As per case facts, Haryana Public Service Commission (Appellant) issued advertisements for PGT (Maths) posts, involving a three-stage examination: Screening Test, Subject Knowledge Test, and Interview/Viva-Voce. The writ petitioner (Respondent) ...
IN THE HIGH COURT OF PUNJAB AND HARYANA
1. LPA No. 329 of 2024 (O&M)
Haryana Public Service Commission
Parmila and another
2. CWP No. 17188 of 2024
Sanjay Saini and others
State of Haryana
CORAM: HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON’BLE MS. JUSTICE KIRTI SINGH
Present:
SANJEEV PRAKASH SHARMA, J.
and CWP No. 17188 of
involved therein.
2.
Commission has
learned Single Judge has allowed the writ petition and directed
screening test
LPA No. 329 of 2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on : 19
Date of Pronouncement:
LPA No. 329 of 2024 (O&M)
Haryana Public Service Commission
Versus
Parmila and another
CWP No. 17188 of 2024 (O&M)
Sanjay Saini and others
Versus
State of Haryana and others
CORAM: HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON’BLE MS. JUSTICE KIRTI SINGH
Mr. Sanjay Kaushal, Senior Advocate
Mr. Kanwal Goyal, Advocate,
Mr. Arushi Dubey, Advocate and
Mr. Arjun Kaushal, Advocate, for the appellant
Mr. R. S. Dhull, Advocate and
Mr. Navnit Sharma, Advocate, for the petitioners
In CWP No. 17188 of 2024.
Mr. Vivek Salathia, Advocate, for respondent no.1
In LPA no. 329 of 2024.
Mr. Saurabh Mohanta, Deputy Advocate General, Haryana.
SANJEEV PRAKASH SHARMA, J.
This order will dispose of two cases i.e. LPA No. 329 of 2024
and CWP No. 17188 of 2024, as common questions of law and facts are
involved therein.
By way of present LPA No. 329 of 2024
Commission has assailed the judgment dated
learned Single Judge has allowed the writ petition and directed
screening test result and proceed with the
- 1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on : 19
th
February, 2025
Date of Pronouncement: 9th April, 2025
… Appellant
Versus
… Respondents
… Petitioners
Versus
…Respondents
CORAM: HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON’BLE MS. JUSTICE KIRTI SINGH
Advocate assisted by
Mr. Arushi Dubey, Advocate and
for the appellant/Commission.
Mr. Navnit Sharma, Advocate, for the petitioners
Vivek Salathia, Advocate, for respondent no.1
Mr. Saurabh Mohanta, Deputy Advocate General, Haryana.
two cases i.e. LPA No. 329 of 2024
2024, as common questions of law and facts are
LPA No. 329 of 2024, the appellant-
the judgment dated 08.01.2024 whereby the
learned Single Judge has allowed the writ petition and directed to revise the
and proceed with the process of selection for the
2025
2025
two cases i.e. LPA No. 329 of 2024
2024, as common questions of law and facts are
-
08.01.2024 whereby the
evise the
process of selection for the
LPA No. 329 of 2024 - 2 -
advertised posts in accordance with law without categorizing the candidates
till the final merit list is drawn.
3. CWP No. 17188 of 2024 has been filed for issuance of
direction to the respondents to re-conduct the examination after following
due process of reservation at all levels including at the level of screening test
and at the level of skill test. Further prayer is for directing the Commission
to re-conduct the interviews for the vacant posts lying in the Mewat cadre.
4. While issuing notice of motion, the operation and effect of the
judgment passed by the learned Single Judge was stayed, whereafter the
appellant has preferred CM No. 1282-LPA of 2025 placing the correct
judgment of the Single Bench before the Court. Writ petitioner/respondent
no.1 has moved application for vacation of stay. Considering the nature of
the case, we decided to hear the case finally and heard learned counsel for
the parties on merits.
5. Brief facts which need to be noticed before adverting to the
respective submissions are that Haryana Public Service Commission
(hereinafter to be referred as ‘the Commission’) issued an advertisement
no.29 of 2023 on 24.06.2023 inviting online applications from eligible
candidates for filling up of 250 posts of PGT (Maths) for rest of Haryana
cadre. Another advertisement no. 44 of 2023 was issued on the same date
inviting applications for filling up 65 posts of PGT (Maths) in Mewat cadre
alone. The scheme for examination consisting of three stages, (1) Screening
Test, as under:-
“i) Candidates four times the numbers of advertised posts,
including bracketed candidates, if any, category-wise, will be
called for the next stage of selection process, provided that they
LPA No. 329 of 2024 - 3 -
have secured the minimum cut-off marks of 25% in the
screening test.
j) In cases, where the total number of applicants is less or
nearly four times the number of advertised posts, the
Commission reserves its right to call the candidates directly for
the subject knowledge test.
k) The marks obtained by the candidates in the screening
test will not be counted for final selection because it is only for
short listing of category-wise candidates, for the subject
knowledge test.”
(2) The second stage is the Subject Knowledge Test, which provides as
under:-
“e) The numbers of the candidates to be called for interview
will be two times, including bracketed candidates, if any, of the
number of category-wise advertised posts provided that they
have secured the minimum cut-off marks of 35%.
f) The weightage of the subject knowledge test will be
87.5%.”
(3) The third stage is the Interview/ Viva-Voce, which provided as
under:-
“The weightage of the interview will be 12.5%.
The final merit list will be prepared by adding the marks of the
subject knowledge test and interview/viva-voce.”
The aforesaid conditions laid down in the advertisement were applicable to
all.
6. The writ petitioner set up the case that she was from BC (B)
Category and when the screening test result was declared, her roll number
was not figured in the list of BC(B) category. The candidates, who were
selected in the screening test category-wise, were called for subject
LPA No. 329 of 2024 - 4 -
knowledge test and thereafter, the result was declared. She, therefore,
claimed that though she has secured higher marks in screening test, which
were 41.85, she was not called for participating in the subject knowledge test
while the General Category candidates, who secured between 41.58 to 38.04
marks in the screening test were allowed to participate. She, therefore,
submitted that as she had secured more marks than those of General
Category/unreserved category candidates, she has a right to be considered
against General Category/ unreserved posts and the same cannot be denied
by not selecting her. The writ petitioner/ respondent, therefore, claimed
benefit of reservation claiming migration to General category at the stage of
screening test examination. The learned Single Judge has accepted the
contention and held, as above.
7. Learned counsel for the writ petitioner has placed reliance on
the judgments passed by the Supreme Court in Indra Sawhney vs Union of
India 1992 Suppl.(3) SCC 217; Andhra Pradesh Public Service
Commission vs Baloji Badhavath 2009 (5) SCC 1; Saurav Yadav vs State
of U.P. and others 2021 (4) SCC 542; and Deependra Yadav and others vs
State of Madhya Pradesh and others 2024 INSC 362, to contend that the
judgment passed by the learned Single Judge does not warrant interference
and submits that the present case is similar to that of Deependra Yadav’s
case (supra) wherein Hon’ble the Supreme Court after relying on Saurav
Yadav’s (supra), held as under:-
“31. In Saurav Yadav and others v. State of U.P. and others
(2021) 4 SCC 542 , a 3-Judge Bench of this Court affirmed the
principle that candidates belonging to any of the vertical
LPA No. 329 of 2024 - 5 -
reservation categories would be entitled to be selected in the
‘open category’ and if such candidates belonging to reservation
categories are entitled to be selected on the basis of their own
merit, their selection cannot be counted against the quota
reserved for the categories of vertical reservation that they
belong to. It was further observed that reservations, both
vertical and horizontal, are methods of ensuring representation
in public services and these are not to be seen as rigid ‘slots’,
where a candidate’s merit, which otherwise entitles him to be
shown in the open general category, is foreclosed. The Bench
further observed that the ‘open category’ is open to all and the
only condition for a candidate to be shown in it is merit,
regardless of whether reservation benefit of either type was
available to him or her.
32. This being the settled legal position, it appears that the
State of Madhya Pradesh itself realized the harm that it was
doing to the reservation category candidates and chose to
restore Rule 4, as it stood earlier, which enabled drawing up
the result of the preliminary examination by segregating
deserving meritorious reservation category candidates with
meritorious unreserved category candidates at the preliminary
examination stage itself. As this was the process that was
undertaken after the judgment in Kishor Choudhary (supra),
whereby a greater number of reservation category candidates
cleared the preliminary examination and were held eligible to
appear in the main examination, there can be no dispute with
the legality and validity of such process.
33. We may also note that the judgment in Kishor
Choudhary (supra) was not subjected to challenge before this
Court after the dismissal of the review petitions. The direction
therein was to conduct and complete the examination process in
accordance with the unamended Rules of the 2015. It was the
LPA No. 329 of 2024 - 6 -
later judgment in Harshit Jain (supra) that advocated the
methodology of holding a special main examination for the
reservation category candidates who were found eligible after
revising the preliminary examination result in keeping with the
unamended Rules of 2015. This direction was found to be
justified by the Division Bench, which dismissed the writ appeal
by way of the impugned judgment and, in our considered
opinion, rightly so.
34. On the above analysis, we find that the impugned
judgment dated 25.01.2023 passed by the Division Bench of the
High Court of Madhya Pradesh at Jabalpur in Writ Appeal No.
1706 of 2022 does not brook interference on any ground, be it
on facts or in law.”
8. Learned counsel submits that thus, even at the stage of
screening test, a candidate from reserved category will migrate to the open
category if he/ she has secured higher marks in the screening test and would
be considered under the open category and would be eligible to participate in
the subject knowledge test. He further submits that the learned Single Judge
has rightly held that denying a person from reserved category to be treated
over and above the open category candidate having lesser merit would result
in compromising the merit, which could not be the intention of the rule.
9. Learned counsel for the Commission has, however, relied on
the judgment passed by the Division Bench of this Court in CWP No. 3144
of 2019- Naveen Rao vs State of Haryana and others, decided on
11.02.2019, wherein candidates were not allowed to migrate to the open
category and it was held as under:-
“It is an admitted fact that the petitioner had only
qualified the preliminary examination which is a test meant for
LPA No. 329 of 2024 - 7 -
short-listing of the candidates to take the main written
examination and the marks obtained in the Preliminary
Examination are not to be counted towards the marks to be
obtained in the Main Written Examination. It is only a process
of short-listing of the candidates to be called upon for taking
the main written examination. Thus, the judgements relied upon
by the petitioner in the case of Bhupinder Kaur and others
(Supra) and Rajneesh Kumar (Supra) are distinguishable
because these judgements do not deal with the question
involved in the present case rather the judgments relied upon
by the respondents in the cases of Paramveer Singh and others
(Supra) and Deepak Kumar (Supra) are squarely on the issue
involved as in the case of Paramveer Singh and others (Supra)
the question, posed hereinabove, has been answered in favour
of the respondent against the petitioner holding that the
principle that the reserved category candidates who secured
higher merit in the process of selection for appointment are to
be considered for appointment against the general category
vacancies in spite of the fact that they have applied under the
reserved categories and the slot vacated by them has to be
given to the next candidate in the reserved category would
apply at the time of making appointment on the completion of
selection process and not at the stage of qualifying
examination/short-listing/screening test. The said judgement
i.e. Paramveer Singh and Others (Supra) has been followed in
the case of Deepak Kumar (Supra). Therefore, we do not find
any error on the part of the respondents in restricting the
candidates in their own category though they have secured
more marks than the general category candidates and were not
shifted to the General category, making a slot for the reserved
category candidates.”
10. Learned counsel for the Commission further relied on Division
Bench judgment of this Court in LPA No. 1053 of 2011 – Gur Jai Pal
LPA No. 329 of 2024 - 8 -
Singh vs Punjab Public Service Commission and another, decided on
08.09.2011, wherein it was held as under:-
“In view of the judgments referred to above, we find that the
policy of reservation for the purposes of short-listing of
candidates for the purpose of main examination is not
applicable, it being an eligibility test. Therefore, the action of
the Commission in not applying the principle of reservation at
the stage of preliminary examination cannot be said to be
illegal, arbitrary or unjust in any manner, which may warrant
any interference in appeal.”
11. Learned counsel for the Commission also relied on another
Division Bench judgment of this Court in Civil Writ Petition No. 6478 of
2024-Avinash Yadav vs HPSC and another, decided on 18.03.2024,
wherein the question which arose for consideration was as under:-
“9. Question sought to be agitated in this writ petition is as
to whether the concept of reservation applies to all stages of the
selection process leading to final recruitment or is to be applied
at the stage of filling up the vacancy at the time of making
appointment.”
12. Learned counsel for the Commission further relied on the
judgment passed by the Jabalpur Bench of Madhya Pradesh High Court in
WP No. 8750 of 2022 – Pushpendra Kumar Patel and others vs High
Court of M.P. and others, decided on 02.01.2023, observed as under:-
“15. The tenability of the right of reserved category candidate
to migrate at the stage of Preliminary Examination where merit
is not assessed, needs to be looked at from a different angle in
the following terms.
15.1 The concept of migration or mobility of a reserved
category candidate to unreserved category list is exclusively
LPA No. 329 of 2024 - 9 -
found on the concept of merit. It is an undeniable fact that
Preliminary Examination in question are meant to shortlist
larger number of candidates down to a manageable number to
be then subjected to Main Examination. Thus, the object and
purpose of Preliminary Examination is not to assess the
comparative merit of the candidates, but merely to
shortlist/screen them to be subjected to Main Examination
where alone comparative merit is assessed. The clauses of the
advertisement in question, as reproduced supra, expressly
reveal this intention of the Examining body. In none of these
petitions said clauses have been challenged. The Main
Examination is the one where comparative merit of candidates
is assessed and the select list prepared thereafter is the one
where right to migrate can be claimed by reserved category
candidates securing equal or more marks than the last
unreserved category qualified candidate.
15.2 The concept of migration which is purely merit centric
cannot be made available to be availed by reserved category
candidates at the stage of Preliminary Examination in which
comparative merit of the candidates is not assessed. The
migration therefore can be applied in the examination where
comparative merit is assessed which herein is not the
Preliminary Examination.
15.3. If right to migrate is permitted to be availed by reserved
category candidate at the stage of result of Preliminary
Examination then that would violate the very foundation on
which the concept of migration stands. If the argument of
learned counsel for the petitioners is accepted, then an
anomalous situation would arise where candidates who have
not been subjected to any comparative assessment on merit are
allowed to invoke the principle of migration which is found
solely on merit.
LPA No. 329 of 2024 - 10 -
16. In view of above discussion, what comes out loud and
clear is that merit centric concept of migration cannot be
invoked at the stage of Preliminary Examination in which
comparative merit of the candidates is not assessed/tested. In
the instant case, as prescribed in the terms and conditions of
advertisement in question, right to migration will certainly be
available to reserved category candidates on the declaration of
result of Main Examination and not at the declaration of
Preliminary Examination result.”
13. Learned counsel for the Commission has also pointed out that
similar consistent view has been taken by the High Court in Dharamveer
Tholia vs State of Rajasthan 2000 (3) WLC 399, following the judgment
passed by Hon’ble the Supreme Court in Chattar Singh vs State of
Rajasthan AIR 1997 SC 303. The same was reiterated in State of Rajasthan
vs Hanuman Jat 2017 (1) RLW 525.
14. Learned counsel for the Commission has also taken to this
Court to a Division Bench Judgment of Rajasthan High Court in Sunita
Meena vs Rajasthan High Court, Jodhpur thrugh its Registrar General
and others 2023 (1) SLR 119, wherein the similar view has been taken
holding that the rule of migration as laid down in Saurav Yadav’s case
(supra) would not have any applicability at the stage of preparation of list of
screening through preliminary examination.
15. We have carefully considered the submissions and the law as
cited at bar.
16. In Union of India vs Dalbir Singh AIR 2009 SC 2438, a
similar issue arose where the Government of India invited applications for
selection for the posts of Mazdoor in General and Reserved Categories.
LPA No. 329 of 2024 - 11 -
Those candidates, who participated were placed in two separate proceedings,
one for General Category candidates and another for reserved category
candidates. Several reserved category candidates secured more marks than
the General Category candidates but were placed only in reserved category.
Some of the said reserved category candidates, who have secured more
marks than the General category candidates, approached the Central
Administrative Tribunal, Chandigarh, seeking shifting to General Category
for further selection. The Tribunal allowed their application and this Court
also allowed the same. However, Hon’ble the Supreme Court set aside the
order and held as under:-
“10. From the pleadings, it appears to us, that the appellants
had prepared two sets of lists. The first one being the list of
those candidates who had staked their claim in the general
merit and the second list contains those candidates who had
opted for consideration of their case under OBC category. The
respondent at no point of time had taken exception to the
procedure adopted by the appellants in preparing the select list.
In our opinion, having opted to consider his case only under
OBC category, he cannot thereafter claim that his case requires
to be considered in the general merit, only because, he has
scored better percentage of marks than the last selected
candidate in the general merit. In our considered view, the
Administrative Tribunal having found that the appellants were
justified in not considering the respondent's case for
appointment under OBC category, ought not to have directed
the appellants to consider his claim under general category.
11) For the foregoing reasons, we allow this appeal and set
aside the impugned orders.”
LPA No. 329 of 2024 - 12 -
17. In Chattar Singh’s case (supra), Hon’ble the Supreme Court
held as under:-
“16. As regards the preparation of separate list of General,
OBCs, SCs, STs, and physically handicapped, in view of the
fact that the latest amendment has made explicit what was
implicit in Rule 13, we are of the view that separate lists are
required to be published by the Service Commission in respect
of the candidates in the respective categories so as to make up
number of candidates 15 times the notified or anticipated
posts/vacancies so as to enable them to appear in the Main
Examination. It is true that the amendment is prospective in
operation. However, it does not detract from the efficiency of
Rule 13 originally made. In view of the above, the Public
Service Commission is directed to call all those candidates that
constitute 15 times the posts/vacancies notified or anticipated
in terms of the above declaration of law so as to enable them to
appear in the Main Examination.”
18. With regard to selection process, where there is a stage of
screening or preliminary examination or short listing, the principle of
reservation has been held to be not applicable as the element of selection is
absent at that stage. Considering the Rule, as above, we noticed that a
candidate applying under the reserved category, participates in the screening
test for the purpose of his/her eligibility for participating in the regular
selection, the marks obtained in the screening test are not to be counted for
the purpose of selection. The list is to be prepared category-wise, which is
four times the number of posts available in that category.
19. In other words, if there are, say, 100 posts available for filling
up from one particular category, namely the BC(B) category, four times, i.e.,
LPA No. 329 of 2024 - 13 -
400 persons belonging to that category would be allowed to participate in
the selection process, i.e., in the General Knowledge test. The screening test,
thus, is not a stage where reservation is to be applied. It is when they have
cleared the screening test category-wise that they come to the same level to
participate in the selection process, and it is at that stage where the
reservation would be applicable.
20. Thus, at the stage of short listing of screening test, the principle
of migration was not acceptable.
21. We find that a view has been taken that the preliminary
examination for short listing is not a selection process, since the marks are
not being counted for the purpose of final selection although a written
examination is conducted. Short listing of candidates at that stage is
undertaken category-wise. Thus, if there are 100 posts for a particular
category, 4 times the number of candidates of that category would be called.
It is in this fashion, the Courts have taken a view that even for General
Category candidates, 4 times the General Category candidates are to be
called. Obviously, the view of the Court is that the General Category would
not be included for the purpose of screening at that stage. The General
Category would be of candidates who are not belonging to any of the
reserved category. Migration is, therefore, not to be applied as per the
aforesaid view of the Courts when short-listing of candidates for the main
examination/interview, as the element of selection, where the principle of
migration is to be applied, is absent at the short-listing stage.
LPA No. 329 of 2024 - 14 -
22. The Courts have explained that the stage of short listing is
where we pick up the best candidates from that particular category. The
migration has, therefore, to be essentially applied only at the subsequent
stage i.e. at the main examination or in this case the Subject Knowledge Test
or whatever term may be used.
23. In Chattar Singh
’s case (supra), the aforesaid view was
explained; however, we find that there is a change in the interpretation
relating to reservation which we need to examine.
24. In Saurav Yadav
’s case (supra), Hon’ble the Supreme Court
laid down the method and manner in which any merit list is to be prepared.
It lays down ambiguous terms that the first list which is to be prepared is of
an Open Category. The so called General Category is essentially an open
category where all the candidates, who may be from any of the caste, have to
be exhausted. Thus, if a candidate belonging to SC Category or from BC(B)
Category, has scored higher marks he would be placed in the open category
at number one. The view as taken in Saurav Yadav’s case (supra) was
followed again by Hon’ble the Supreme Court in Sadhana Singh Dangi vs
Pinki Asati 2022 (12) SCC 401 and held as under:-
“13. This Court thus considered two views, one which was
taken by the High Courts of Rajasthan, Bombay, Gujarat and
Uttarakhand; and, the second, which had weighed with the
High Courts of Allahabad and Madhya Pradesh. After
considering the totality of the circumstances as well as the rival
submissions, the view taken by the High Courts of Rajasthan,
Bombay, Gujarat and Uttarakhand was accepted to be the
LPA No. 329 of 2024 - 15 -
correct view and the one which was taken by the High Courts of
Allahabad and Madhya Pradesh was not approved.
14. The decision of this Court in Sourav Yadav had
considered all the cases on the point starting from Indra
Sawhney up to Mamta Bisht as well as other decisions. It was
finally concluded that the candidates belonging to the category
of OBC (Female) or any other reserved category (Female) were
entitled as a matter of right to have their candidature
considered against the category meant for Unreserved Female
Candidates if their merit position demanded so. It was further
held that the category of Unreserved (Female) is not a specially
allocated or reserved for those candidates who did not belong
to any of the categories of SC, ST or OBCs and that by very
nature “unreserved category” must mean and include every
person who on the strength of merit could be entitled to be
considered in that category.”
** ** **
23. The law laid down in Saurav Yadav is very clear that
even while applying horizontal reservation, the merit must be
given precedence and that if the candidates who belong to SCs,
STs and OBCs have secured higher marks or are more
meritorious, they must be considered against the seats meant
for unreserved candidates.
24. The observations made by the High Court in the instant
case, in our view, do not lay down the correct law. The High
Court failed to appreciate that conceptually there would be no
distinction between vertical and horizontal reservations, when
it comes to the basic idea that even the candidates belonging to
reserved categories can as well stake a claim to seats in
unreserved categories if their merit position entitles them to do
so.”
LPA No. 329 of 2024 - 16 -
Again Hon’ble the Supreme Court in recent judgment of Ramnaresh @
Rinku Kushwah and others vs State of Madhya Pradesh and others 2024
INSC 611, has set aside the judgment passed by the High Court of Madhya
Pradesh and others relating to admissions and has held as under:-
“16. In view of the settled position of law as laid down by this
Court in the case of Saurav Yadav (supra) and reiterated in the
case of Sadhana Singh Dangi (supra), the methodology adopted
by the respondents in compartmentalizing the different
categories in the horizontal reservation and restricting the
migration of the meritorious reserved category candidates to
the unreserved seats is totally unsustainable. In view of the
law laid down by this Court, the meritorious candidates
belonging to SC/ST/OBC, who on their own merit, were entitled
to be selected against the UR-GS quota, have been denied the
seats against the open seats in the GS quota.
17. It is to be noted that, in the present case, the cut-off for
UR candidates was much less as compared to the cut-off for
SC/ST/OBC/EWS candidates. As such, the respondents ought to
have admitted the present appellants against the UR- GS
categories. It is further to be noted that many seats from UR-GS
category were required to be transferred to the General
category.”
25. Having noticed the aforesaid judgments, we find that even at
the preliminary examination stage a candidate from reserved category may
score higher percentage of marks than the person who is not from reserved
category and it is an admitted position that a separate merit list is prepared
even at the preliminary stage of different categories. However, before
preparing the merit list of different categories, open category list is required
LPA No. 329 of 2024 - 17 -
to be exhausted, which may include candidates, who come from various
other categories also based on their merit.
26. In the present case, we find that the private respondent was
possessing higher merit than the candidate who has been placed in the
General Category list at the screening test level, but since in her own
category she was below the cut off, which apparently was higher than the cut
off for the General Category, she was ousted. It is with such situations that
the law as laid down in Saurav Yadav
’s case (supra) was required to be
followed i.e. first list even at the screening test level, should have been
prepared which would include the other category candidates. The view in the
concurring judgment of Saurav Yadav’s case (supra) of Hon’ble Mr. Justice
S. Ravindra Bhat needs to be noticed, which is as under:-
“11. The open category is not a ‘quota’, but rather available to
all women and men alike. Similarly, as held in Rajesh Kumar
Daria, there is no quota for men. If we are to accept the second
view [as held by the Allahabad High Court in Ajay Kumar v.
State of UP and the Madhya Pradesh High Court in State of
M.P. v. Uday Sisode, referred to in paras 24 and 25 of Lalit,
J.’s judgment], the result would be confining the number of
women candidates, irrespective of their performance, in their
social reservation categories and therefore, destructive of logic
and merit. The second view, therefore – perhaps unconsciously
supports- but definitely results in confining the number of
women in the select list to the overall numerical quota assured
by the rule.”
27. Keeping in view the above, we find that the law as laid down
by this Court in Naveen Rao vs State of Haryana and others 2019
LPA No. 329 of 2024 - 18 -
PHHC:019757-D, cannot be said to be in conformity with the principles as
laid down by Hon’ble the Supreme Court in Saurav Yadav, Sadhana Singh
Dangi and Ramnaresh @ Rinku Kushwah’s cases (supra). Similarly, the
law laid down by the Jabalpur Bench of Madhya Pradesh High Court in WP
No. 8750 of 2022 - Pushpendra Kumar Patel and others vs High Court of
M.P. and others decided on 02.01.2023; Avinash Yadav’s case (supra) and
Gur Jai Pal Singh’s case (supra) are also not in conformity with the
judgment of Saurav Yadav’s case (supra).
28. It is to be noticed that a written examination is conducted
known as Screening Test or as a Preliminary Examination or by different
names as and when there are candidates more than five times or more the
number of posts. The marks obtained in the said preliminary examination are
not to be counted for the purpose of the main selection. However, at the
screening test/ preliminary examination level, inter-se merit of candidates is
prepared so as to assess how many candidates would be allowed to
participate in the main examination.
29. We find that in Sunita Meena and Dharamveer Tholia’s cases
(supra), the examining body has put the reserved category person in one slot
and those who are found to be five times number of the vacancies as per
their merit, were called to participate in the main examination. At the same
time so far as merit list of General Category candidate is prepared at the
screening test level, the State has understood the said list to contain names of
those candidates who do not belong to the reserved category. This has
resulted in cut off marks for General Category list to be lower than the cut
LPA No. 329 of 2024 - 19 -
off marks of BC (B) category. In other words, while a person who does not
belong to reserved category, may be called for participating in the main
examination even though he possesses lesser marks than a reserved category
candidate in the screening test.
30. In our opinion, such could not have been the view of the law
makers. While obtaining marks in the screening test may not be part of the
selection process, still there is an element of selection as only those
candidates, who fall in the said list, can be allowed to participate in the main
examination. In our opinion, therefore, the view taken by the Apex Court in
Chattar Singh’s case (supra), cannot be said to lay down good law in light
of the law as laid down in Saurav Yadav’s case (supra). We, therefore, find
that the judgment passed by the learned Single Judge holding the writ
petitioner entitled for consideration of participation in the main examination
on the basis of her marks higher than the candidates, who did not belong to
reserved category, cannot be said to be unjustified. The writ petitioner
would, therefore, be entitled to participate in the main examination and the
respondents would be required to prepare a fresh merit list at the stage of
screening test, firstly of Open Category by counting the marks of all the
candidates, be it of reserved category or non-reserved category. This list
would be of four times the number of open category posts. The other lists of
reserved categories would thereafter follow on the basis of their marks in the
screening test. The aforesaid exercise may, of course, result in higher
number of reserved category candidates being called to participate in the
main examination i.e. Special Knowledge Test but such factual aspect is
logical and in consonance with the Constitution Bench Judgment in R. K.
LPA No. 329 of 2024 - 20 -
Sabharwal vs State of Punjab 1995 (2) SCC 745, wherein it was held as
under:-
“5. 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 reserve 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…
…… ….. ……. Despite any number of appointment/ promotees
belonging to the backward classes against the general category
posts the given percentage has to be provided in addition…..”
31. In view of the above discussions and directions, the appeal is
dismissed. The judgment passed by the learned Single Judge is modified,
and the results of candidates at the screening test level shall be prepared in
accordance with the above directions. The Subject Knowledge Test shall be
conducted accordingly where too the lists would be prepared in accordance
with the observations made hereinabove.
CWP No. 17188 of 2024
32. The writ petition was filed, which was placed before the
Division Bench by the learned Single Judge on account of pendency of the
aforesaid appeal. Since we have dismissed the appeal, we refrain from
passing any order and direct that the writ petition be placed before the
learned Single Judge, who would examine the issue in view of the
LPA No. 329 of 2024 - 21 -
observations made hereinabove. More so, no reply has been filed by the
respondents in the writ petition till date.
33. All interim orders shall stand vacated.
34. All pending applications shall stand disposed of.
35. No costs.
(SANJEEV PRAKASH SHARMA)
JUDGE
9th April, 2025 (KIRTI SINGH)
vs JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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