Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8499 OF 2012

(Arising out of SLP(Civil) No.31979/2010)

ALOK KUMAR PANDIT ...Appellant

VERSUS

STATE OF ASSAM & ORS. ...Respondent(s)

O R D E R

1. Leave granted.

2. The questions which arise for consideration in

this appeal filed against the order of the Division Bench of

the Guwahati High Court dismissing the writ petition filed

by the appellant for quashing the selection made by the

Assam Public Service Commission (for short, ‘he Commission’)

are whether a candidate of reserved category, who is

adjudged more meritorious than open/general category

candidates, is entitled to be appointed in the

service/cadre/post of his choice/preference against the post

earmarked for the reserved category to which he belongs and

whether while computing the quota/percentage of reservation,

such candidate should be treated to have been allotted a

post in the open category.

3. On a requisition received from the State

Government, the Commission issued advertisement No.6/2006

dated 10.8.2006 for 116 posts of Assam Civil Service Class-I

(Junior Grade), Assam Police Service (Junior Grade), Labour

Officer, Assistant Registrar of Cooperative Societies,

Page 2 2

Inspector of Labour, Inspector of Taxes and Inspector of

Excise. These included 11 backlog posts of reserved

categories of Scheduled Castes, Scheduled Tribes (P) and

Scheduled Tribes (H). The appellant, who belongs to OBC

applied for recruitment against the advertised posts. After

clearing the preliminary and final examination, the

appellant was called for interview. The list of selected

candidates was published by the Commission on 15.6.2009.

4. As the appellant’s name did not figure in the merit

list, he submitted an application under the Right to

Information Act, 2005 for supply of the details of marks

awarded to him in various papers and interview. Vide reply

dated 16.7.2009, the Commission informed the appellant that

he had secured 840 marks (669 in the main examination and

141 in the interview). The appellant then filed Writ

Petition No.3590/2009 for quashing the entire selection and

for issue of a mandamus to the Commission to prepare fresh

select list in accordance with the recruitment rules and the

reservation policy framed by the State Government. Some

other unsuccessful candidates also filed writ petitions

questioning the selection made by the Commission. The

Division Bench of the High Court disposed of all the

petitions by common order dated 1.9.2009 and directed the

Commission to prepare fresh select list.

5. In compliance of the direction given by the High

Court, the Commission prepared fresh select list which was

notified on 18.2.2010. The appellant’s name did not find

place even in the fresh list. He, therefore, filed Writ

Page 3 3

Petition No.1040/2010 and prayed for issue of a mandamus to

the Commission to again revise the select list by contending

that more meritorious candidates of the reserved category of

OBC who should have been adjusted against the open category

posts were illegally appointed against the posts earmarked

for the OBC. He pleaded that the Commission committed

serious error by allotting the posts in Assam Civil Service

to OBC candidates who, keeping in view their overall merit,

should have been appointed against the open category posts

and, in any case, for the purpose of computing quota of

reservation for OBC, such appointments should be treated as

having been made against open category posts.

6. The Division Bench of the High Court considered

the case of one Manjit Barkakoti, who had secured 952 marks

and was placed at Sl.No.25 in the overall merit, but could

not be appointed to the Assam Civil Service against the open

category post because his marks were less than other open

category candidates and held that no illegality was

committed by appointing him to that service against the post

earmarked for the reserved category. The Division Bench

further held that appointment of the candidates of the

reserved category, who were adjudged more meritorious than

some of the open category candidates against the posts

earmarked for the particular reserved category did not

result in usurpation of the quota earmarked for that

category. All this is evinced from the following portions

of the impugned order:

“5. The contention advanced by the petitioner that

Page 4 4

Manjit Barkakoti being at Sl. No.25 of the over

all merit list should be treated was a general

category candidate has dangerous portents with the

law cannot countenance. If Manjit Barkakoti is to

be treated as a general category candidate, he

will not make it to the Assam Civil Service even

with lesser marks will qualify as an OBC candidate

for the Assam Civil Service to the exclusion of a

more meritorious OBC candidates. Such a situation

cannot be allowed to prevail.

6. The perception of the petitioner is capable of

being analysed from another standpoint. According

to the petitioner, by treating such meritorious

candidates as reserved category candidates, the

actions of the Public Service Commission have

reduced the posts available for reserved category

candidates. The aforesaid perception of the

petitioner is not correct on facts. Along with a

general merit list, the Public Service Commission

has prepared separate select list for each of the

service for which advertisement was issued. The

number of posts available in each service and the

distribution thereof amongst the general

candidates and each of the reserved category

candidate is mentioned in the select list

published. 29 posts in all for all the different

services in question were available. A reading of

the select list for each service as prepared by

the Commission clearly indicates that 29 OBC

candidates have been appointed. If that be so, the

concept of usurping the quota for OBC candidates,

as sought to be so, the concept of usurping the

quota for OBC candidates, as sought to be urged,

will have no basis. Above all, it is not the case

of the petitioner that any OBC candidate securing

less than 840 marks (secured by the petitioner)

has been appointed in any service.”

7. Learned counsel for the appellant referred to the

provisions of the Assam Scheduled Castes and Scheduled

Tribes (Reservation of Vacancies in Services and Posts) Act,

1978, Assam Public Service Combined Competitive Examination

Rules, 1989 and office memo No.ARP-338/83/14 dated Dispur,

the 4

th

January, 1984 issued by the State Government and

argued that the reserved category candidates, who were more

meritorious than open category candidates, but were

appointed against the reserved category posts should be

Page 5 5

deemed to have been appointed against the posts earmarked

for the open category and they cannot be treated as

appointed against the posts earmarked for the reserved

category, which is constitutionally and legally

impermissible. He submitted that if migration is allowed to

more meritorious candidates of the reserved category, who,

as per their overall merit should be appointed against the

general category posts then the quota earmarked for reserved

category will be reduced and that would be clearly contrary

to the provisions of the rules framed under proviso to

Article 309 of the Constitution, the reservation policy

framed by the State Government and Articles 14 and 16 of the

Constitution.

8. Learned counsel for the State of Assam supported

the impugned order and argued that the view taken by the

High Court on the entitlement of more meritorious candidates

of reserved category to opt for the reserved category posts

is in consonance with the law laid down by this Court and

the appellant who is less meritorious reserved category

candidate cannot claim appointment to the State services

because that would amount to violation of the rights of

more meritorious candidates of his own category.

9. We have considered the argument/submission of the

learned counsel for the parties. In our view, the questions

framed in the opening paragraph of this order are no longer

res integra and must be answered in affirmative in view of

the judgments of this Court in State of Bihar v. M. Neethi

Chandra (1996) 6 SCC 36, Anurag Patel v. U.P. Public Service

Page 6 6

Commission (2005)9 SCC 742 and Union of India v. Ramesh Ram

(2010) 7 SCC 234.

10. However, before adverting to aforesaid judgments

we consider it proper to notice two other judgments in Indra

Sawhney v. Union of India 1992 Supp. (3) SCC 217 and

R.K.Sabharwal v. State of Punjab (1995) 2 SCC 745. In the

first of these cases, the nine Judges Bench considered the

constitutional validity of O.M.s dated 13.8.1990 and

25.9.1991 issued by the Government of India on the issue of

reservation of socially and educationally backward classes.

B.P.Jeevan Reddy, J., wrote the majority opinion on his own

behalf and on behalf of Chief Justice M.H. Kania and M.N.

Venkatachaliah and A.M. Ahmadi, JJ. S. Ratnavel Pandian,

T.K.Thommen, Kuldip Singh, P.B.Sawant and R.M.Sahai, JJ.,

wrote separate opinions. In his detailed judgment B.P.

Jeevan Reddy, J. answered several questions. In paragraph

811 of the judgment he made the following observations:

“811. 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.”

11. In the second case, the Constitution Bench held

that the State cannot count a reserved candidate selected in

the open category against the vacancies in the reserved

category.

12. If the proposition laid down in Indra Sawhney v.

Page 7 7

Union of India (supra) and R.K.Sabharwal v. State of Punjab

(supra) are considered in abstract, it may be possible to

say that once a reserved category candidate secures higher

merit than open category candidates, he can be considered

for appointment only against open category post and the

quota of the particular reserved category cannot be reduced

by treating his appointment as one made against the post

earmarked for the reserved category to which he belongs.

However, literal application of this proposition can lead to

serious anomaly and discrimination inasmuch as more

meritorious candidate of the particular reserved category

could be deprived of the service/cadre/post of his

choice/preference and less meritorious candidate of the

reserved category could get appointment on the post which

would otherwise be available to more meritorious candidate.

This can be illustrated by the following example: -

‘X’ and ‘Y’ are members of reserved category. They

compete for selection for recruitment to All-India

Services, which includes, IAS, IPS, IRS, etc. In

the merit list prepared by the Commission ‘X’ is

placed higher than some of the open category

candidates but on the basis of his overall inter

se merit with the open category candidates he

could get appointment only to IRS. ‘X’ can get the

post of his choice/preference i.e. IAS provided

his case is considered for appointment against the

posts earmarked for the particular reserved

category to which he belongs. If he is not

Page 8 8

allowed to do so, then why who is less meritorious

than ‘X’ within the reserved category will get

appointment to IAS against the reserved post. In

this manner ‘X’ will, despite his better merit

within the reserved category, stand discriminated

in the matter of appointment against the post for

which he had given his preference.

13. The anomaly of the type mentioned above was not

countenanced in Indra Sawhney v. Union of India (supra) and

R.K.Sabharwal v. State of Punjab (supra) and, therefore, the

Court did not have the occasion to deal with the same.

However, we are convinced that appointment of less

meritorious candidate of the reserved category against the

service/cadre/post of his choice and denial of such

appointment to more meritorious candidate of that category

would result in blatant violation of the doctrine of

equality enshrined in Articles 14 and 16 of the

Constitution.

14. In State of Bihar v. M. Neethi Chandra (supra),

this Court considered the question whether the candidates of

the reserved categories who had secured more marks than open

category candidates could be placed in a disadvantageous

position because they were allotted branches which were not

of their choice. If they were allotted branches as per their

merit among the reserved category candidates then they would

have got the branches of their choice. The writ petitions

filed by more meritorious candidates of the reserved

categories were disposed of by the High Court by directing

Page 9 9

that the seats should be first offered to the candidates of

reserved category on merit and once all the reserved seats

are filled, the remaining seats should be offered to the

general category. The High Court made a further arrangement

for the reserved category of girls, who could get seats on

merit on their own reservation as girls as well as on

reserved seats as scheduled casts/scheduled tribes etc. The

girls were to be considered first for admission against the

seats reserved for them. If any girl belonged to scheduled

casts/scheduled tribe, etc., she was to be given a choice of

one of the two reservations and the girls in excess of the

reserved vacancies could then seek admission on general

merit. While partly reversing the order of the High Court,

this Court observed:

“Let us take a situation in which in a particular

reserved category there are × number of seats but

the candidates qualifying according to criteria

fixed for that category are x+5 with the best

among them also qualifying on merit as general

candidates. According to the arrangement made by

Circular No. 20, the first candidate gets a choice

along with the general category candidate but be -

ing not high enough in the list, gets a choice

lesser than what he could secure in the reserved

category to which he was entitled. The × number of

seats could then be filled up with the four quali -

fying candidates being denied admission for want

of seats. This would have been harsh for the best

candidate as well as violative of Articles 14 and

16 of the Constitution. On the other hand, if the

direction of the High Court is followed, the first

× number of candidates get seats according to

merit against the reserved seats but the remaining

5 will also have to be ‘adjusted’ against the open

seats for regular candidates. These 5 will be

those who are not qualified according to the gen -

eral merit criteria and so will necessarily dis -

place 5 general candidates who would be entitled

to seats on merit.

Page 10 10

At the same time, as pointed out above, all is not

well with the Government Circular No. 20 as it op -

erates against the very candidates for whom the

protective discrimination is devised. The inten -

tion of Circular No. 20 is to give full benefit of

reservation to the candidates of the reserved cat -

egories. However, to the extent the meritorious

among them are denied the choice of college and

subject which they could secure under the rule of

reservation, the circular cannot be sustained. The

circular, therefore, can be given effect only if

the reserved category candidate qualifying on

merit with general candidates consents to being

considered as a general candidate on merit-cum-

choice basis for allotment of college/institution

and subject.”

(emphasis supplied)

15. In Anurag Patel v. U.P. Public Service Commission

(supra) this Court was called upon to consider whether more

meritorious candidates of reserved category who were

adjusted against the posts earmarked for general category

were not entitled to make a choice of the post earmarked for

reserved category. The facts as noticed by this Court were

that the 3rd respondent, i.e., Rajesh Kumar Chaurasia in CA

No. 4794 of 1998, who secured 76th place in the select list,

filed Civil Miscellaneous Writ Petition No. 46029 of 1993

before the High Court of Allahabad contending that he was

appointed as a Sales Tax Officer, although the appellant in

CA No. 4794 of 1998, i.e., Nanku Ram (Anurag Patel) who was

also a Backward Class candidate, was appointed as a Deputy

Collector, who according to the 3rd respondent, had secured

97th rank in the select list, a rank lower than him.

Similarly, 8 persons, all belonging to Backward Classes, who

find their names in the select list filed Writ Petition No.

22753 of 1993 alleging that they were entitled to get

postings in higher cadre of service as the persons who

Page 11 11

secured lower rank in the select list were given appointment

to higher posts. The first petitioner in the writ petition

i.e. Shri Rama Sanker Maurya and the 2nd petitioner i.e.

Shri Abdul Samad were at Serial Nos. 13 and 14 in the select

list. According to these petitioners, persons lower in rank

who got appointment in the reserved category were given

postings on the ground that those posts were earmarked for

being appointed in Class II services. After noticing the

judgments in Ritesh R. Sah v. Dr. Y. L. Yamul (1996) 3 SCC

253 and State of Bihar v. M. Neethi Chandra (supra), the

Court observed:

“In the instant case, as noticed earlier, out of 8

petitioners in Writ Petition No. 22753 of 1993,

two of them who had secured Ranks 13 and 14 in the

merit list, were appointed as Sales Tax Officer

II, whereas the persons who secured Ranks 38, 72

and 97, ranks lower to them, got appointment as

Deputy Collectors and the Division Bench of the

High Court held that it is a clear injustice to

the persons who are more meritorious and directed

that a list of all selected Backward Class candid -

ates shall be prepared separately including those

candidates selected in the general category and

their appointments to the posts shall be made

strictly in accordance with merit as per the se -

lect list and preference of a person higher in the

select list will be seen first and appointment

given accordingly, while preference of a person

lower in the list will be seen only later.”

16. A somewhat similar question came up before the

three Judge Bench in Union of India v. Ramesh Ram (2009) 6

SCC 619. Some candidates belonging to OBC had filed an

application before Madras Bench of the Central

Administrative Tribunal challenging Rule 16(2) of the Civil

Services Examination Rules, 2005. They pleaded that

adjustment of more meritorious OBC candidates against the

Page 12 12

OBC quota was illegal. According to them, such candidate

should be adjusted against the unreserved/general category

posts and allow more OBC candidates, who were lower in rank,

to be recommended for the posts earmarked for that category.

The Tribunal held that the OBC candidates who were selected

on merit must be adjusted against the general category

posts. It further held that in terms of the judgment of

this Court in Anuraj Patel vs. U.P. Public Service

Commission (supra), the allocation of service should be in

accordance with rank-cum-preference with priority given to

meritorious candidates. The three Judge Bench noticed the

judgments in Ritesh R. Sah v. Dr. Y.L. Yamul (supra), Anurag

Patel v. U.P. Public Service Commission (supra) and R. K.

Sabharwal v. State of Punjab (supra) and referred the matter

to the Constitution Bench.

17. When the matter was placed before the Constitution

Bench (the judgment of the Constitution Bench is reported as

Union of India v. Ramesh Ram (2010) 7 SCC 234), the

following question was framed:

“Whether candidates belonging to reserved cat -

egory, who get recommended against general/unre -

served vacancies on account of their merit

(without the benefit of any

relaxation/concession), can opt for a higher

choice of service earmarked for reserved category

and thereby migrate to reserved category .”

18. The Constitution Bench referred to the rules, the

judgments of this Court in Union of India v. Satya Prakash

(2006) 4 SCC 550, Ritesh R. Sah v. Dr. Y.L. Yamul (supra),

State of Bihar v. M. Neethi Chandra (supra), Indra Sawhney

Page 13 13

v. Union of India (supra), M. Nagaraj v. Union of India

(2006) 8 SCC 212, Anurag Patel v. U.P. Public Service

Commission (supra) and observed:

“The decision in Anurag Patel rectified the anom -

aly which had occurred since U.P. PSC had allotted

services of lower preference to the candidates of

Backward Classes who were meritorious enough to

qualify as per the criteria laid down for general

category candidates. Such meritorious candidates

were disadvantaged on account of qualifying on

merit which was patently offensive to the prin -

ciples outlined in Articles 14 and 16 of the Con -

stitution. This Court had reached such conclusion

to ensure that allocation of service is in accord -

ance with the rank-cum-preference basis with pri -

ority given to meritorious candidates for service

allocation.

The decision in Anurag Patel in turn referred to

the earlier decision in Ritesh R. Sah v. Dr. Y.L.

Yamul. However, we have already distinguished the

judgment in Ritesh R. Sah. That decision was given

in relation to reservation for admission to post -

graduate medical courses and the same cannot be

readily applied in the present circumstances where

we are dealing with the examinations conducted by

UPSC. The ultimate aim of civil services aspirants

is to qualify for the most coveted services and

each of the services have quotas for reserved

classes, the benefits of which are availed by MRC

candidates for preferred service. As highlighted

earlier, the benefit accrued by different candid -

ates who secure admission in a particular educa -

tional institution is of a homogeneous nature.

However, the benefits accruing from successfully

qualifying in UPSC examination are of a varying

nature since some services are coveted more than

others.”

(emphasis supplied)

19. The Constitution Bench noticed the judgment in

R.K. Sabharwal v. State of Punjab (supra) and distinguished

the same by making the following observation:

“Reference was also made to R.K. Sabharwal v.

State of Punjab, this Court had declared that the

Page 14 14

State shall not count a reserved category candid -

ate selected in the open category against the va -

cancies in the reserved category. However, by this

it could not be inferred that if the candidate

himself wishes to avail a vacancy in the reserved

category, he shall be prohibited from doing so.

After considering the counsel's submissions and

deliberations among ourselves, we are of the view

that the ratio in that case is not applicable for

the purpose of the present case. That case was

primarily concerned with the Punjab Service of En -

gineers in the Irrigation Department of the State

of Punjab. The decision was rendered in the con -

text of the posts earmarked for the Scheduled

Castes/Scheduled Tribes and Backward Classes on

the roster. It was noted that once such posts are

filled the reservation is complete. Roster cannot

operate any further and it should be stopped. Any

post falling vacant in a cadre thereafter, is to

be filled from the category reserved or general

due to retirement or removal of a person belonging

to the respective category. Unlike the examina -

tions conducted by UPSC which includes 21 differ -

ent services this case pertains to a single ser -

vice and therefore the same cannot be compared

with the examination conducted by UPSC. The exam -

ination conducted by UPSC is very prestigious and

the topmost services of this nation are included

in this examination. In this respect, it is obvi -

ous that there is fierce competition amongst the

successful candidates as well to secure appoint -

ments in the most preferred services. This judg -

ment is strictly confined to the enabling provi -

sion of Article 16(4) of the Constitution under

which the State Government has the sole power to

decide whether there is a requirement for reserva -

tions in favour of the backward class in the ser -

vices under the State Government. However, the

present case deals with positions in the various

civil services under the Union Government that are

filled through the examination process conducted

by UPSC. Therefore, the fact-situation in R.K.

Sabharwal case is clearly distinguishable.

20. In view of the above discussion and the law laid

down in State of Bihar v. M. Neethi Chandra (supra), Anurag

Patel v. U.P. Public Service Commission (supra), which has

been approved by the Constitution Bench in Union of India v.

Ramesh Ram, we hold that the official respondents did not

commit any illegality by appointing more meritorious

Page 15 15

candidates of OBC to Assam Civil Service for which they had

given preference and the High Court did not commit any error

by dismissing the writ petition.

21. As a sequel to the above, the questions framed in

this appeal are answered in the following terms:

“ 1) A reserved category candidate who is adjudged

more meritorious than open category candidates is

entitled to choose the particular

service/cadre/post as per his choice/preference

and he cannot be compelled to accept appointment

to an inferior post leaving the more important

service/cadre/post in the reserved category for

less meritorious candidate of that category.

2) On his appointment to the service/cadre/post of

his choice/preference, the reserved category

candidate cannot be treated as appointed against

the open category post.”

22. In the result the appeal is dismissed. The parties

are left to bear their own costs.

..................J.

[G.S. SINGHVI]

NEW DELHI; .................J.

NOVEMBER 26, 2012 [GYAN SUDHA MISRA]