Ms. Suresh Chandra Singh, a CBI employee, alleged physical and verbal harassment by senior officers, including Ramesh Ram. Despite complaints to authorities, no action was taken, leading to her resignation. ...
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REPORTABL E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4310-4311 OF 2010
[Arising out of SLP (C) Nos.13571-72 of 2008]
Union of India … Appellant
Vs.
Ramesh Ram & Ors. etc. … Respondents
With
CA Nos.4315-4316/2010 @ SLP (C) Nos.13297-98/2008
CA No.4319/2010 @ SLP (C) No. 13581 of 2008
CA Nos.4324-4328/2010 @ SLP (C) Nos. 14834-38 of 2008
And
WP(C) Nos. 297, 312, 336, 414, 416 & 539 of 2008
J U D G M E N T
K.G. BALAKRISHNAN , CJI
1.Leave granted.
2.The constitutional validity of sub-rules (2) to (5) of Rule
16 of the Civil Service Examination Rules (hereinafter
‘Rules’) relating to civil services examinations held by the
Union Public Service Commission in the years 2005 to 2007
is the subject-matter of these appeals by special leave. A
three Judge Bench of this Court, by order dated 14.5.2009
has referred these cases to the Constitution Bench as it
raises an important legal question as to whether candidates
belonging to reserved category, who get recommended
against general/unreserved 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 reservation category.
3. Selection to three All India Services (Indian
Administrative Service, Indian Foreign Service and Indian
Police Service) and fifteen Group ‘A’ Services and three
Group ‘B’ officers in various Government departments are
made by the Union Public Service Commission (hereinafter
‘UPSC’), by conducting Civil Service Examinations
periodically. Civil Service Examinations are held as per the
Civil Service Examinations Rules notified in regard to each
examination. The Rules for the Civil Service Examination
which was to be held in 2005 by the UPSC were published
by the Department of Personnel and Training (hereinafter
‘DOP&T’) vide Notification dated 4.12.2004.
2
4. To appreciate the issue, it will be necessary to refer to
the relevant rules. The Preamble to the Rules enumerates
21 services. Rule 1 provides that the examination will be
conducted by the UPSC in the manner prescribed in
Appendix-I to the Rules.
4.1)Rule 2 of the Rules relates to preferences and is
extracted below:
“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 Service 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 19 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 services/posts,
3
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 services/posts in
accordance with their preferences.”
4.2)Rule 3 relates to number of vacancies and provision for
reservation and it reads as follows:
“3. The number of vacancies to be filled on
the result of the examination will be specified
in the Notice issued by the Commission.
Reservation will be made for candidates
belonging to the Scheduled Castes, Scheduled
Tribes, Other Backward Classes and physically
disabled categories in respect of vacancies as
may be fixed by the Government.”
4.3)Rule 15 provides for three examinations namely
preliminary examination, main written examination and
interview test as follows:
“15.Candidates who obtained such minimum
qualifying marks in the Preliminary
Examination as may be fixed by the
Commission at their discretion shall be
admitted to the Main Examination; and
candidates who obtain such minimum
qualifying marks in the Main Examination
4
(written) as may be fixed by the Commission at
their discretion shall be summoned by them
for an interview for personality test:
Provided that candidates belonging to the
Scheduled Castes or Scheduled Tribes or
Other Backward Classes may be summoned
for an interview for a personality test by the
Commission by applying relaxed standards in
the Preliminary Examination as well as Main
Examination (Written) if the Commission is of
the opinion that sufficient number of
candidates from these communities are not
likely to be summoned for interview for a
personality test on the basis of the general
standard in order to fill up vacancies reserved
for them.”
4.4)Rule 16 lays down the manner of selection,
preparation of merit list and selection of candidates. The
said rule is extracted below:
“16.(1) 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. Thereafter, the Commission
shall, for the purpose of recommending
candidates against unreserved vacancies, fix a
qualifying mark (hereinafter referred to as
general qualifying standard) with reference to
the number of unreserved vacancies to be filled
up on the basis of the Main Examination. For
the purpose of recommending Reserved
Category candidates belonging to Scheduled
Castes, Scheduled Tribes and Other Backward
Classes against reserved vacancies, the
Commission may relax the general qualifying
5
standard with reference to number of reserved
vacancies to be filled up in each of these
categories on the basis of the Main
Examination:
Provided that the candidates belonging to the
Scheduled Castes, Scheduled Tribes and the
Other Backward Classes who have not availed
themselves of any of the concessions or
relaxations in the eligibility or the selection
criteria, at any stage of the examination and
who after taking into account the general
qualifying standards are found fit for
recommendation by the Commission shall not
be recommended against the vacancies
reserved for Scheduled Castes, Scheduled
Tribes and the Other Backward Classes.
(2) While making service allocation, the
candidates belonging to the Scheduled Castes,
the Scheduled Tribes or Other Backward
Classes recommended against unreserved
vacancies may be adjusted against reserved
vacancies by the Govt. if by this process they
get a service of higher choice in the order of
their preference.
(3) The Commission may further lower the
qualifying standards to take care of any
shortfall of candidates for appointment against
unreserved vacancies and any surplus of
candidates against reserved vacancies arising
out of the provisions of this rule, the
Commission may make the recommendations
in the manner prescribed in sub-rules (4) and
(5).
(4) While recommending the candidates, the
Commission shall, in the first instance, take
into account the total number of vacancies in
all categories. This total number of
recommended candidates shall be reduced by
6
the number of candidates belonging to the
Scheduled Castes, the Scheduled Tribes and
Other Backward Classes who acquire the merit
at or above the fixed general qualifying
standard without availing themselves of any
concession or relaxation in the eligibility or
selection criteria in terms of the proviso to
sub-rule (1). Along with this list of
recommended candidates, the Commission
shall also declare a consolidated reserve list of
candidates which will include candidates from
general and reserved categories ranking in
order of merit below the last recommended
candidate under each category. The number of
candidates in each of these categories will be
equal to the number of Reserved Category
candidates who were included in the first list
without availing of any relaxation or
concession in eligibility or selection criteria as
per proviso to sub-rule (1). Amongst the
reserved categories, the number of candidates
from each of the Scheduled Caste, the
Scheduled Tribe and Other Backward Class
categories in the reserve list will be equal to
the respective number of vacancies reduced
initially in each category.
(5)The candidates recommended in terms of
the provisions of sub-rule (4), shall be
allocated by the Government to the services
and where certain vacancies still remain to be
filled up, the Government may forward a
requisition to the Commission requiring it to
recommend, in order of merit, from the reserve
list, the same number of candidates as
requisitioned for the purpose of filling up the
unfilled vacancies in each category.”
4.5)Rule 19 provides that due consideration will be given
at the time of making allocation on the results of the
7
examination to the preferences expressed by a candidate for
various services at the time of his application and the
appointment to various services will also be governed by the
Rules/Regulations in force, as applicable to the respective
Services at the time of appointment.
5. The total vacancies notified by the participating
services for the Civil Service Examination, 2005 were 457
made up of General Category : 242, OBC category : 117,
Scheduled Castes : 166 and Scheduled Tribes : 32. As per
Rule 16(1) and (4), UPSC recommended 425 candidates in
the first phase made up of the following: General -- 210,
OBC -- 117 (including 31 merit candidates); Scheduled
Castes -- 66 (including 1 merit candidate) and Scheduled
Tribes -- 32. A consolidated Reserve list (wait-list) was also
prepared consisting of 64 candidates. The DOP&T after
allocation of the candidates from the first list, made a
requisition for recommendation of candidates through the
operation of the reserve list. 26 Meritorious OBC candidates
and one Meritorious Scheduled Caste candidate
recommended against unreserved vacancies, opted for
8
reserved vacancies as by that process, they got a service of
higher choice in the order of preference. If the said 27
meritorious reserved category candidates had been
considered only for service allocation against unreserved
vacancies in competition with the General Category
candidates, they would have got a service of lower choice.
Rule 16(2) enabled the meritorious candidate of any of the
reservation categories to get a service of higher preference
so that he may not be placed at a disadvantaged position
vis a vis other candidates of his category.
6. The DOP&T could therefore adjust only 5 out of the 31
Meritorious Category OBC candidates through their
merit-cum-service preference option as General Candidates.
As a result, the UPSC recommended under Rule 16(5) of the
Rules, 27 General Category candidates and 5 OBC
candidates from the consolidated Reserve List.
7.Certain OBC candidates in the Reserve (wait list) filed
applications before the Central Administrative Tribunal,
Madras Bench, challenging Rule 16(2). It was contended
9
that adjustment of OBC merit candidates against OBC
reservation vacancies was illegal. According to them, such
candidates should be adjusted against the general
(unreserved) vacancies, as that would have allowed more
posts for OBC candidates and would have allowed the lower
ranked OBC candidates a better choice of service. They
contended that more meritorious OBC candidates should be
satisfied with lower choice of service as they became general
(unreserved) candidates by reason of their better
performance.
8. The Tribunal, after interpreting amended Rule 16(2) in
the light of the various judgments of this Court, concluded
that meritorious OBC candidates who were selected on
merit must be adjusted against the ‘General Category’.
However, it ordered that Rule 16(2) may be applied in terms
of decision of this Court in Anurag Patel vs. U.P. Public
Service Commission & Ors., (2005) 9 SCC 742, to ensure
that allocation of service is in accordance with
rank-cum-preference with priority given to meritorious
candidates for service allocation.
10
9. The Union of India and other aggrieved candidates
preferred Writ Petitions before the Madras High Court
challenging the order of the Central Administrative
Tribunal. Some other aggrieved candidates got themselves
impleaded in the said proceedings. By the impugned order
dated 20.3.2008, the High Court held Rule 16(2) as
unconstitutional. Consequently, the High Court set aside
the select lists and directed the Government of India and
UPSC to redo service allocation de hors Rule 16(2).
10.The first batch of civil appeals @ SLP [C] Nos.
13571-13572 of 2008 is filed by the Union of India against
the said order dated 20.3.2008 in W.P. [C] Nos.1814 & 1815
of 2008. Other persons aggrieved by the said order have
filed the remaining civil appeals. Being aggrieved by the
action of the Union Public Service Commission and the
Government of India by which candidates in Reserved
Category selected in General Category were given choice to
opt for service of higher preference in terms of Rule 16(2) of
the Rules, some of the reservation category candidates have
filed Writ Petition (C) Nos.297, 312, 336 & 416 of 2008
under Art. 32 of the Constitution of India to declare Rule
11
16(2),(3),(4) and (5) of the Civil Services Examination Rules,
2005 as ultra vires being inconsistent with Rule 16(1) of the
said Rules, as violative of Articles 14, 16(4) and 335 of
Constitution of India, consequential reliefs.
11. We heard Mr. Gopal Subramanium, Learned Solicitor
General of India, on behalf of the Union of India. Ms. Indira
Jaisingh, Learned ASG appeared in W.P. (C) No. 297/1008.
Mr. P.P. Rao, Sr. Adv., Mr. P.S. Patwalia, Sr. Adv. and
Mr. Anirudh Sharma, Adv. represented the appellants in the
other appeals. Mr. Raju Ramachandran, Sr. Adv.,
Mr. Nidheesh Gupta, Sr. Adv., Prof. Ravi Varma Kumar, Sr.
Adv., Mr. Santosh Paul, Adv., Mr. S.P. Sinha, Adv.,
Mr. Praveen Agarwal, Adv., and Mr. Shiv Pujan Singh Adv.,
appeared on behalf of the writ petitioners and the
respondents in the writ appeals.
12. The case of the contesting respondents is that the
newly introduced system which is different from the single
list system followed earlier (prior to amendment of CSE
Rules) will undermine the rights of the Reserved Category
12
candidates to get assigned to services of higher preference
(e.g. IAS, IPS or IRS). They also urged that this system will
reduce the aggregate number of reserved candidates who
will be selected while simultaneously increasing the number
of general candidates. It also puts candidates who come
through the second list at a disadvantage in terms of
seniority and promotions for rest of their career in their
respective services. By the impugned order, the High Court
had vindicated these grievances, particularly those raised by
OBC candidates.
13. In the light of the submissions made by the learned
counsel appearing for different appellants, the following
questions arise for consideration:
I. Whether the Reserved Category candidates who were
selected on merit (i.e. MRCs) and placed in the list of
General Category candidates could be considered as
Reserved Category candidates at the time of “service
allocation”?
13
II. Whether Rule 16 (2), (3), (4) and (5) of the CSE Rules
are inconsistent with Rule 16 (1) and violative of Articles 14,
16 (4) and 335 of the Constitution of India?
III. Whether the order of the Central Administrative
Tribunal was valid to the extent that it relied on Anurag
Patel v. Uttar Pradesh Public Service Commission and
Others, (2005) 9 SCC 742 (which in turn had referred to the
judgment in Ritesh R. Sah v. Dr. Y.L.Yamul and Others,
(1996) 3 SCC 253, which dealt with reservations for the
purpose of admission to post graduate medical courses);
and whether the principles followed for reservations in
admissions to educational institutions can be applied to
examine the constitutionality of a policy that deals with
reservation in civil services.
Re: Question I
14. The relevant provision is Rule 16(2) of the Civil
Services Examination Rules which was amended by a
notification dated 4.12.2004 issued by the Ministry of
Personnel, Public Grievances, and Pensions (DOP&T), New
14
Delhi. The appellants’ contention is that the amended Rule
16 (2) intends to rectify an anomaly, as otherwise, the
interests of the Meritorious Reserved Category (hereinafter
‘MRC’) candidates who have toiled hard to qualify as per the
general qualifying standard would be jeopardized. Such
candidates could find themselves in a position where
Reserved Category candidates who are less meritorious than
them can possibly secure posts in a service of a higher
preference. The Union Government contends that the object
of amending Rule 16 (2) is to ensure that such an adverse
incongruous position does not arise for more meritorious
candidates.
15. Mr. Gopal Subramanium, the Learned Solicitor
General of India, has brought forth three implications and
repercussions of the amended Rule 16 once it comes into
operation:
(i) It affords a Meritorious Reserved Candidate the
benefit of reservation insofar as Service Allocation
is concerned. In other words, if such a
Meritorious Reserved Candidate - although
entitled to a post in the General list- is able to
secure a better (or more preferred) post in the
15
Reserved List, Rule 16 (2) comes to his aid, and
he is able to secure the better post. This
preserves and protects inter se merit amongst the
Reserved Candidates.
(ii) When Rule 16 (2) enables a Meritorious
Reserved Candidate to secure a post in the
Reserved Category, that Candidate is to be
treated as a Reserved Candidate (consistent with
his Reserved Category status as per the
application form).
(iii) Once Rule 16 (2) is operated, the General post
that would otherwise have been available to the
Meritorious Reserved Candidate is now filled up
by a (Wait Listed) General Candidate.
The Respondents have objected to the effect of Rule 16 (2) in
so far as the second and third aspects are concerned. They
have no grievance with respect to the first aspect. They
contend that when an MRC candidate is entitled to a
General Merit slot, chooses to opt for a slot earmarked for a
reservation category the result should be a mutual
exchange between the meritorious reserved candidate and
the reserved candidate. The MRC candidate will carry the
tag of a general candidate even when he occupies the
reservation post and the occupant of the reservation post
will migrate to the general merit slot vacated by the MRC
candidate. If the MRC candidate migrating to reservation
16
category slot is counted as a reservation candidate, to that
extent there will be a reduction in the posts meant for
reservation category candidates.
16.The Civil Services Examination conducted by Union
Public Service Commission (UPSC) has three stages:
Preliminary Examination, Main Examination, and Interview.
The candidates appearing in the Examination have to
render information in the application form indicating their
status as General, Other Backward Class (OBC), Scheduled
Castes (SC) or Scheduled Tribes (ST). Moreover, at a later
stage the candidates have to furnish their preferences of
services in which they have to indicate their choices in the
event of qualification. This has been spelt out in Rule 2 of
the CSE Rules.
17. In support of their contentions, the respondents have
relied upon the following observations of this Court in
Union of India v. Satya Prakash, (2006) 4 SCC 550,
(at paras. 18, 19 and 20):
17
“18. By way of illustration, a Reserved Category
candidate, recommended by the Commission
without resorting to relaxed standard (i.e. on mer-
it) did not get his own preference 'say IAS' in the
merit/open category. For that, he may opt a pref-
erence 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 re-
served for the Scheduled Castes, Scheduled
Tribes and other Backward Classes. This is the
mandate of proviso to Sub-rule 2 of Rule 16.
19. 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 re-
sorting 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 Re-
served Category candidate recommended by the
Commission by resorting to relaxed standard.
20. 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
18
allocated to a service/post in accordance with
their preference.”
18. The decision in Satya Prakash was rendered prior to
the amendment of Rule 16(2) and the learned judge had not
contemplated the present version of the rule. Hence, this
decision is clearly distinguishable from the present case.
Prior to the decision in Satya Prakash’s case (supra.), the
practice had been that a single list of successful candidates
was released in respect of all the vacancies. At that time,
MRC candidates were initially treated as general candidates
and had Rule 16(2) not been amended, a single list would
have been released for all 457 posts which were vacant in
the year under consideration. Accordingly, such a list would
have contained 242 General candidates (including 32 MRC
candidates). There would have been a separate list for 117
OBCs, 66 SCs and 32 STs (excluding MRC candidates).
When the MRC Candidates were shifted from the general list
to the reserved list, there was an ouster of the relatively
lower ranked Reserved Category candidates who were
initially selected as part of the reserved list. For example
when 27 MRC candidates (26 belonging to OBC and 1 SC)
19
would have moved from the General List to the Reserved
List, 26 OBC and 1 SC candidates who were ranked lower
among the 117 OBC and 66 SC candidates initially selected
in the Reserved Category, would have been ousted.
19.The unamended as well as amended Rule 16 (2) are as
follows:-
Rule 16 (2) in the old Civil
Service Examination Rules
Rule 16 (2) in the current
Civil Service Examination
Rules (vide notification
dated 4.12.2004)
The candidates belonging to
any of the Scheduled Castes
or 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 services.
Provided that the candidates
belonging to the Scheduled
Castes and the Scheduled
Tribes and the Other
Backward Classes who have
been recommended by the
Commission without
While making service
allocation, the candidates
belonging to the Scheduled
Castes, the Scheduled Tribes
or Other Backward Classes
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.
20
resorting to the relaxed
standard referred to in this
sub-rule shall not be
adjusted against the
vacancies reserved for the
Scheduled Castes and the
Scheduled Tribes and the
Other Backward Classes.
20. The UPSC declares results in two stages and the same
was done in the year 2006. As per the final result of CSE
2005, out of 457 vacancies, 425 candidates were
recommended for appointment which included 210 General,
117 OBC, 66 SC and 32 ST candidates. The UPSC was
maintaining a consolidated reserve list, i.e. a Wait List of 64
candidates (consisting of 32 general, 31 OBC and 1 SC
candidate) ranking in order of merit below the last
recommended candidate under each of these categories as
per Rule 16 (4) and (5) of the CSE Rules, 2005. Admittedly,
31 OBC category candidates who had qualified in the
General Merit List were not included in the General
Category and instead they were part of 117 OBC category
candidates selected as part of the Reserved Category.
Hence, an equal number of OBC category candidates who
were ranked lower in the order of merit as part of the
21
Reserved Category seats were initially ousted. The purpose
of including those OBC category candidates who had
qualified in the General Category was to give them a higher
preferred service from the vacancies under the OBC
category. The CSE rules were accordingly amended to allow
for such a migration.
21. The Learned Solicitor General has described in detail
how along with the list of recommended candidates, the
UPSC also prepares a Consolidated Reserve List. This
Consolidated Reserve List is a Wait List for filling the
remaining 32 vacancies. It contained two parallel sub-lists:
Wait List A consisting of 32 General Candidates and Wait
List B consisting of 32 Reserved Candidates (31 OBCs and 1
SC) the 1 SC candidate would be positioned in the Wait List
at the same position in which the 1 SC candidate was
placed amongst the 32 MRC candidates. Two Wait Lists are
prepared so that depending on how the 32 MRCs are placed
and in whatever contingency - whether they are adjusted
against General or Reserved Posts - there will remain a
sufficient number of candidates (both general and reserved)
22
to be adjusted against the balance 32 posts in the second
stage.
22. When Department of Personnel and Training (DoP&T)
received the Lists, the 32 MRC candidates were added to the
list of 210 General candidates but at the same time they
were positioned in the reserved lists of 117 OBC candidates
and 66 SC candidates as well. The UPSC list counts the
MRC candidates as part of the Reserved List for the purpose
of ascertaining the reservation quota in terms of percentage.
The rationale cited for this method is that for the purpose of
service allocation, the DOP&T initially counts the MRC
candidates in both the General and the Reserved Lists.
These candidates are then placed against the better of the
two services available to them under either of these
categories which is of course based on their order of
preference. A Service is allocated by moving downwards in
the merit list in a serial manner, with each candidate in the
merit list getting the best available option as per his/her
preference.
23
23. The respondents have also placed strong reliance on
this Court’s decision in Ritesh R. Sah v. Dr. Y.L.Yamul
(1996) 3 SCC 253). The question in that case was whether a
Reserved Category candidate who is entitled to be selected
for admission in open competition on the basis of his/her
own merit should be counted against the quota meant for
the Reserved Category or should he be treated as a general
candidate. The Court reached the conclusion that when a
candidate is admitted to an educational institution on his
own merit, then such admission is not to be counted
against the quota reserved for Schedule Castes or any other
Reserved Category. However, it is pertinent to note that this
decision was given in the context of admissions to medical
colleges in which G.B. Pattanaik J. (as His Lordship then
was) had held:
“17.…In view of the legal position enunciated by
this Court in the aforesaid cases the conclusion is
irresistible that a student who is entitled 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
24
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 will 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 to 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 as an open category
candidate and not as a Reserved Category
candidate…”
24.There is an obvious distinction between qualifying
through an entrance test for securing admission in a medi-
cal college and qualifying in the UPSC examinations since
the latter examination is conducted for filling up vacancies
in the various civil services. In the former case, all the suc-
cessful candidates receive the same benefit of securing ad-
mission in an educational institution. However, in the latter
case there are variations in the benefits that accrue to suc-
cessful candidates because they are also competing
amongst themselves to secure the service of their choice.
25
For example, most candidates opt for at least one of the first
three services [i.e. Indian Administrative Service (IAS), Indi-
an Foreign Service (IFS) and Indian Police Service (IPS)]
when they are asked for preferences. A majority of the can-
didates prefer IAS as the first option. In this respect, a Re-
served Category candidate who has qualified as part of the
general list should not be disadvantaged by being assigned
to a lower service against the vacancies in the General Cate-
gory especially because if he had availed the benefit of his
Reserved Category status, he would have got a service of a
higher preference. With the obvious intention of preventing
such an anomaly, Rule 16 (2) provides that an MRC candi-
date is at liberty to choose between the general quota or the
respective Reserved Category quota.
25. Some factual examples can clarify the position. In
2005, an MRC (OBC) candidate attained 21
st
Rank overall.
With respect to his position in the General Merit List, there
were General Category IAS vacancies available, and he oc-
cupied the 17
th
out of 45 General vacancies in the IAS.
Thus, he did not need the assistance of Rule 16(2) to get a
post in a more preferred service since he was adjusted
26
against the General List. Accordingly, he opted out of the
Reserved Category. This was in line with the proposition
that when a candidate is entitled to a certain post on his
merit alone, he should not be counted against the reserved
quota. In contrast, another candidate who was an MRC
(OBC) candidate obtained 64
th
Rank overall in the CSE
2005. At his position in the General List, he was entitled to
a post in the IPS since the General Category IAS vacancies
had been exhausted by candidates above him in the General
merit list. However, IPS was his second preference while IAS
was his first preference. If he were to be considered against
the vacancies in the Reserved Category, he would be entitled
to a post in the IAS because the 22 OBC IAS vacancies had
not been exhausted at that point of time. By the operation of
Rule 16 (2), he was able to secure a post in the IAS, while
retaining his Reserved Status. Having availed of this benefit,
he was adjusted against the Reserved (OBC) category.
26. Learned Counsel for respondent questioned the ratio-
nale of declaring the CSE results in two phases in order to
support the proposition that even if MRC candidates are giv-
en a service of a higher preference, they should not oust
27
lower-ranked Reserved Category candidates. However, Rule
16 (2) should not be interpreted in an isolated manner since
it was designed to protect the interests of MRC candidates.
MRC candidates having indicated their status as
SC/ST/OBC at the time of application, begin their partici-
pation in the examination process as Reserved Candidates.
Having qualified as per the general qualifying standard, they
have the additional option of opting out of the Reserved Cat-
egory and occupying a General Post. Where, however, they
are able to secure a better post in the Reserved List their
placement in the General List should not deprive them of
the same. In that respect, the adjustment referred to in Rule
16 (2) does not, in fact, denote any change in the status of
the MRC from General to Reserved. To the contrary, it is an
affirmation of the Reserved Status of the MRC candidate.
Rule 16(2) exists to protect this Reserved Status of the MRC
candidates.
27. We must also take note of the fact that when MRC
candidates get adjusted against the Reserved Category, the
same creates corresponding vacancies in the General Merit
List (since MRC candidates are on both lists). These vacan-
28
cies are of course filled up by general candidates. Likewise,
when MRC candidates are subsequently adjusted against
the General Category [i.e. without availing the benefit of
Rule 16 (2)], the same will result in vacancies in the Re-
served Category which must in turn be filled up by Wait
Listed Reserved Candidates. Moreover, the operation of Rule
16 does not result in the ouster of any of the candidates rec-
ommended in the first list. Many of the wait-listed candi-
dates are accommodated in the second stage, and the rela-
tively lower ranked wait-listed candidates are excluded. It is
pertinent to note that these excluded candidates never had
any absolute right to recruitment or even any expectation
that they would be recruited. Their chances depend on how
the MRC candidates are adjusted.
28. In the impugned judgment, the High Court had rea-
soned that allocation to a particular post cannot be distin-
guished from allocation to a service for the purpose of reser-
vation. However, the High Court had not considered the fact
that in the CSE examination, the candidates are not com-
peting for similar posts in one service but are instead com-
peting for posts in different services that correspond to vary-
29
ing preferences. Furthermore, the impugned judgment did
not appreciate the possibility that when an SC/ST/OBC
candidate qualifies on merit (i.e. without any
relaxation/concession) there can be a situation where a low-
er ranked OBC candidate gets allotted to a better service in
comparison to a higher ranked SC/ST/OBC candidate sim-
ply because the higher ranked OBC candidate performed
well enough to qualify in the General Category. Such a situ-
ation is anomalous. As we have already discussed, the High
Court’s reliance on the decision of this Court in Union of
India v. Satya Prakash, (supra.), is not tenable since it
dealt with the effect of Rule 16 (2) as it existed prior to the
amendment notified on 4.12.2004.
29. A significant aspect which needs to be discussed is
that the aggregate reservation should not exceed 50% of all
the available vacancies, in accordance with the decision of
this Court in Indra Sawhney v. Union of India, (1992)
Supp 3 SCC 217. If the MRC candidates are adjusted
against the Reserved Category vacancies with respect to
their higher preferences and the seats vacated by them in
the General Category are further allotted to other Reserved
30
Category candidates, the aggregate reservation could possi-
bly exceed 50 % of all of the available posts.
30. In Post Graduate Institute of Medical Education
and Research v. Faculty Association, (1998) 4 SCC 1,
G.N. Ray J. had clearly stated that the upper ceiling of 50%
reservations should not be breached:
“32. Articles 14, 15 and 16 including Articles
16(4), 16(4-A) must be applied in such a manner
so that the balance is struck in the matter of
appointments by creating reasonable opportuni-
ties for the reserved classes and also for the other
members of the community who do not belong to
reserved classes. Such a view has been indicated
in the Constitution Bench decision of this Court
in Balaji case, Devadasan case and Sabharwal
case. Even in Indra Sawhney case the same view
has been held by indicating that only a limited
reservation not exceeding 50% is permissible. It is
to be appreciated that Article 15 (4) is an enabling
provision like Article 16 (4) and the reservation
under either provision should not exceed legiti-
mate limits. In making reservations for the back-
ward classes, the State cannot ignore the funda-
mental rights of the rest of the citizens. The spe-
cial provision under Article 15 (4) [sic 16 (4)] must
therefore strike a balance between several rele-
vant considerations and proceed objectively. In
this connection reference may be made to the de-
cisions of this Court in State of A.P. v. U.S.V. Bal-
ram and C.A. Rajendran v. Union of India. It has
been indicated in Indra Sawhney that clause (4)
of Article 16 is not in the nature of an exception
to clauses (1) and (2) of Article 16 but an instance
of classification permitted by clause (1). It has
31
also been indicated in the said decision that
clause (4) of Article 16 does not cover the entire
field covered by clauses (1) and (2) of Article 16.
In Indra Sawhney case this Court has also indi-
cated that in the interests of the backward class-
es of citizens, the State cannot reserve all the ap-
pointments under the State or even a majority of
them. The doctrine of equality of opportunity in
clause (1) of Article 16 is to be reconciled in such
a manner that the latter while serving the cause
of backward classes shall not unreasonably en-
croach upon the field of equality.”
31. In State of Kerala v. N.M. Thomas, (1976) 2 SCC
310, the same proposition was enunciated by A.N. Ray, C.J.
who had held:
“26.The respondent contended that apart from
Article 16 (4) members of scheduled castes and
scheduled tribes were not entitled to any favoured
treatment in regard to promotion. In T.Devadasan
v. Union of India reservation was made for back-
ward classes. The number of reserved seats
which were not filled up was carried forward to
the subsequent year. On the basis of “carry for-
ward” it was found that such reserved seats
might destroy equality. To illustrate, if 18 seats
were reserved and for two successive years the re-
served seats were not filled and in the third year
there were 100 vacancies the result would be that
54 reserved seats would be occupied out of 100
vacancies. This would destroy equality. On that
ground “carry forward” principle was not sus-
tained in Devadasan’s case (supra). The same
view was taken in the case of M.R.Balaji v. State
of Mysore. It was said that not more than 50 per
32
cent should be reserved for backward classes.
This ensures equality. Reservation is not a con-
stitutional compulsion but is discretionary ac-
cording to the ruling of this Court in Rajendran’s
case (supra).”
32. Therefore, we are of the firm opinion that MRC
candidates who avail the benefit of Rule 16(2) and are
eventually adjusted in the Reserved Category should be
counted as part of the reserved pool for the purpose of
computing the aggregate reservation quotas. The seats
vacated by MRC candidates in the general pool will therefore
be offered to General Category candidates. This is the only
viable solution since allotting these General Category seats
(vacated by MRC candidates) to relatively lower ranked
Reserved Category candidates would result in aggregate
reservations exceeding 50% of the total number of available
seats. Hence, we see no hurdle to the migration of MRC
candidates to the Reserved Category.
33
Re: Question II
33. We have extracted Rule 16 of the Civil Service
Examination Rules, as per notification dated 4.12.2004
issued by the Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training), New
Delhi. A perusal of the rule discloses the following: Rule 16
(1) mandates that after the interview phase, the candidates
will be arranged in the order of merit on the basis of
aggregate marks obtained in the main examination. Later
on, the UPSC shall fix a qualifying mark for recommending
the candidates for the unreserved vacancies. Proviso to
sub-rule (1) lays down that a candidate who belongs to the
SC, ST & OBC categories and who has qualified on his own
in the merit list shall not be recommended against the
vacancies reserved for such classes if such candidate has
not availed of any of the concessions or relaxations in the
eligibility or the selection criteria. The other sub-rules
provide as to how Meritorious Reserve Category candidates
are to be adjusted and once they get services of their
34
preference after availing the benefit of their reserved status
(as SC, ST, OBC or any other applicable category), the
candidates whose names are in the consolidated reserve
lists are to be subsequently adjusted. The consolidated wait
list includes the candidates from General Category and
Reserved Category. If an MRC candidate who belongs to
OBC category has availed the benefit of his status for better
service allocation then the seat vacated by him will go to a
General Category candidate. If he chooses not to avail the
benefits of special status then he would be counted in
General Category and the seat vacated by him in the
Reserved Category will automatically go to a candidate who
belongs to the same Reserved Category.
34. As per the submissions made before this Court, in the
year 2005, 27 MRC candidates were adjusted against
Reserved Category and 5 MRC candidates were adjusted in
General Category. As already explained, the current process
entails that a Reserved Candidate, although having done
well enough in the examination to have qualified in the open
category, does not automatically rescind his/her right to a
35
post in the Reserved Category. Furthermore, Rule 16(2)
operates to recognize the inter se merit amongst the
Reserved Category Candidates. The two stage process is
designed in a manner that no person included in the first
recommended list is subsequently eliminated. However,
since the wait list contains more candidates than available
posts, it is inevitable that some persons in the wait list will
necessarily be excluded. Such exclusion is on the basis of
merit and the aggrieved parties were never promised a post.
35. The following chart presented by the Learned Solicitor
General explains how service allocation has been done for
the years 2005, 2006 and 2007:
Service Allocation in the Years 2005, 2006, 2007
Vacancy Position
YearGeneral
Vacancies
OBC
Vacancies
SC
Vacancies
ST
Vacancies
Total
Vacancies
2005242 117 66 32 457
2006273 144 80 36 533
2007382 190 109 53 734
Candidates Recommended Against vacancies in the first case
YearGeneral
Candidat
es
OBC
Candidate
s
SC
Candidates
ST
Candidate
s
Total
Candidate
s
2005210 117 66 32 425
36
(including
31 merit
candidate
s)
(including
1 merit
Candidate)
2006214 144
(including
41 merit
candidate
s)
80
(including
15 merit
candidates)
36
(including
2 merit
candidate
s)
474
2007286 190
(including
76 merit
candidate
s)
109
(including
19 merit
candidates)
53
(including
1 merit
candidate
)
638
However, we have been apprised that on account of the
intervening order of the CAT Chennai Bench (dated
17.09.07 in O.A. No. 690 and 775 of 2006), the Department
of Personnel & Training (DOP&T) has not been able to
proceed with service allocation against the second list.
Similarly, for the years 2006 and 2007, the UPSC is
maintaining a Consolidated Reserve List of 116 and 192
candidates respectively, but DOP&T has not sent any
requisition for the second list as per Rule 16(5).
36. In State of Bihar v. M .Neeti Chandra, (1996) 6 SCC
36, this Court was confronted with broadly analogous
issues. In that case, the Controller of Examinations, Health
37
Services, Government of Bihar, Patna had issued the
prospectus for a competitive examination for admission to
post graduate courses in Patna Medical College (Patna),
Darbhanga Medical College (Laheria Sarai), Rajendra
Medical College (Ranchi) and Mahatma Gandhi Medical
College (Jamshedpur) for the year 1992. The prospectus
contained the following provisions with respect to
reservations:
“The reservation of seats for various categories shall be as
per the decision of the government. There will be no economic
criteria for the reservation.
Scheduled Caste 14%
Scheduled Tribe 10%
Extremely Backward Class 14%
Backward Class 9%
Ladies 3%
The Government of Bihar acting through the Department of
Personnel and Administrative Reforms published a
resolution dated 7-2-1992, bearing No. 11/K1-1022/91-K
20 [Hereinafter “Resolution No. 20”]. Paragraph 6 of the
same is reproduced below:
38
“As there is provision in direct appointment to the
effect that the candidates belonging to reserved
classes, who are selected on the basis of merit
would not be adjusted against reserved seats,
similarly maintaining the same arrangement here
also the candidates selected on the basis of merit
for admission into professional training institutes
would not be adjusted against the reserved quota
for the candidates of the reserved classes”.
The High Court of Patna which considered the matter
devised a method to remove the anomalies. It initiated a
process of allotment of seats by which the reserved seats
were offered first (i.e. before the general seats are filled first)
to the candidates of the Reserved Category on merit, and
after all the reserved seats were so filled up, all other
qualifying candidates of the Reserved Category were
‘adjusted’ against open seats in the General Category along
with the general merit candidates and offered seats on
merit-cum-choice basis. Furthermore, the High Court made
arrangement for the Reserved Category of girls who could
get seats under the reservation for girls or under those
reserved for SCs /STs etc., thereby retaining a choice
between one of the two reservations. The girls in excess of
the reserved vacancies could seek admission on general
39
merit. The High Court held that by this procedure all the
anomalies in the procedure for allotment of seats could be
removed. In the meantime, another resolution was passed
which was supposed to rectify the anomalies arising out of
the operation of the previous Resolution. The Resolution
dated 22-3-1994 provided that casual vacancies occurring
at a later stage in the General Category or Reserved
Category would be filled from amongst the candidates of the
respective category on merit and in that process no
candidate would be allotted a college/course below the
choice of the college or course already allotted. The High
Court observed that the resolution takes care of the
grievances of the candidates who by reason of readjustment
at the State for filling up subsequent vacancies often had to
lose the college/course of their choice but it did not address
the anomaly that arises when preparing the main merit list
as per Resolution No. 20.
State of Bihar moved this Court in appeal against the
judgment of the Patna High Court and the main ground was
that if the method suggested by the High Court was
40
followed, all students of Reserved Category who had secured
the minimum marks would have to be admitted even though
there may not be adequate number of vacancies for them.
A.M. Ahmadi, C.J. pronounced this contention to be very
genuine and laid down:
“10. Let us take a situation in which in a
particular Reserved Category there are x 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 being 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 x number of seats could then be filled up
with the four qualifying 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 x number of
candidates get seats according to merit against
the reserved seats but the remaining will also
have to be ‘adjusted’ against the open seats for
regular candidates. These will be those who are
not qualified according to general merit criteria
and so will necessarily displace 5 general
candidates who would be entitled to seats on
merit.
11. In a particular year, the number of such
candidates may be much larger and thus the
method evolved by the High Court may create
41
much hardship. The method will also not be in
tune with the principles of equality. Hence the
method evolved by the High Court will have to be
struck down.
12. If however, the word ‘adjusted ’is read to
mean considered along with the general merit list
candidates, it will lose much of its value. As per
the above illustration, the 5 candidates qualifying
on Reserved Category criteria having not secured
enough marks according to general criteria,
cannot, at all be allotted any seat in the General
Category.
13. At the same time, as pointed out above, all is
not well with the Government Circular No.20 as it
operates against the very candidates for whom
the protective discrimination is devised. The
intention of Circular No. 20 is to give full benefit
of reservation to the candidates of the reserved.
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.”
37. Learned Counsel on behalf of the petitioner in W.P.(C)
No. 297 of 2008 has relied upon the following observations
of Jeevan Reddy J., in Indra Sawhney v. Union of India
(supra.) (para 811) :
42
“811. …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.”
The said observations are not of any assistance as no MRC
candidate occupying a General Category slot is being
counted against the quota for the Reserved Category. For
example those MRC candidates belonging to the OBC
category who cut across the general qualifying standard and
are appointed to general posts are not being counted within
the 27% quota earmarked for OBCs. However, MRC
candidates who retain their reserved status and avail of the
benefit of Rule 16 (2) to occupy a reserved post are counted
against the reservation quota. When MRC candidates do not
choose to accept the General Category slot available to them
on account of their merit, but opt to occupy a slot reserved
for reservation category candidates, because that post is
more attractive, then counting him/ her against reservation
43
quota will not violate the law laid down in Indra Sawhney
(supra.).
38. In M. Nagaraj v. Union of India (2006) 8 SCC 212, a
Constitution Bench of this Court held:
“102. … Equality has two facets- “formal equality”
and “proportional equality”. Proportional equality
is equality “in fact” whereas “formal equality” is
equality “in law”. Formal equality exists in the
rule of law. In the case of proportional equality
the State is expected to take affirmative steps in
favour of disadvantaged sections of society within
the framework of liberal democracy. Egalitarian
equality is proportional equality.”
39. Article 16 (4) of the Constitution provides that nothing
in Article 16 shall prevent the State from making any
provision for the reservation of appointments or posts in
favour of any backward classes of citizens which, in the
opinion of the State, is not adequately represented in the
services under the State. Article 16(4) empowers the State to
initiate measures in order to protect and promote the
interests of backward classes (OBC, SC & ST). The
impugned measures in no way offend the equality clause
since this particular clause was inserted to safeguard the
concerns of certain classes and shield their legitimate
44
claims in the domain of public employment. On behalf of the
respondents in the appeals, it was submitted Rules 16 (2),
(3), (4) & (5) infringes Article 16(4). We do not accept this
proposition since Rule 16 (2) and the subsequent sub-rules
merely recognize and advance inter se merit among the
Reserved Category candidates in the manner that has been
demonstrated before us by Learned Solicitor General.
40. Therefore, Rule 16 protects the interests of a Reserved
Category candidate selected in the general (unreserved)
category by giving him the option either to retain his
position in the open merit category or to be considered for a
vacancy in the Reserved Category, if it is more advantageous
to him/her. The need for incorporating such a provision is
to arrest arbitrariness and to protect the interests of the
Meritorious Reserved Category candidates. If such rule is
declared redundant and unconstitutional vis-à-vis Article
14, 16 and 335 then the whole object of equality clause in
the Constitution would be frustrated and the MRC
candidates selected as per the general qualifying standard
would be disadvantaged since the candidate of his/her
45
category who is below him/her in the merit list, may by
availing the benefits of reservation attain a better service
when allocation of services is made. Rule 16 in essence and
spirit protects the pledge outlined in the Preamble of the
Constitution which conceives of equality of status and
opportunity.
Re: Question III
41. Central Administrative Tribunal, Chennai Bench in
O.A. No. 690 of 2006 and 775 of 2006 had given the
following directions -:
“(i) The impugned Rule 16 (2) is declared as valid
so long as it is confined to allocation of services
and confirms to the ratio of Paras 4 to 6 of
Anurag Patel order of the Hon’ble Apex Court.
(ii) The Supplementary List issued by the second
respondent to the first respondent dated 3.4.2007
is set aside. This would entail issue of a fresh
supplementary result from the reserved list of 64
in such a way that adequate number of OBCs are
announced in lieu of the OBCs who have come on
merit and brought under General Category. The
respondents are directed to rework the result in
such a way the select list for all the 457
candidates are announced in one lot providing for
242-general, 117 OBC, 57 SC and 41 ST and also
ensure that the candidates in OBC, SC & ST who
come on merit and without availing any
46
reservation are treated as general candidates and
ensure that on equal number of such reserved
candidates who are of merit under General
Category, are recruited for OBC, SC & ST
respectively and complete the select list for 457.
Having done this exercise, the respondents
should apply Rule 16 (2) to ensure that allocation
of the service is in accordance with rank-cum-
preference with priority given to meritorious
reserved candidates for service allocation by
virtue of Rule 16 (2) which is as per para 5 of
Anurag Patel order. The entire exercise, as
directed above, should be completed as per the
order.
(iii) Applying the ratio of Anurag Patel decision of
Hon’ble Apex Court (Paras 6 & 7), if there is need
for re-allocation of services, the respondents will
take appropriate measures to that extent and
complete this process also within two months
from the date of receipt of a copy of this order.”
The CAT had also issued the following direction as to how
the results of the UPSC examinations (2005) should have
been announced:
“52. If the UPSC had followed the decision of the
Hon’ble Apex Court cited supra and released the
select list in one go for all the 457 vacancies then
it would have ensured that the select list
contained not only 117 OBCs but also an
additional number of OBC candidates by this
number, in additional to 117 under 27%
reservation, while simultaneously be number of
general candidates recruited will be less to the
extent of OBCs recruited on merit and included
47
in the general list in the result of Civil Services
Examination, 2005. Once this order is met, the
successful candidates list will include 242
candidates in the General Category which is
inclusive of all those Reserved Category
candidates coming on merit plus 117 OBC, 57 SC
and 41 ST exclusively from these respective
reserved categories by applying relaxed norms for
them.. If such a list is subjected to Rule 16(2) of
Civil Services Examination, 2005 in present form
for making service allocation only and then
services are allotted based on Rule 16(2) in this
context, then the announcement of recruitment
result and allocation services will be both in
accordance with law as per various judgments
the Hon’ble Apex Court and in accordance with
the extent orders issued by the Respondent No.1
and also in keeping with spirit of Rule 16 (2) so
that, the meritorious reserved candidates get
higher preference service as compared to their
lower ranked counter parts in OBC, ST,SC. In
doing so, the respondents also would notice that
the steps taken by them in accordance with the
Rules 16 (3)(-)(5) are redundant once they issue
the result of recruitment in one phase, instead of
two as they have become primary cause for the
litigation and avoidable confusion in the minds of
the candidates seeking recruitment.”
42. We may refer to the brief facts in Anurag Patel v.
Uttar Pradesh Public Service Commission, (supra.),
referred to by the Tribunal. In the year 1990, the Uttar
Pradesh Public Service Commission [hereinafter ‘UPPSC’)
conducted a combined State Services/Upper Subordinate
48
Services examination for selection to various posts such as
Deputy Collectors in U.P. Civil (Executive) Services, Deputy
Superintendent of Police in U.P. Police Services, Treasury
Officers/Account Officers in U.P. Finance and Accounts
Services, Sales Tax Officers, Assistant Regional Transport
Officers, District Supply Officers and various other posts.
Pursuant to the notification issued by the UPPSC, a large
number of candidates appeared for selection. The UPPSC
published the list of selected candidates in August, 1992.
Altogether 358 posts in various categories were filled up.
The candidates belonging to the Backward Classes were
entitled to get reservation in selection in respect of 57 posts
in various categories, out of a total number of 358 posts.
The posts in each category of service were filled up by choice
of the candidate and the person who secured higher
position in the merit list opted for U.P. Civil (Executive)
Service and those who could not get the higher and
important category of service had to be satisfied with posts
in services of lesser importance. In each category of service,
posts were reserved for SCs/STs, Backward Classes and
handicapped persons etc. The UPPSC treated the candidates
49
belonging to SC/ST and Backward Classes who got
selection to the seats (posts) earmarked for general
candidates as candidates in the General Category and
allotted them to various services depending upon the rank
secured by them in the select list. SC/ST and BC
Candidates, who got lower rank in merit lists of general
category candidates got posting in lesser important services.
However, the SC/ST and BC Candidates who got selected to
posts reserved in each category even though they secured
lesser rank in the whole list got appointed to reserved posts
in each category. This mode of appointments caused serious
injustice to candidates who initially applied in the Reserved
Category, yet they got selected to the general seats (posts) as
they were meritorious and were entitled to get selected along
with the general candidates. However, their merit and ability
did not pay any dividends as they got appointment only to
lesser important posts. This Court held:
“4. ... The authorities should have compared the
candidates who are to be appointed on general
merit as also candidates who are to be appointed
as against the reserved vacancies and while
making appointments the inter se merit of the
reserved candidates should have been considered
and they must have been given the option
50
treating each service separately. As this exercise
was not followed, less meritorious candidates got
appointment to higher posts whereas more
meritorious candidates had to be satisfied with
posts of lower category.
5. …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
candidates 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
select list and preference of a person higher in the
select list will be seen first and the appointment
given accordingly, while preference of a 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.
6. If these candidates who got selection in the
General Category are allowed to exercise
preference and then are appointed accordingly
the candidates who were appointed in the
reserved categories would be pushed down in
their posts and the vacancies thus left by the
General Category candidates belonging to
Backward Classes. There will not be any change
in the total number of posts filled up either by the
General Category candidates or by the Reserved
Category candidates.”
51
43. The decision in Anurag Patel (supra.) rectified the
anomaly which had occurred since the U.P.P.S.C. 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
principles outlined in Articles 14 and 16 of the Constitution.
This Court had reached such conclusion to ensure that
allocation of service is in accordance with the rank-cum-
preference basis with priority given to meritorious candidates
for service allocation.
44. The decision in Anurag Patel (supra.) in turn referred to
the earlier decision in Ritesh R. Sah v. Dr. Y.L.Yamul and
Others (supra.). 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 the UPSC. The ultimate aim of
52
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 candidates who secure admission in a
particular educational institution is of a homogeneous
nature. However, the benefits accruing from successfully
qualifying in the UPSC examination are of a varying nature
since some services are coveted more than others.
45. The order of the CAT is valid to the extent that it relied
on the ratio propounded by this Court in Anurag Patel v.
Uttar Pradesh Public Service Commission (supra.). Even
though that decision had in turn relied on the verdict of this
Court in Ritesh R. Sah v. Dr. Y.L.Yamul and Others,
(supra.), the latter case is distinguishable from the present
case with respect to the facts in issue. However, we cannot
approve of the conclusions arrived at in the Central
Administrative Tribunal order as it failed to take note of the
unique characteristics of the UPSC examinations.
53
46. Reference was also made to R.K. Sabharwal v. State
of Punjab, (1995) 2 SCC 745, this Court had declared that
the State shall not count a Reserved Category candidate
selected in the open category against the vacancies 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 counsels’ 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 Engineers in the Irrigation Department of
State of Punjab. The decision was rendered in the context 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
54
or removal of a person belonging to the respective category.
Unlike the examinations conducted by UPSC which includes
21 different services this case pertains to a single service
and therefore the same cannot be compared with the
examination conducted by UPSC. The examination
conducted by UPSC is very prestigious and the top-most
services of this nation are included in this examination. In
this respect, it is obvious that there is fierce competition
amongst the successful candidates as well to secure
appointments in the most preferred services. This judgment
is strictly confined to the enabling provision of Article 16 (4)
of the Constitution under which the State Government has
the sole power to decide whether there is a requirement for
reservations in favour of the backward class in the services
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 the UPSC. Therefore, the
fact-situation in R.K. Sabharwal’s case is clearly
distinguishable.
55
47. The proviso to Rule 16 (1) and Rule 16 (2) operate in
different dimensions and it is untenable to argue that these
provisions are contradictory or inconsistent with each other.
As mentioned earlier, in the examination for the year 2005,
32 reserved candidates (31 OBC candidates and 1 SC candi-
date) qualified as per the general qualifying standard [Rule
16 (1)]. These MRC candidates did not avail of any of the
concessions and relaxations in the eligibility criteria at any
stage of the examination, and further they secured enough
marks to place them above the general qualifying standard.
MRC candidates are entitled to one of the two posts - one
depending on their performance in the General list and oth-
er depending on their position in the Reserved List. When
MRC candidates are put in the General list on their own
merit they do not automatically relinquish their reserved
status. By the operation of Rule 16 (2), the reserved status
of an MRC candidate is protected so that his/ her better
performance does not deny such candidate the chance to be
allotted to a more preferred service. Where, however, an
MRC is able to obtain his preferred post by virtue of his
56
/her ranking in the General List, he/ she is not counted as
a Reserved Candidate and is certainly not counted amongst
the respective reservation quota.
48. We must also remember that affirmative action mea-
sures should be scrutinized as per the standard of propor-
tionality. This means that the criteria for any form of differ-
ential treatment should bear a rational correlation with a le-
gitimate governmental objective. In this case a distinction
has been made between Meritorious Reserved Category can-
didates and relatively lower ranked Reserved Category can-
didates. The amended Rule 16(2) only seeks to recognize the
inter-se merit between these two classes of candidates for
the purpose of allocation to the various civil services with
due regard for the preferences indicated by the candidates.
49. With regard to the specific characteristics of the UPSC
examinations we hold that Reserved Category candidates
(belonging to OBC, SC or ST categories among others) who
are selected on merit and placed in the list of general/unre-
57
served Category candidates can choose to migrate to the re-
spective reserved categories at the time of allocation of ser-
vices. Such migration is enabled by Rule 16 (2) of the Civil
Services Examination Rules, which is not inconsistent with
Rule 16 (1) of the same or even the content of Articles 14, 16
(4) and 335 of the Constitution of India.
50.We sum up our answers-:
i) MRC candidates who avail the benefit of Rule 16 (2) and
adjusted in the reserved category should be counted as part
of the reserved pool for the purpose of computing the aggre-
gate reservation quotas. The seats vacated by MRC candi-
dates in the General Pool will be offered to General category
candidates.
ii) By operation of Rule 16 (2), the reserved status of an
MRC candidate is protected so that his/ her better perfor-
mance does not deny him of the chance to be allotted to a
more preferred service.
58
iii)The amended Rule 16 (2) only seeks to recognize the
inter se merit between two classes of candidates i.e. a) meri-
torious reserved category candidates b) relatively lower
ranked reserved category candidates, for the purpose of al-
location to the various Civil Services with due regard for the
preferences indicated by them.
iv)The reserved category candidates “belonging to OBC,
SC/ ST categories” who are selected on merit and placed in
the list of General/Unreserved category candidates can
choose to migrate to the respective reserved category at the
time of allocation of services. Such migration as envisaged
by Rule 16 (2) is not inconsistent with Rule 16 (1) or Articles
14, 16 (4) and 335 of the Constitution.
51. In view of the above, the civil appeals are allowed and
the judgment of the Madras High Court is set aside. The
writ petitions challenging the validity of Rule 16(2) are dis-
missed. The validity of Rule 16 of Civil Service Examination
Rules 2005 (vide notification dated 4.12.2004) is upheld.
There will be no order as to costs.
59
……….………………………..
CJI
(K.G. BALAKRISHNAN)
………………. ..………………….
J.
(S.H. KAPADIA)
…………………………….……..J.
(R.V. RAVEENDRAN)
………………………………… ..J.
(B. SUDERSHAN REDDY)
………..………………………….J.
(P. SATHASIVAM)
NEW DELHI
MAY 07, 2010
60
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