from the reserved category does not exhaust  quota  of OBC category candidate 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.  This is the mandate of  proviso to sub-Rule 2 of Rule 16.           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.           If a candidate of Scheduled Caste, 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 and in such  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

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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 the OBC category 174 candidates were recommended  against 174 posts.  By opting a preference, the quota reserved  for OBC candidate does not exhaust.  There are still vacancies  after allocation of all the candidates in 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.         At the risk of repetition, the Commission recommended  737 candidates against 737 posts.  So far OBC category is  concerned, 174 candidates were recommended against 174  posts.  We are totally at a loss as to what had happened to  those remaining services/posts after allocation of services to  all the candidates in terms of their preferences.  We say no  more.         In the view that we have taken, we do not see any  infirmity whatsoever in the orders impugned passed by the  High Court, which would warrant our interference.  These  appeals are devoid of merit and are dismissed with costs,  quantified at Rs. 10,000/- for each of the respondents.  The  appellant is directed to allot jobs to the respondents within a  period of one month from today.