Madhya Pradesh High Court
Pushpendra Kumar Patel vs High Court Of M.P. on 2 January, 2023
Author: Sheel Nagu
Bench: Sheel Nagu, Virender Singh
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
WP. No.8750 of 2022
BETWEEN:-
1. PUSHPENDRA KUMAR PATEL S/O SHRI
DEVRAJ PATEL, AGED ABOUT 26 YEARS,
OCCUPATION: STUDENT, R/O VILLAGE
AND POST DHANGAN, TEHSIL MAUGANJ
DISTRICT- REWA (MADHYA PRADESH)
2. RAJEEV SINGH S/O SHRI INDRA JEET
SINGH, AGED ABOUT 25 YEARS,
OCCUPATION: STUDENT, R/O VILLAGE
PIPRACHHA, POST LAULACHH, TEHSIL
KOTAR, DISTRICT SATNA (MADHYA
PRADESH)
3. PRADEEP KUMAR S/O SHRI BIHARILAL,
AGED ABOUT 28 YEARS, OCCUPATION:
STUDENT, R/O VILLAGE MAGRONI,
TEHSIL NARWAR, DISTRICT SHIVPURI
(MADHYA PRADESH) PRESENTLY R/O 128,
ADHARTAL, JABALPUR (MADHYA
PRADESH)
4. ANKIT PATEL S/O SHRI JAGDISH PATEL,
AGED ABOUT 30 YEARS, OCCUPATION:
STUDENT R/O 155/1, SANGAM COLONY,
UKHRI ROAD, BALDEOBAGH, JABALPUR
(MADHYA PRADESH)
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5. AMIT KUMAR KIRAR S/O SHRI KARAN
SINGH KIRAR, AGED ABOUT 32 YEARS,
OCCUPATION: PRIVATE JOB, R/O WARD
NO 25, KANCHAN NAGAR, RASULIYA,
DISTRICT HOSHANGABAD (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI RAMESHWAR SINGH THAKUR, SHRI
VINAYAK PRASAD SHAH, SHRI UDAY KUMAR, SHRI
ANJANI KUMAR KORI, SHRI RAM BHAJAN LODHI,
SHRI SANJAY SINGH, SHRI RAJVARDHAN DUTT
PARARHA, SHRI PARMA NAND SAHU, SHRI K.K.
KUSHWAHA, SHRI RAJ BAHORAN SINGH, SHRI
GOPAL SHRIVAS, SHRI OM PRAKASH PATEL, SHRI
ROOP SINGH MARAVI AND SHRI RAVINANDAN
DWIVEDI, ADVOCATES)
AND
1. HIGH COURT OF M.P. THROUGH
REGISTRAR GENERAL PRINCIPAL SEAT
AT JABALPUR (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH, THROUGH
PRINCIPAL SECRETARY, DEPARTMENT
OF LAW AND LEGISLATION VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
3. PRINCIPAL SECRETARY, GENERAL
ADMINISTRATION DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
....RESPONDENTS
(RESPONDENT NO.1/HIGH COURT BY SHRI PIYUSH
DHARMADHIKARI AND SHRI ANOOP NAIR,
ADVOCATES)
(STATE BY SHRI ASHISH ANAND BARNARD AND
SHRI BHARAT SINGH, ADDITIONAL A.G.
SHRI ANSHUL TIWARI, ADVOCATE FOR
INTERVENOR)
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Reserved on : 03.08.2022
Pronounced on : 02.01.2023
----------------------------------------------------------------------------------------
This petition having been heard and reserved for orders, coming
on for pronouncement this day, Hon'ble Shri Justice Sheel Nagu
pronounced the following:
ORDER
Instant petition has been filed under Article 226 of the Constitution by five petitioners, who are aspirants for appointment to various posts of Stenographer Grade-2, Stenographer Grade-3, Stenographer Grade-3 (Court Manager Staff), Assistant Grade-3 and Assistant Grade-3 (English Knowing) in District Judiciary Establishment, which were advertised by High Court of M.P. vide advertisement dated 12.11.2021 (Annexure P/3). The prayer made in this petition is as follows:-
"7.1 Hon'ble Court may kindly be pleased to call for entire record pertaining to the subject matter of instant petition for kind perusal and ready reference.
7.2 Hon'ble Court may kindly be pleased to set-aside impugned result (Annexure P/1) and to direct the respondent no.1 to rework and issue fresh result by considering the M.R.C. in unreserved (U.R.) category, in the interest of justice. 7.3 Hon'ble Court may kindly be pleased to direct the respondent no.1 to strictly follow the law laid down in letter & spirit in the case of Indra Sawhney & others vs. Union of India & others, reported in 1992 Suppl.(3) SCC 217 and the judgment given in the case of Saurav Yadav & others vs. State
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of Uttar Pradesh reported in (2021) 4 SCC 542 as well as recent judgment of this Hon'ble High Court passed in WP. No.807/2021, while reworking and issuing fresh result, in the interest of justice.
7.4 Any other relief which deems fit and proper looking to the facts and circumstances of the case may also be awarded in favour of the petitioners with cost of the petition."
2. Learned counsel for rival parties are heard on the question of admission so also on final disposal.
CONTENTIONS
3. Learned counsel for the petitioners submits that all the petitioners belong to OBC category and in that capacity appeared in the Preliminary Examination advertised vide Annexure P/3. It is urged that despite having secured more marks than the passing marks of 45% prescribed in the Preliminary Examination, petitioners have not been able to secure a berth in the list of qualified candidates in Preliminary Examination result vide Annexure P/1.
3.1 The grievance as projected by learned counsel for petitioners is that despite having secured more marks than the cut off marks (marks secured by last candidate declared qualified) in the list of qualified unreserved category candidates, the petitioners, who belong to OBC category, have not been allowed to migrate from OBC list to the unreserved category qualified candidates list. In other words, it is submitted that the right of migration of more meritorious petitioners-OBC candidates, from reserved to unreserved category list has been denied to the petitioners. For this
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purpose, reliance is placed on decision of Indira Sawhney (supra), Saurav Yadav (supra), decision of Coordinate Bench of this Court rendered on 07.04.2022 in WP. No.542/2021 (Kishor Choudhary vs. State of M.P. & Another) vide Annexure P/2 and the provisons of M.P. Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan Adhiniyam, 1994 (for brevity "Act of 1994") and M.P. District Court Establishment (Recruitment and Conditions of Service Rules, 2016 (for brevity "Rules of 2016").
4. Per contra, learned counsel for the respondents opposing the petition submits that the marks or merit ranking secured in Preliminary Examination are not counted for preparing the final select list which is drawn solely based on performance of candidates in the Main Examination. It is submitted that Preliminary Examination is meant only for shortlisting large number of candidates, to a manageable number for being called for Main Examination. Thus, it is urged that right to migration can be availed when select list is prepared after the Main Examination and interview, if any.
4.1 Learned counsel for the respondents submits that the provisions of Section 4(4) of Act of 1994 was subjected to judicial scrutiny before Coordinate Bench of this Court in (2006) 3 MPHT 477 (Hemraj Rana vs. State of M.P.). It was held therein that the concept of migration from reserved to unreserved select list can be invoked only at the stage of final selection and not at the stage of result of Preliminary Examination.
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5. Before proceeding with the exercise of adjudication, it would be apt to reproduce certain relevant statutory provisions and conditions in the advertisement (Annexure P/3):-
"Section 4(4) of Act of 1994 [Fixation of percentage for reservation of posts and standard of evaluation].
(1) ******* ******
******
(2) ******* ******
******
(3) ******* ******
******
(4) If a person belonging to any of the categories mentioned in sub-section (2) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-
section (2).
Rule 12 of Rules of 2016-Mode of Selection:
(a) ******* ****** ******
(b) ******* ****** ******
(c) ******* ****** ******
(d) ******* ****** ******
(e) ******* ****** ******
(f) The Examination Cell, on the directions of Examination Committee, may hold screening test, which may also be held online, prior to main written examination examination if the ratio of number of eligible candidates and the number of posts is inordinately high in view of Examination Committee.
(g) ******* ****** ******
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Rule 18 of Rules of 2016-Provision for reservation of Appointment-
(1) Posts shall be reserved for the members of the Schedule Castes, Schedule Tribes and for Other Backward Classes to such extent and in such manner as may be specified by the Government. The reservations for these categories shall be applicable only vertically :
Provided that reservation on the district level posts shall be given as per the district wise reservation roaster, issued by the General Administration Department. (2) A total 6 percent Horizontal reservation shall be given to persons with physical impairment, with 2 percent each for hearing, visually and orthopedically impaired:
Provided that the reservation shall be made as per the posts identified and marked by the High Court for specially abled persons.
(3) As per the provision of The Madhya Pradesh Civil Services (Special Provisions for Appointment of Women) Rules, 1997, 30 percent horizontal reservation shall be applicable for women candidates.
(4) Appointments shall be made strictly in accordance with the roster prescribed separately for direct recruitment and promotion.
(4-a) 20% posts mentioned in Schedule-I shall be reserved and filled-up from the candidate who is/was working for not less than 5 years on contractual basis, in the same category or higher category of post, in the service of High Court or District Courts Establishment. The said appointment shall be through selection/suitability test with minimum qualifying marks for candidates belong to Unreserved Categories as 55% and for candidates belonging to OBC, SC/ST Categories as 50%.
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(5) Verification of percentage of physical impairment in case of "Specially abled" candidates shall be verified by the Medical Board.
(6) In the event of non-availability of the eligible and suitable candidates amongst the Other Backward Castes, Scheduled Castes and Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure, and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse."
Relevant extract of Advertisement
e/;izns'k mPp U;k;ky;] tcyiqj
@@foKkiu@@
dzekad%& 402@ijh{kk@21 fnukad%& 12@11@2021
****** ****** ******
egRoiw.kZ fcUnq&
¼1½ laiw.kZ p;u@HkrhZ izfd;k] fjDr inksa gsrq vgZrk,sa@vugZrk,sa] vH;fFkZ;ksa dk p;uf/kdkj vkfn ds laca/k esa e/;izns'k ftyk U;k;ky; LFkkiuk ¼HkrhZ o lsok dh 'krsZ½ fu;e &2016 o vU; lacaf/kr fu;e o izko/kku ykxw gksaxsA [k.M&^^v^^ ¼,d½&izR;sd izoxZ ds fu;fer fjDr inksa dh la[;k %& ****** ****** ****** ¼nks½ inksa dh vgZrk;sa %& ****** ****** ****** ¼rhu½&vkj{k.k laca/kh Vhi %& ****** ****** ****** ¼pkj½&p;u ,oa vH;fFkZrk ds laca/k esa vU; vko';d vgZrk ,oa tkudkjh %& ¼1½ ****** ****** ****** ¼2½ ****** ****** ******
- 9 -
¼3½ ****** ****** ****** ¼4½ ****** ****** ****** ¼5½ ****** ****** ****** ¼6½ ****** ****** ****** ¼7½ ****** ****** ****** ¼8½ ****** ****** ******
¼9½ e/;izns'k flfoy lsok ds ¼lsok dh lkekU; 'krsZ½ fu;e] 1961 o e/;izns'k ftyk U;k;ky; LFkkiuk ¼HkrhZ os lsok dh 'krsZa½ fu;e&2016 ds izko/kkuksa ,oa le;≤ ij tkjh la'kks/kuksa ds varxZr vugZrk vkfn ds fu;e ykxw gksaxsA [k.M&^^l^^ ¼,d½ HkrhZ dh ;kstuk%& lHkh inksa dh HkrhZ gsrq ijh{kk nks pj.kksa esa gksxh %& 1- izkjafHkd ijh{kk ¼vkWuykbu½ 2- eq[; ijh{kk ¼nks½ izkjafHkd ijh{kk ¼vkWuykbu½ ¼100 vad½ izFke pj.k esa izkjafHkd ijh{kk ^^vkWuykbu^^ vk;ksftr dh tk,xh tks fd eq[; ijh{kk ds fy;s vH;fFkZ;ksa dh la[;k dks lhfer djus ds fy, dsoy vuqoh{k.k ¼screening½ ijh{kk gksxhA izkjafHkd ijh{kk ds izkIrkdksa dks vafre p;u esa ugh tksM+k tk,xkA ¼rhu½ izos'k i= %& ****** ****** ****** ¼pkj½ ijh{kk dsUnz %& ****** ****** ****** ¼ikap½ vkWuykbu izkjafHkd ijh{kk dk ikB~;dze %& ****** ****** ****** ¼N%½ vko';d lwpuk %& ****** ****** ****** ¼lkr½%&vkWuykbZu izkjafHkd ijh{kk dk ifj.kke%&
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1- mDr in dh izkjafHkd ijh{kk ds cgqfodYih; iz'uksa ds izLrkfor vkn'kZ mRrj ftudk ijh{kkQy rS;kj fd;s tkus gsrq iz;ksx fd;k tkuk vk'kf;r gS] mls e/;izns'k mPp U;k;ky; dh osclkbZV ij ijh{kk ds i'pkr~ bl lwpuk ds lkFk iznf'kZr fd;k tkosxk fd ;fn dksbZ vH;FkhZ izLrkfor cgqfodYih; iz'uksa ds vkn'kZ mRrjksa ds lac/a k esa vkifRr nsuk pkgrk gS] rks og vko';d :i ls mDr lwpuk izdk'ku ds lkr ¼07½ fnuksa ds Hkhrj jftLVªkj ¼ijh{kk½] iz'kklfud Hkou] e0iz0 mPp U;k;ky;] tcyiqj ds inuke ls lacksf/kr] fyf[kr ,oa gLrk{kfjr i= ds ek/;e ls vius uke] vkosnu dzekad vkfn ds fooj.k ,oa Jksr bR;kfn ftl ij vk/kkfjr gksdj vH;FkhZ us vkifRr izLrqr fd gS] dh Lo&gLrk{kfjr o lR;kfir QksVks izfrfyfi lfgr Mkd ds ek/;e ls ;k mPp U;k;ky;] tcyiqj ds vkod lsD'ku esa tek dj izLrqr djsxkA fu/kkZfjr vof/k esa izkIr vkifRr;@vkosnuksa ij fopkj djus ds i'pkr~ vafre vkn'kZ mRrj rS;kj fd;k tk;sxk] ftlds vk/kkj ij lsok iznkrk ds ek/;e ls izkjafHkd ijh{kk dk ifj.kke ?kksf"kr fd;k tk;sxkA fu/kkZfjr vof/k ;k ijh{kk ifj.kke ? kksf"kr gks tkus ds i'pkr~ Hkys gh foyac Mkd foHkkx }kjk fd;k x;k gksA bZ0 esy }kjk izkIr vkifRr;ksa ij fopkj ugha djrs gq, uLrhc/n dj fn;k tkosxkA 2- izkjafHkd ijh{kk dk ifj.kke vH;FkhZ ds izkIrkadksa ds esfjV ds vk/kkj ij cuk;k tkosxk] ftlesa izR;sd Js.kh dh esfjV esa 1%3 ¼izfr in ds fy;s 03 vH;FkhZ½ ds vuqikr esa vH;fFkZ;ksa dks eq[; ijh{kk ds fy;s] U;wure vad ds v/khu] lQy ?kksf"kr fd;k tkosxk rFkk leku vad izkIr djus okys vH;fFkZ;ksa dks Hkh lQy ?kksf"kr fd;k tkosxkA ijh{kk esa lkekU; oxZ ,oa vU; fiNM+k oxZ ds vH;fFkZ;ksa dks U;wure 45 izfr'kr] vuqlwfpr tkfr ,oa vuqlwfpr tutkfr oxZ ds vH;fFkZ;ksa dks U;wure 40 izfr'kr] vad izkIr djuk vko';d gSA [k.M & ^^n^^ ¼,d½& eq[; ijh{kk %& ******* ****** ****** ¼nks½& eq[; ijh{kk dsUnz %& ******* ****** ****** ¼rhu½& eq[; ijh{kk dk ikB~;dze %&
- 11 -
******* ****** ****** ¼pkj½& eq[; ijh{kk dh mRrjiqfLrdkvksa dk ewY;kadu %& ******* ****** ****** ¼ikap½& eq[; ijh{kk dk ifj.kke %& 'kh?kzys[kd xzsM&2 'kh?kzys[kd xzsM&3] 'kh?kzys[kd xzsM&3 ¼dksVZ eSustj LVkQ½ dk ifj.kke vH;FkhZ }kjk nh xbZ ojh;rk] mDr in gsrq mldh 'kS{kf.kd@rduhdh ;ksX;rk ds v/;/khu cuk;k tkosxkA vU; inksa dh eq[; ijh{kk dk ifj.kke vH;FkhZ ds izkIrkadksa o Js.khokj esfjV ds vk/kkj ij cuk;k tkosxkA leku vad gksus dh n'kk esa vf/kd mez ds vH;FkhZ dks ojh;rk nh tkosxkhA vafre p;u lwph mPp U;k;ky; dh osclkbZV ij izdkf'kr dh tkosxhA
6. In the backdrop of aforesaid statutory provisions, judicial pronouncements and terms and conditions of advertisement (Annexure P/3), the questions that fall for consideration before this Court are as follows:-
(i) Whether migration of a reserved category candidate from her/his category to unreserved category is permissible in law at the stage of Preliminary Examination result, when marks of such examination are not added for preparing select list from which appointment is made ?
(ii) If yes, then to what relief petitioner is entitled to ?
FINDINGS
7. It is not disputed at the bar that the recruitment in question was conducted under the Rules of 2016. Rule 12 governs the mode of selection. Clause (f) of Rule 12 vests discretion upon the Examining Committee to hold preliminary/screening test prior to main written
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examination in case number of eligible candidates applying is inordinately high. Whereas Rule 18 of Rules of 2016 relates to reservation in appointment, but does not deal with the concept of migration/mobility of reserved category candidate to unreserved category list.
7.1 Thus, this Court has to fall back upon Act of 1994, which was promulgated by State Legislature by invoking enabling provision under Article 16(4) of the Constitution, which provides for reservation in vacancies in public service to the posts reserved for SC, ST and OBC category.
7.2 Section 4(1) of Act of 1994 prohibits filling up of posts reserved for SC, ST and OBC category unless otherwise provided in Act of 1994. While Section 4(2) provides for 16%, 20% and 14% of vacancies to be reserved for SC, ST and OBC respectively in all classes of posts filled at the stage of direct recruitment in public service under the State. Pertinently, 14% reservation provided for OBC category has since been enhanced to 27% by 2019 amendment, which is sub judice before this Court, but since the said issue is not involved herein, the same is not being discussed.
7.3 Section 4(3) of Act of 1994 enables the Competent Authority to carry forward unfilled vacancies reserved for SC, ST and OBC category to the next or subsequent recruitment year. Clause (c) of Section 4(3) has been added to enable the Competent Authority to fill up the reserved
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category unfilled carry forward vacancies without being subjected to 50% ceiling limit.
7.4 Section 4(4) of Act of 1994, which is relevant to the issue involved herein confers right upon a reserved category candidate, who has secured more marks than the last unreserved candidate, to migrate from reserved category to unreserved category list. Such migration is stipulated to take place without causing any depletion in the reserved category quota.
7.5 Since none of other provisions of Act of 1994 are relevant to the issue involved herein, the same are not being discussed.
7.6 The issue of reserved category candidate more meritorious than unreserved category candidate, migrating from reserved category to unreserved category list has been subjected to judicial scrutiny of the Rajasthan High Court especially in a recent decision in the case of Sunita Meena vs. Rajasthan High Court & Another rendered by Division Bench in CWP. No.1244/2022 on 20.04.2022. In Sunita Meena (supra) after taking inspiration from the decisions rendered in Saurav Yadav (supra) and AIR 1997 SC 303 (Chattar Singh & Others vs. State of Rajasthan & Others), Division Bench of Rajasthan High Court held thus:-
"34. The decision of the Supreme Court in the case of Saurav Yadav (supra) has now settled the controversy with regard to principles applicable in the matter of vertical and horizontal migration while preparing merit list, that being a case specific to claim of OBC (female) securing higher marks than the last candidate appointed in general category of general (female). In
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the light of consistent view by this Court in series of decisions cited hereinabove, the rule of migration of reserved category candidate from his/her own category to general category to be placed in the merit list would be applicable while preparing final merit list and not when the exercise of shortlisting of candidates categorywise is done at the stage of screening by way of Preliminary Examinations, as has been done in the present case. Issue whether the principle of migration would apply even at the stage of shortlisting the candidates for being admitted to Main Examination was neither raised nor decided in the case of Saurav Yadav (supra). Learned counsel for the petitioner could not bring to our notice any authoritative pronouncement of the Supreme Court in this regard. Therefore, we have no reason to take a different view than what has been taken in the cases of Dharamveer Tholia (supra), Hanuman Jat (supra), Megha Sharma (supra), Khushi Ram Gurjar (supra) and Garima Sharma (supra) which are the judgments rendered by taking into consideration the scheme of examination and governing rules of recruitment analogous to those applicable in the case in hand.
35. Resultantly, the petition being sans substratum is liable to be and is accordingly dismissed."
7.7 Pertinently, in the case of Sunita Meena (supra) the challenge was to the merit list prepared category wise after Preliminary Examination held as first stage of recruitment process for appointment to the post of Civil Judge Entry Level. The arguments raised in Sunita Meena (supra) was the same i.e. reserved category candidate having secured more marks in Preliminary Examination than the cut off marks secured by the unreserved category candidate, deserves to migrate from the reserved category list to unreserved category list on the basis of merit.
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7.8 It may not be out of place to mention here that the rules, regulations and terms and conditions of the advertisement before the Rajasthan High Court in the case of Sunita Meena (supra) were similar to the rules, regulations and terms and conditions of the advertisement herein.
7.9 The Division Bench of Rajasthan High Court in Sunita Meena (supra) rejected the petitions of reserved category candidates after being persuaded by decision of Apex Court in Chattar Singh (supra) and after distinguishing Saurav Yadav (supra) on facts.
7.10 After having carefully scrutinized the decisions of Apex Court in Chattar Singh (supra), this Court is unable to persuade itself that the issue involved either before Rajasthan High Court in Sunita Meena (supra) or in the present case can be said to be covered by law laid down by Apex Court in Chattar Singh (supra).
7.11 Chattar Singh (supra) was a case arising from the State of Rajasthan, involving legality, validity and interpretation of proviso to Rule 13 of Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962 (for brevity "Rules of 1962"), which empowered the Rajasthan Public Service Commission to reduce the cut off marks upto 5% where adequate number of SC/ST candidates are unavailable in the list of qualified candidates prepared after Preliminary Examination. When the said case of Chattar Singh (supra) was taken up by the Division Bench of Rajasthan High Court, both the Hon'ble Judges differed on the interpretation of proviso to Rule
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13 of Rules of 1962 as to whether the privilege of reduction of cut off marks by 5% would be available only to SC/ST or also to OBC? Consequently, matter was referred to Third Judge, who concurred with the view that the benefit of reduction of 5% in cut off marks under proviso to Rule 13 of Rules of 1962 was available only to SC/ST and not to OBC. Thereafter, when the case of Chattar Singh reached the Apex Court, the majority view of Rajasthan High Court was approved and the concession under proviso to Rule 13 of Rules of 1962 was held to be available to SC/ST but not to OBC.
8 The factual matrix attending Chattar Singh (supra) reveal that the issue of migration of more meritorious reserved candidate from reserved category list to unreserved category list prepared pursuant to Preliminary Exam stage was never raised and thus not decided.
8.1 In Chattar Singh (supra), the Apex Court, however, rendered certain observations as regards the object of holding Preliminary Examination. Relevant extract of said decision in Chattar Singh (supra) as follows:-
"8. The Preliminary Examination will consist of two papers i.e., one Compulsory Paper and one Optional Paper, which will be objective type and would carry a maximum of 400 marks in the subjects mentioned in Sections 'A' and 'B'. The Examination is meant to serve as a screening test only. The marks obtained in the Preliminary Examination by the candidates, who are declared qualified for admission to the Main Examination will not be counted for determining their final order of merit.................
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14. ............Marks obtained in the Preliminary Examination by a candidate would not be counted for the purpose of Main Examination to determine final order of merit....................
16..........The object of screening test is to eliminate unduly long number of persons to appear for Main Examination............"
8.2 Thus, it is obvious from close scrutiny of facts in Chattar Singh (supra) that the said decision is not a precedent in regard to the concept of migration of a more meritorious reserved category candidate to the unreserved category select list of Preliminary Exam and thus is of no avail to the petitioner.
9. Now, coming to other decision of Apex Court rendered in Saurav Yadav (supra), it is obvious from close scrutiny of the same that the said decision rendered by Three Judge Bench of Apex Court dealt with controversy as to what is the correct method of filling quota reserved for women candidates by means of horizontal reservation and whether the State of U.P. was correct in applying the Rules of Reservation denying benefit of migration to more meritorious OBC women candidates by adjusting such candidates against unreserved women vacancies or not ?
9.1 Pertinently, in Saurav Yadav (supra), the Apex Court was dealing with the select list prepared not after the Preliminary Examination but after main/sole examination for appointment to the post of Police Constable. Thus, the question involved herein, as to whether the concept of migration can be introduced and invoked as a matter of right at the
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time of declaration of result of Preliminary Examinations, was neither raised nor decided in Saurav Yadav (supra).
9.2 Whereas in the instant case, the stage at which right of migration is sought to be invoked by reserved category candidates is the declaration of result of Preliminary Examination and, therefore, Saurav Yadav (supra) does not answer the question involved in the present case and as such is of no avail to the petitioners.
10. Pursuant to aforesaid discussion where this Court has found that the question involved herein was neither involved in Chattar Singh (supra) nor in Saurav Yadav (supra), this Court while concurring with the final verdict is in respectful disagreement with the decision of Division Bench of Rajasthan High Court in Sunita Meena (supra) to the extent it relies upon the decision of Apex Court in Chattar Singh (supra) for deciding the said issue of migration/mobility at the stage of Preliminary Exam.
11. The decision, which is closest to the facts of the instant case is that of Coordinate Bench of this Court in Hemraj Rana (supra). In Hemraj Rana (supra), this Court while interpreting Section 4(4) of Act of 1994 held thus:-
"7. In absence of any specific provision either in the Adhiniyam of 1994 or the Rules of 2001 made thereunder, providing that the principle in Sub-section (4) of Section 4 of the Adhiniyam of 1994 will equally apply to Preliminary Examinations conducted for the purpose of screening candidates for the Main Examination, the MP PSC would be well within its discretion to
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decide as to what would be the procedure which should be followed in the Preliminary Examination for screening candidates for the Main Examination. So long as such procedure followed by the MP PSC is not contrary to Article 16(4) of the Constitution, this Court cannot hold that the procedure followed by the MP PSC is ultra vires."
12. Another Coordinate Bench of this Court in a recent decision rendered in Kishor Choudhary (supra) after taking note of decision in Hemraj Rana (supra) declined to strike down the constitutionality of Section 4(4) of Act of 1994. However, while doing so the Coordinate Bench in Kishor Choudhary (supra) approved the contention of petitioner therein that the principle of migration should be applied at all stages of selection including that of preliminary exam stage, which is evident from the following paragraphs :-
"We are of the considered view that the principles laid down by the Supreme Court in Indra Sawhney (supra) can be translated into reality only when reserved category candidate secured equal or more marks with U.R. category candidate is given berth in U.R. category in all stages of selection including preliminary and the Main Examination. Any other interpretation will defeat the purpose and the constitutional scheme flowing from Article 14 and 16 of the Constitution of the India. There is no justifiable reason for depriving a meritorious reserved category candidate who has competed with UR category candidate and secured same or more marks than him from being treated as U.R. candidate."
12.1 While so holding, as aforesaid, the Coordinate Bench in Kishor Choudhary (supra) relied upon Indira Sawhney (supra) and Saurav Yadav (supra). As regards Saurav Yadav (supra), this Court in above
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paragraphs has already held that Saurav Yadav (supra) does not lay down the law in respect of issue of migration at the preliminary exam stage (which is meant only to shortlist the number of candidates and not evaluate merit of candidates). The said decision in Saurav Yadav (supra) though relates to migration but qua horizontal (not vertical) reservation and that too at the stage of final selection but not at preliminary exam stage.
13. As regards the case of Indira Sawhney (supra), the only finding/observation which relates to the concept of migration/mobility of reserved category candidate to unreserved category list on the strength of merit alone is extracted below:-
Para 94A.".............In this connection, it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.
95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture:
all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal
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reservations. Horizontal reservations cut across the vertical reservations - what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be - indeed cannot be-applicable to exemptions, concessions or relaxations, if any, provided to 'Backward Class of Citizens' under Article 16(4)."
13.1 Apart from the aforesaid extracted paragraphs in Indira Sawhney (supra), there is no reference made in any other part of judgment of Indira Sawhney (supra) about migration. Further in Indira Sawhney (supra), the Apex Court, though was not faced with the situation of application of rule of migration at the stage of Preliminary Examinations, but a close scrutiny of attending factual matrix reveal that the concept of reservation under Article 16(1) vis-a-vis 16(4) of the Constitution and the principle of migration was discussed by the Apex Court in context of persons selected (finally selected) on merits.
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13.2 More so, the Coordinate Bench in the case of Hemraj Rana (supra) held that no fault can be found with the Examining Body denying the right of migration at the stage of Preliminary Exam result in the absence of any enabling statutory provision, provided such arrangement does not come in conflict with the object behind Article 16(4) of Constitution.
13.3. In the instant case, there is no statutory provision providing for or restricting the application of principle of migration at any particular stage of selection process. However, the advertisement which was issued vide Annexure P/3 expressly provided that the right to migrate shall not be available at the stage of result of Preliminary Examination but instead shall be made available at the time of result of Main Examination.
13.4 The only aspect which now needs contemplation is as to whether this arrangement made by the advertisement runs contrary to the object behind Article 16(4) or not ? For ready reference and convenience, Article 16 of the Constitution is reproduced below:-
"16. Equality of opportunity in matters of public employment.--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that
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State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. (4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination or any local or other authority within its territory, any requirement as to residence within that state. (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category."
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14. Article 16(4) of the Constitution is a provision which enables the State to provide for reservation in public employment in favour of backward class of citizens which are not adequately represented in services under the State. Article 16(4) is held to be an enabling provision. Clause (4) of Article 16 is also held to be not an exception to Clause (1) of Article 16 but an instance of classification implicit in and permitted by Clause (1) of Article 16, to ensure real and substantial equality of opportunity which can be achieved only by extending protection of reservation to the backward classes thereby helping them to come up to common platform as enjoyed by unreserved category candidates. In achieving this objective behind Article 16(4) the arrangement for migration/mobility made by advertisement in question, does not come in way in any manner.
14.1 At the cost of reiteration, in Hemraj Rana's case (supra) as well as in Saurav Yadav's case (supra) the discussion regarding migration was based on factual foundation of final stage of recruitment and not the Preliminary Examination stage as is the case herein.
14.2 However, the Coordinate Bench of this Court in the case of Kishor Choudhary (supra) taking queue from the decision of Indira Sawhney (supra) held that the essence of Indira Sawhney's case (supra) can be translated into reality only when the principle of migration/mobility is made available to be availed at all stages of examination. This observation of Coordinate Bench in Kishor Choudhary (supra), in the humble opinion of this Court, does not find support by any observation or
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ratio laid down in Indira Sawhney (supra). For the obvious reason that in Indira Sawhney (supra) there arose no occasion to deal with the question of the stage at which right of migration can be availed by reserved category candidates and, therefore, decision of Indira Sawhney (supra) is not an answer to the question involved herein. As such to the extent the Coordinate Bench in Kishor Choudhary (supra) held that right of migration is available even at Preliminary Examination stage (where merit is not being assessed) is rendered per incuriam Indira Sawhney's case (supra). Thus, said observation of Coordinate Bench in Kishor Choudhary (supra) looses its precedential value and is thus not binding on this Court.
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 founded 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
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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 founded solely on merit.
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
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of Main Examination and not at the declaration of Preliminary Examination result.
17. Accordingly, both the questions framed by this Court in Para 6 (supra) are answered in the negative.
18. Consequent upon the aforesaid, instant petition being meritless is dismissed as such without cost.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
mohsin
MOHAMMED MOHSIN QURESHI
2023.01.02 18:30:39 +05'30'