Andhra Pradesh High Court - Amravati
Pilla Suneetha, vs The Andhra Pradesh Public Service ... on 24 February, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.4567 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"declaring the action of the Respondent in illegally not calling the petitioner for the interview to the post of Assistant Commissioner of Endowments vide Notification No.15/2018 dated 21.12.2018 despite the merit of the petitioner and illegally denying the merit of the petitioner only on the ground that the petitioner belongs to reserved category which is illegal arbitrary unfair and showing the class discrimination and illegally declared the results vide dated 19.12.2019 is highly arbitrary unconstitutional and violation of Principles of Natural Justice also in violation of Articles 14 and 16 of the Constitution of India and consequently set aside the same and further direct the respondent to call the petitioner for interview to the post of Assistant Commissioner of Endowments as per merit irrespective of reserved category and declare the fresh results"
The petitioner who is a Law Graduate, enrolled as an Advocate and practicing at Visakhapatnam. In response to the notification inviting applications for the post of Assistant Commissioner of Endowments in A.P. Charitable and Hindu Religious Institutions and Endowments Service vide Notification No.15/2018 dated 21.12.2018, she applied to the said post. As per the said notification, Respondent No.1 proposed to recruit to fill vacancies of five posts in both Multi Zone-I and II. Out of the five posts, two posts were reserved for Women in the open category. Both zones are having each one vacancy for unreserved women category. The petitioner belongs to BC-D category, but no such post was earmarked in unreserved women category. Accordingly, MSM,J WP.No.4567 of 2020 2 the petitioner applied for the above post and appeared for the examination.
The petitioner contends that, as per Clause No.13.5 of Notification No.15/2018 dated 21.12.2018, the minimum qualifying marks for consideration to the selection process is 40% for OCs, 35% for BCs and 30% for SCs, STs and PHs.
The method of selection for the post of Assistant Commissioner is objective written test and interview. Objective written test consists of three papers for 150 marks each, totalling to 450 marks and 50 marks are allotted for interview. In the written examination, the petitioner secured 158 marks out of 444 questions i.e. 37%, thus she claims to have crossed the minimum qualified 35% marks as per Clause 13.5 of the Notification in the written test, but the respondents denied benefit to this petitioner to compete with the General Category (Women) for the post of Assistant Commissioner of Endowments, it is illegal, arbitrary and contrary to Notification No.15/2018 dated 21.12.2018 and violative of Articles 14 and 16 of the Constitution of India.
It is specifically contended that the first respondent/APPSC followed the illegal reservation method, contrary to the notification and violated the constitutional mandate and against the settled judicial precedent that in recruitment process, once game is started, the rules of the game cannot be changed. It is contended that, in the present case, the respondents violated the conditions of notification to select their own candidates by adopting illegal MSM,J WP.No.4567 of 2020 3 methods, while denying the merit of this petitioner and failed to call this petitioner for interview, being a meritorious candidate among BC-D category and that, she cannot be put to disadvantageous position on account of such procedure followed by the respondents. Once a reserved category candidate competes for selection by availing a relaxation or otherwise, it would have been treated on par with open category candidates on the strength of merit. The petitioner has been placed in third position in women candidates who appeared for examination. But, the respondents chose their own method and acted against the reserved category people by showing the class discrimination in the recruitment process. The relaxation can be given to the reserved category people for reaching level playing field with open category people. The spirit and object of the notification clearly expresses to provide a level playing field for reserved category people as per sClause 13.5 of the Notification. Therefore, it is the contention of the petitioner that, though secured more than minimum marks prescribed under BC category, she was denied equal opportunity in the employment in terms of Articles 14 and 16 of the Constitution of India and requested to issue a direction as stated supra.
The first respondent/APPSC filed detailed counter affidavit, admitting issue of notification and conditions incorporated therein, inter alia, contended that, the Commission has issued Notification No.15/2018 dated 21.12.2018 for 07 (05 fresh + 02 carry forward) vacancies to the post of Assistant Commissioner of Endowments in A.P. Charitable and Hindu Religious Institutions and Endowments MSM,J WP.No.4567 of 2020 4 Service. The community wise allotment of carry forward and fresh vacancies is tabulated hereunder:
I. CARRY FORWARD VACANCIES Multi Zone-I Multi Zone-II Total Community G W G W G W ST - 01 - 01 - 02 Total 01 01 02 II. FRESH VACANCIES Multi Zone-I Multi Zone-II Total Community G W G W G W ST 01 01 01 01 02 02 BC-B - 01 - - - 01 Total 03 02 05 The respondents submitted that the petitioner belongs to BC-D category, but no such post was earmarked under BC-D category. As such, the petitioner is eligible only under Open Competition and allowed her candidature for further process. The petitioner appeared for the written examination (objective type) (CBT) conducted by the Commission on 13.05.2019 FN & AN and
14.05.2019 FN only to the post of Assistant Commissioner of Endowments (Notification No.15/2018). The petitioner also appeared to written test (CBT) with Regd. No.150200165, but the petitioner had not figured in the merit list for interview to the post of Assistant Commissioner of Endowment, due to her low merit in the open competition.
It is further contended that, the petitioner herself admitted that she belongs to BC-D category, as no post was earmarked for unreserved women category, she applied for the same. Therefore, she must necessarily secure minimum eligible marks of 40%, but the petitioner secured only 37%, thereby, she is not eligible for interview. Therefore, mere securing 37% marks which is more than MSM,J WP.No.4567 of 2020 5 35% prescribed minimum mark for BC category is not sufficient to call the petitioner for interview when she competed under Open Category (Woman), thereby, the contention of this petitioner shall be rejected.
The first respondent/Andhra Pradesh Public Service Commission contended that the Commissioner notified 07 vacancies (05 fresh + 02 carry forward) vacancies, in which 02 vacancies are reserved for Open Category (General) and 02 vacancies are reserved for Open Category (Women) in Multi Zone-I and II. 01 BC-B (Woman) vacancy in Multi Zone-I and 02 carry forward vacancies i.e. reserved for ST(W) under Multi Zones-I and II. In the process of selection, 03 vacancies are left unfilled due to non-availability of qualified eligible merit candidates and that the candidature of this petitioner was also considered pursuant to Notification No.15/2018 dated 21.12.2018. The petitioner herself has applied against Open Category vacancies. However, the petitioner was not qualified for interview under Open Competition (Women) as per general standard and that the general cut-off mark under open competition (women) was 183.29, whereas the petitioner scored 157.95 only in three papers in the written test out of 450 marks (each paper 150 marks) which is less than 40%. As such, she is not eligible to be considered for OC category post and other candidates who secured higher marks over and above 157.95 marks than petitioner are available and they were not qualified for interview, due to their low merit. Finally, it is contended that the respondents did not violate any rules for MSM,J WP.No.4567 of 2020 6 recruitment or any provisions of Constitution, more particularly, Articles 14 and 16 of the Constitution of India, and requested to dismissed the writ petition.
The second respondent/Principal Secretary, General Administration, Amaravati was impleaded as per order of this Court in I.A.No.2 of 2020 dated 12.03.2020, but no counter is filed by the second respondent.
The petitioner filed rejoinder to the counter affidavit and contended that, the first respondent is bound to call four women for interview as per merit. But the second respondent/APPSC called only two women for interview instead of four women and this petitioner was placed in the third position in the women category in the State Wise. But the minimum qualifying marks for consideration to the selection process are 40% for OCs, 35% for BCs and 30% for SC/ST & PH persons, thereby; the petitioner satisfied the eligibility criteria in selection process by securing more than 35% marks. But, the first respondent in violation of law, declared by the Supreme Court and High Courts in the judgments referred, did not call this petitioner for interview. The petitioner also asserted that, one woman candidate by name Vasanthi Anaparthi belonging to SC women category was given post in selection where the post is earmarked for open category even though she did not secure qualifying marks where the post earmarked in general category. In these circumstances, High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh considered the case and gave an appointment to MSM,J WP.No.4567 of 2020 7 the petitioner therein in one of the judgments relied on by these petitioners in Andhra Pradesh Public Service Commission, rep. by its Secretary v. R. Shreedevi (referred supra). When the matter was carried to Supreme Court, the Apex Court dismissed the appeal filed by Andhra Pradesh Public Service Commission vide S.L.P. (Civil) No.15897 of 2018 and upheld that the judgment of the High Court, so also the judgment in Vijay Goutam Dabbiru v. High Court of Judicature at Hyderabad for State of Telangana and State of Andhra Pradesh rep. by its Registrar General, Hyderabad (referred supra).
During hearing, learned counsel for the petitioner Sri S. Srinivasa Rao would contend that the petitioner being a woman belonging to BC-D category availed various exemptions under BC-B category like age and permitted her to appear for the examination, though no reserved vacancy for BC-D (Woman) is notified. Thereby, when the petitioner is allowed to enjoy the benefits of reservation like fees exemption, more particularly, when she secured more than minimum marks of 35% as per Clause 13.5 of the Notification, she cannot be denied the opportunity in employment and therefore, the petitioner is eligible for appointment against vacancy reserved for OC (W) in the open competition, since she secured 37% of marks and in support of his contentions placed reliance on judgment of the Supreme Court in Saurav Yadav v. State of Uttar Pradesh1; judgments of Division Bench of High Court of Judicature at Hyderabad for State of 1 2021 (1) ADJ 201 MSM,J WP.No.4567 of 2020 8 Telangana and State of Andhra Pradesh in Andhra Pradesh Public Service Commission, rep. by its Secretary v. R. Shreedevi2 and Vijay Goutam Dabbiru v. High Court of Judicature at Hyderabad for State of Telangana and State of Andhra Pradesh rep. by its Registrar General, Hyderabad3. On the strength of the principles laid down therein, learned counsel for the petitioners requested this Court to declare the petitioner as eligible for being considered for the post of Assistant Commissioner of Endowments reserved for Woman category having secured 37% marks and sought direction as stated above.
Whereas, Sri N. Addanki Ramachandra Murthy, learned Standing Counsel for Andhra Pradesh Public Service Commission contended that, when the petitioner is competing for the post of Assistant Commissioner for Endowments for vacancies in the general category, she must necessarily secure the prescribed minimum marks for the open category. But, she secured only 37% marks, thereby, she is ineligible and mere exemption from payment examination fee under BC-D will not confer any right to her to claim that she is eligible to compete for being considered without securing the minimum marks prescribed for Open Category and as such, denial of opportunity and failure to consider her candidature for interview is not discriminatory and violative of any provisions or any law declared by the Court and finally, learned counsel requested to dismiss the writ petition. 2 2018 (3) ALT 349 (D.B) 3 2018 (6) ALT 360 (D.B) MSM,J WP.No.4567 of 2020 9 Considering rival contentions, perusing the material available on record, the point that arose for consideration is as follows:
"Whether the petitioner being a member belonging to BC-D category, who secured less than 40% marks required to be secured by Open Category candidate, be deemed to be eligible for being considered for interview. If so, whether the act of the respondents in denying consideration of her candidature for interview is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India?"
P O I N T:
Admittedly, the petitioner is a member of BC-D (Woman) category. The first respondent/Andhra Pradesh Public Service Commission issued a notification for selection of Assistant Commissioner of Endowments and notified seven posts. The details of the posts are given hereunder:
I. CARRY FORWARD VACANCIES Multi-Zone-I CF vacancies Total Community G W G W ST - 01 - 01 Total 01 01 Multi-Zone-II CF vacancies Total Community G W G W ST - 01 - 01 Total 01 01 II. FRESH VACANCIES Multi-Zone-I Fresh Total vacancies Community G W G W OC 01 01 01 01 BC-B - 01 - 01 Total 03 03 Multi-Zone-II Fresh Total vacancies Community G W G W OC 01 01 01 01 Total 02 02 MSM,J WP.No.4567 of 2020 10 As seen from the notification, no post is reserved for BC-D (W), except one post for BC-B (W). The petitioner applied for the post of Assistant Commissioner for Endowments under the category OC(W) (Two posts were notified as shown in the table).
When the petitioner applied for selection as Assistant Commissioner for Endowments under the category of OC (W), she has to secure 40% as per Clause 13.5 of the Notification No.15/2018 dated 21.12.2018. If it is for reserved category i.e. for BC-D (W), the person who applied for selection against the reserved category has to secure minimum 35% marks. Similarly, 30% marks are to be secured by persons under SC/ST & PH category. Since, there is no reserved vacancy for BC-D category is notified, the petitioner's application is only for selection against OC (W) category and the same is admitted by her in Paragraph No.4 of her writ affidavit. Thus, undisputedly, the petitioner applied for selection for the post of Assistant Commissioner for Endowments reserved for OC(W). The contention of the petitioner is that, being a member of BC-D, she secured more than 35% marks, which is the minimum qualifying marks prescribed, she is entitled to compete with OC(W), though the minimum marks prescribed under OC(W) is 40%.
Sri N. Addanki Sriramachandra Murthy, learned Standing Counsel for the first respondent/Andhra Pradesh Public Service Commission contended that, when the petitioner being a woman applied for the post of Assistant Commissioner for Endowments, which is reserved for women under OC(W) category, she must MSM,J WP.No.4567 of 2020 11 necessarily secure the minimum marks prescribed for selection against OC(W) i.e. 40%, though she belongs to BC-D category, since anyone can compete for selection in the open category. More particularly, woman can compete with the OC(W), subject to satisfying the eligibility criteria prescribed under the notification.
Undisputedly, the petitioner secured 37% of marks and she availed the benefit of reservation i.e exemption from payment of fee. At best, she secured more than 35% of marks which is sufficient to compete for the post of OC(W). But, this qualification cannot be accepted for the reason that, when the petitioner is competing for the post reserved for women in open category, she must necessarily secure 40% of marks, which is minimum qualifying marks fixed vide Clause 13.5 of Notification No.15/2018 dated 21.12.2018, certainly, though the petitioner is eligible to compete with the other women under OC category. But, when the petitioner secured less than 40% marks, she is not eligible for being called to interview. The prescription of minimum marks under Clause 13.5 of the Notification No.15/2018 dated 21.12.2018 is only for reserved candidates who are claiming selection against reserved vacancies, but not against general vacancy of women or in open competition. Merely because the petitioner secured 37% of marks prescribed under Clause 13.5 of the Notification No.15/2018 dated 21.12.2018, she cannot claim that she is eligible for being appointed against the vacancy reserved for women in general category.
MSM,J WP.No.4567 of 2020 12 The petitioner is a member of BC-D community and the first respondent/APPSC notified the posts for different categories. No post is reserved for BC-D category vide Notification No.15/2018 dated 21.12.2018 for recruitment of Assistant Commissioner of Endowments. The petitioner applied against OC(W) for her selection against general category selection and the same is clearly admitted in Paragraph No.4 of the writ affidavit. The specific admission is extracted hereunder for better appreciation:
"I submit that I have obtained LLB Degree and thereafter, I started practice at Visakhapatnam. The respondent has issued a notification and invited applications for the post of Assistant Commissioner of Endowments in A.P. Charitable and Endowments Service vide Notification No.15/2018 dated 21.12.2018, the respondents have shown the total vacancies of 5 posts in both Multi Zone-I and II. Out of the 5, two posts were reserved for Women in the open category. Both zones is having each one vacancy for unreserved women category. I am belongs to BC-D category, but no such post was earmarked under my category. But, I was duly eligible for the posts earmarked in unreserved women category. Accordingly, I had applied for the above post and appeared for the test."
The said fact is again reiterated in the rejoinder filed after filing counter by the respondents. Thereafter, the petitioner applied for selection against OC(W), but not under BC-D category. The minimum qualifying mark for calling the petitioner to interview is prescribed as 40% for open category, as per Clause 13.5 of the Notification No.15/2018 dated 21.12.2018. Though the petitioner belongs to BC-D community, when she is competing for the post of Assistant Commissioner of Endowments under OC(W), merely because she belongs to BC-D, she is not entitled to any exemption under BC, SC/ST & PH. She must necessarily secure 40% of the marks to call her for interview. But the contention of this petitioner MSM,J WP.No.4567 of 2020 13 is that, in view of Clause 13.5 of the Notification No.15/2018 dated 21.12.2018, she is entitled to claim exemption of 40%, as she claims to be member of BC-D community. No doubt, the petitioner is entitled to claim for her appointment against open category if she secure the marks prescribe under Clause 13.5 of the Notification No.15/2018 dated 21.12.2018 for OC and if she is claiming selection against vacancy reserved for BC-D, she is entitled to claim such relief. But, when she does not secure minimum qualifying ark for interview i.e 40% when she is competing with open category candidates, she is ineligible for interview, as she did not secure 40% of the required qualifying marks.
Learned counsel for the petitioner contended that, this petitioner is entitled to compete with the open category candidates when she secured minimum marks prescribed for BCs and placed reliance on the judgment of the Division Bench of High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh in Andhra Pradesh Public Service Commission, rep. by its Secretary v. R. Shreedevi (referred supra), where the Division Bench of the High Court held that the benefit under Article 16(4) of the Constitution of India i.e. age relaxation relates to their status as historically disadvantaged classes and is extended to them as a special benefit under Article 16 of the Constitution of India. Age relaxation does not constitute a reservation in itself. Once a reservation category candidate competes for selection, be it by availing age relaxation or otherwise, MSM,J WP.No.4567 of 2020 14 he would be on par with a open category candidate if he figures in the select list on the strength of his own merit.
The law declared in the above judgment is not in quarrel and the principle laid down in the above judgment is that, though the petitioner belonging to reservation category, though availed age relaxation, he would be on par with open category candidate, if she figures in the select list on the strength of her own merit. For instance, if a BC candidate who secured more marks than the last candidate of OC, subject to minimum qualifying marks, the BC candidate can be appointed against the OC vacancy. Thus, the ratio laid down in the above judgment has no application to the present facts of the case, for the reason that, the petitioner herein did not secure minimum marks prescribed for OC category, when she is claiming selection against the vacancy reserved for women in OC category.
Learned counsel for the petitioner relied on the another judgment of the Division Bench in Vijay Goutam Dabbiru v. High Court of Judicature at Hyderabad for State of Telangana and State of Andhra Pradesh rep. by its Registrar General, Hyderabad (referred supra), where the Court held that, the tug of war between merit and reservation poses several challenges and in a variety of ways. Ultimately, the test to be applied is to see where a person stands in the order of merit at the time of final selection. Law does not permit a less meritorious General category candidate to be allotted a seat kept unreserved, by overlooking the claim of a more meritorious candidate, solely on the ground that such more MSM,J WP.No.4567 of 2020 15 meritorious candidate belonged to the reserved category and availed the benefit of relaxed criteria.
This principle is also not applicable to the present fact of the case, as the Court specifically made it clear as follows:
"We have carefully considered the rival submissions. The entire controversy, in our opinion, revolves around the question as to whether a reserved category candidate, to be eligible for selection as against an unreserved vacancy, should have secured the minimum qualifying marks prescribed for open category candidates, or whether he is entitled to claim the benefit of relaxed eligibility criteria. Before searching for an answer to this question from judicial precedents, let us first take a look at the rule position."
In the above judgment, the Division Bench of the High Court adverted to Rule 6 of the Andhra Pradesh State Judicial Service Rules, 2007, and finally concluded that, if in the ultimate tally, a person is found to be the topper in the entire process of selection, the selection of such a candidate does not result in merit being compromised. On the contrary, his non-selection would result in merit being compromised.
The principle laid down in the above judgment is also not applicable to the present facts of the case, for the reason that, the petitioner did not secure minimum qualifying mark to call for interview i.e. 40% though the petitioner is competing with women belonging to OC, as asserted in Paragraph No.4 of the writ affidavit.
Learned counsel for the petitioner further relied on another judgment of the Supreme Court in Saurav Yadav v. State of Uttar Pradesh (referred supra), wherein, the Court referred the judgment MSM,J WP.No.4567 of 2020 16 of Apex Court in Public Service Commission, Uttaranchal etc. v. Mamta Bisht4, where the view taken by the High Court that one Neetu Joshi, on her own merit, was entitled to be considered in General category and as such she could not be counted against seats reserved for "Uttaranchal Mahila" category; was under
challenge. A bench of two Judges of this Court set aside the view taken by the High Court with following observations:
3. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates. Some women candidates stood selected in the general category while others had been given the benefit of horizontal reservation being residents of Uttaranchal. Respondent 1, being aggrieved preferred Writ Petition No. 780 of 2003 (M/B) in the High Court of Uttaranchal seeking quashment of select list dated 31-7-2003 mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in the general category and had it been done so, Respondent 1 could have been selected in the reserved category being a woman of Uttaranchal. It had also been pleaded in the petition that some of the women candidates who not only claimed the benefit of horizontal reservation but have been selected giving the said benefit, did not submit their respective certificate of domicile at the time of filling up the application forms but they produced the said certificate at a later stage and it was accepted.
4. The High Court accepted the first submission of Respondent 1 after examining the record of selection and came to the conclusion that the last selected woman candidate who was given the benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in the general category. Thus, the said candidate ought to have been appointed against the general category vacancy and Respondent 1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women. Hence, these appeals.
... ... ...
13. In fact, the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidates (social) as it held as under:
In view of the above, Neetu Joshi (Sl. No. 9, Roll No. 12320) has wrongly been counted by Respondent 3/Commission against five seats reserved for Uttaranchal Women General Category as she has competed on her own merit as general candidate and as the fifth candidate 4 (2010) 12 SCC 204 MSM,J WP.No.4567 of 2020 17 the Petitioner should have been counted for Uttaranchal Women General Category seats.
Admittedly, the said Neetu Joshi has not been impleaded as a Respondent. It has been stated at the Bar that an application for impleadment had been filed but there is nothing on record to show that the said application had ever been allowed. Attempt had been made to implead some successful candidates before this Court but those applications stood rejected by this Court.
In the present case, the issue was not with regard to horizontal or vertical reservation, but the question is whether BC women who applied for selection against the post of reserved for women under open category is eligible for being considered for interview, though she did not secure the qualifying percentage of marks. This was not considered in the judgment. Hence, the principle laid down in the above judgment has no application to the present facts of the case.
In view of the law declared by the Apex Court and Division Bench of the High Court referred supra, it is necessary to advert to the law declared by various courts on this issue.
In Jitendra Kumar Singh v. State of UP5, the Supreme Court was considering the U.P Public Services (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1994 Act ("UP Act") and government order dated March 25, 1994. The order stated: "If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed 5 2010 (3) SCC 119 MSM,J WP.No.4567 of 2020 18 any facility of relaxation (like relaxation in age limit) available to reserved category." The Supreme Court thereby stated that a bare perusal of the order implies that there is no express bar in the UP Act for SC/ST/OBC candidates being considered for posts under the general category. It held as follows:
"From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that Government Orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked."
(emphasis supplied) In Indra Sawhney v. Union of India6 popularly known as the Mandal case, the Constitution Bench of the Supreme Court had held as follows:
"[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."
(emphasis supplied) In R.K. Sabharwal v. State of Punjab7, the Constitution Bench of the Supreme Court considered the question of appointment and promotion and roster points vis-a-vis reservation and thereby held:
6
1992 Supp (3) SCC 217 7 1995) 2 SCC 745 MSM,J WP.No.4567 of 2020 19 "When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts; their number cannot be added and taken into consideration for working out the percentage of reservation...
No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition."
(emphasis supplied) In Union of India v. Virpal Singh Chauhan8, the Supreme Court held that while determining the number of posts reserved for SC and ST, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.
In Ritesh R. Sah v. Dr. Y.L. Yamul9, the question 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 if the candidate should 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 8 (1995) 6 SCC 684 9 (1996) 3 SCC 253 MSM,J WP.No.4567 of 2020 20 reserved for schedule castes or any other reserved category. It was held that, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.
In Dr. N.T.R. University of Health Sciences v. Dubbasi Praveen Kumar10, the division of the Andhra Pradesh & Telangana High Court held:
"There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4)."
Moreover, in U.P Power Corporation Ltd v. Nitin Kumar11, the Division Bench of the Allahabad High Court, held that an unreserved post or seat/general category seat is one in which every individual, irrespective of the category to which the person belongs, can compete in open merit. It was further held that, where a candidate is meritorious enough to be placed within the zone of selected candidates independent of any claim of reservation and purely on the basis of the merit of the candidate, the candidate ought not to be relegated to a seat against the 10 2016 (3) ALT 769 11 2015(5) ADJ 417 MSM,J WP.No.4567 of 2020 21 reserved category. The simple reason for this principle is that reservation is a process by which a certain number of posts or seats is carved out for stipulated categories such as OBC, Scheduled Castes and Scheduled Tribes. Unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserved categories.
Even prior to the judgment of the Allahabad High Court in U.P Power Corporation Ltd v. Nitin Kumar (referred supra), the Supreme Court in Deepa E.V v. Union of India12, had an occasion to consider the same issue. In the facts of Deepa E.V v. Union of India, the appellant belonged to the OBC category and had availed age relaxation (as was granted to OBC category candidates). Since no candidate from the general category had secured the minimum cut-off score, the appellant filed a writ petition before the high court to be accommodated in the general category. The high court dismissed the petition. The Supreme Court affirmed this decision and held that, the appellant, who has applied under OBC Category by availing age relaxation and also attending the interview under the 'OBC Category' cannot claim right to be appointed under the General Category. The reason, as per the court, was "there is an express bar for the candidates belonging to SC/ST/OBC who have availed relaxation for being considered for General Category candidates." The court was reading the existing rules and proceedings of Department of Personnel and Training, which stated that: "[W]hen a relaxed 12 2017 (12) SCC 680 MSM,J WP.No.4567 of 2020 22 standard is applied in selecting an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.
In Gujarat Public Service Commission v. Parmar Nilesh Rajendrakumar13, the Gujarat High Court considered this issue in the same perspective and concluded that all those candidates belonging to the reserved category if they avail the benefit of age relaxation, it is held to be relaxation in the standard, and therefore, are not entitled to their cases being considered for General Category vacancies and that their cases are required to be considered for the reserved category vacancies.
Later, the Apex Court in Gaurav Pradhan v. State of Rajasthan14 considered the similar situation, relying on Deepa E.V v. Union of India (referred supra) and Vikas Sankhala v. Vikas Kumar Agarwal15, wherein, similar situation had arisen and held as follows:
"24. It so happened that many candidates who belonged to reserved category got higher marks than the last candidates from the general category who was selected for the appointment in the said recruitment process. In terms of its various circulars, which we shall refer to at the appropriate stage, such reserved category candidates who emerged more meritorious than the general category candidates were 13 2015(3) GLH 481 14 (2018) 11 SCC 352 15 (2017) 1 SCC 350 MSM,J WP.No.4567 of 2020 23 allowed to migrate in general category. Effect thereof was that these candidates though belonging to reserved category occupied the post meant for general category. According to the writ petitioners (the respondents herein), it was impermissible as these reserved category candidates got selected after availing certain concessions and, therefore, there was no reason to allow them to shift to general category. The High Court has accepted this plea treating the relaxation in pass marks in TET as concession availed by the reserved category candidates in the selection process."
In the facts of the above judgment also, under the orders of the State Government dated 23.3.2011 relaxation in marks of the TET ranging from 10% to 20% was allowed to different reserved categories. After availing such relaxation the reserved category candidates were selected as having obtained more marks than the last general category candidate and were included in the general category candidates. Different circulars issued by the State of Rajasthan including circulars dated 17.06.1996, 04.03.2002 and 11.05.2011 were noticed by this Court. The general category candidates contended that since relaxation was obtained prior to issuance of circular dated 11.05.2011, circular dated 11.05.2011 is not applicable and as per earlier circulars reserved category candidates having obtained relaxation in marks were not eligible to be included into general category candidates. This Court after noticing the above arguments, ultimately held that the relaxation given in the marks in TET examination is not part of recruitment process. In paragraph 80 of the judgment this Court reached on following conclusion:
80.....Thus, in recruitment process no weightage or concession is given and allocation of 20% of TET marks is applied across the board. Therefore, the High Court is not correct in observing that concession was given in the recruitment process on the basis of relaxation in TET.
MSM,J WP.No.4567 of 2020 24 Thus, the Apex Court came to the conclusion that relaxation given in TET was not part of recruitment process, the Circulars issued by the State of Rajasthan as noted above were held not to be applicable. Finally, the Apex Court in Gaurav Pradhan and Ors. v. State of Rajasthan and Ors. (referred supra) held as follows:
"48. In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC who had taken relaxation of age were not entitled to be migrated to the unreserved vacancies, the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates and are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court.
49. On the question of existence of vacancies, although learned Counsel for the Appellant submitted that vacancies are still lying there, which submission however has been refuted by the learned Counsel for the State of Rajasthan. However, neither Appellants had produced any details of number of vacancies nor the State has been able to inform the Court about the correct position of the vacancies. We thus for adjusting the equity between the parties issue following directions:
(1) The writ Petitioners/Appellants who as per their merit were entitled to be appointed against unreserved vacancies which vacancies were filled up by migration of SC/ST/BC candidates who had taken relaxation of age should be given appointment on the posts. The State is directed to work out and issue appropriate orders for appointment of such candidates who were as per their merit belonging to general category candidates entitled for appointment which exercise shall be completed within three months from the date copy of this order is produced.
MSM,J WP.No.4567 of 2020 25 (2) The State shall make appointments against the existing vacancies, if available, and in the event there are no vacancies available for the above candidates, the supernumerary posts may be created for adjustment of the Appellants which supernumerary posts may be terminated as and when vacancies come into existence.
(emphasis supplied) In Government of NCT Delhi v. Pradeep Kumar16 considered the similar issue. In the facts of the above judgment, the Advertisement was issued by the Delhi Sub-ordinate Services Selection Board where, for the vacancies of Special Education Teachers. Respondents offered their candidature for the vacancies in Delhi and appeared in the recruitment test. But their candidature were held to be not-eligible, through the office order on ground that the applicants were CTET qualified as OBC but OBC outsider. Aggrieved by the above decision of the Selection Board, the Original Applicants filed the application before Tribunal. The Tribunal considered the rival contention and observed that rejection of the candidature of the Original Applicants would mean that the Appellants do not recognize the CTET qualification. The Tribunal took the view that there shall be no bar in considering meritorious applicants in the unreserved category if no weightage was given to CTET marks in preparation of the final merit list. Consequential direction was issued to the authorities for appointment of Original Applicants, in terms of their respective position in the merit list. On writ petition against said order, the High Court accordingly held that once the candidate had obtained the CTET qualification, the marks secured in the 16 (2019) 10 SCC 120 MSM,J WP.No.4567 of 2020 26 qualifying examination is immaterial for consideration of their candidature, for the unreserved category vacancies. As the performance of the respondents were more meritorious than others selected in the unreserved category, the Tribunal's decision in favour of the Respondents was upheld.
The Apex Court after considering the entire matter, held as follows:
i) The Respondents were competing for general category vacancies. All others in this group had obtained their CTET eligibility qualification, securing the normal pass marks without availing any relaxation of pass norms. On the other hand, the Respondents despite their lesser marks in the CTET examination, could qualify only because they availed the relaxation benefits as OBC category examinees. Their eligibility qualification is secured under relaxed norms meant for OBC category and therefore this court did not think it is proper to consider them to be eligible for the general category vacancies and contention to the contrary was unacceptable.
(ii) The Respondents with their CTET qualification under relaxed norms would be eligible for OBC category posts provided their OBC status was certified and recognized by the Delhi government. But such not being the case, they were ineligible for the reserved category vacancies. To allow them to migrate and compete for the open category vacancies would not be permissible simply because, they had secured the CTET qualification with relaxation of pass marks meant for those belonging to the OBC category. As the Respondents had not secured the normal pass marks for general category, their eligibility for the general category vacancies was not secured. Therefore, their performance in the selection examination would be of no relevance, in the present process.
(iii) As earlier discussed, this case concerns qualifications obtained with concession in pass marks. Such concession would have a direct impact on standards of competence and merit in the recruitment of Special Education Teachers. The principles of reservation under the Constitution of India are intended to be confined to a specifically earmarked category and the unreserved category must be protected, to avoid dilution of competence and merit. If Vikas Sankhla and Ors. v. Vikas Agarwal ((2017) 1 SCC 350) was interpreted shorn of its peculiar facts, as had been suggested by the respondents' counsel, it would in perception, considering that Respondents secured the qualification under relaxed norms, would lead to dilution of merit in the unreserved category. The arguments made to the contrary by the respondents was therefore rejected."
(emphasis supplied) MSM,J WP.No.4567 of 2020 27 It is the consistent view of the Apex Court and High Courts that, if a candidate who secured more marks than the last selected candidate, if a candidate from OBC/BC has secured more marks than the last selected candidate from open category, such candidate is liable to be considered for interview, though she availed concessions provided under the Rules.
Turning to the present facts of the case, the petitioner applied for her selection to the post of Assistant Commissioner for Endowments, against reserved category for women under Open Competition, but not under reserved vacancy for BC-D. Therefore, she must necessarily secure minimum 40% qualifying marks for consideration of her candidature for interviews, since she did not fall in concession. Therefore, the petitioner who secured 37% of marks cannot be said to be qualified against the General Category (Women) as minimum qualifying marks prescribed for general category as 40%. If the petitioner secured 40% marks irrespective of availing any concessions provided to the BC/OBC as per Rules, she is entitled for being selected against the vacancies, though she can compete in the open category for her selection. But, here, the petitioner did not secure minimum qualifying mark, thereby she is disentitled to claim any relief in the present writ petition.
As discussed above, the petitioner did not secure minimum qualifying mark of 40% marks to compete with OC(W) to claim selection against a vacancy open to women. Merely because, vacancies are available, the petitioner is disentitled to claim MSM,J WP.No.4567 of 2020 28 consideration of her candidature for being selected to the post applied for. As such, the petitioner is disentitled to claim any right to call for interview for selection to the post of Assistant Commissioner of Endowments. Accordingly, the point is held against the petitioner and in favour of the respondents. Consequently, the writ petition is liable to be dismissed.
In the result, writ petition is dismissed.
Consequently, miscellaneous applications pending if any, shall also stand dismissed. No costs.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:24.02.2021 SP