Uttarakhand High Court
Rajneesh Dwivedi vs State Of Uttarakhand And Others on 24 July, 2020
Author: R.C. Khulbe
Bench: Ramesh Ranganathan, R.C. Khulbe
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 139 of 2019
Rajneesh Dwivedi ...Petitioner
Vs.
State of Uttarakhand and others ...Respondents
Mr. Subhash Upadhyaya, Advocate for the petitioner.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand.
Mr. B.D. Kandpal, Standing Counsel for the Uttarakhand Public Service Commission.
Mr. Piyush Garg, Advocate for the respondent nos.4 to 9.
Chronological list of cases referred:
1. Judgment in Writ Petition (S/B) No.78 and 82 of 2019 dated 09.01.2020
2. (2010) 3 SCC 119
3. (2017) 12 SCC 680
4. (2019) 10 SCC 120
5. (2018) 11 SCC 352
6. (1996) 11 SCC 742
7. Order in Civil Appeal No.2244 of 2009 dated 08.04.2009
8. 2010 SCC Online Del 4183
9. 2000 SCC Online Raj 391
10. AIR 1993 SC 477
11. (1999) 7 SCC 209
12. (1997) 3 SCR 269
13. (1989) I LLJ 76 SC
14. AIR 1996 SC 1838
15. (1963) Suppl. 1 SCR 439
16. AIR 1976 SC 490
17. AIR 1951 SC 226
Reserved on :08.07.2020
Delivered on :24.07.2020
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Ramesh Ranganathan, C.J.
The jurisdiction of this Court, under Article 226 of the Constitution of India, has been invoked by the petitioner aggrieved by the action of the Uttarakhand Public Service Commission (for short "the Commission") in not selecting him for appointment to the post of Assistant Professor in Physical Chemistry in the Government Degree Colleges of the State. He seeks a writ of certiorari to quash the select-list dated 08.01.2019 issued by the Commission; for a mandamus to declare that the entire selection process, in making appointment to the post of Assistant Professor (Physical Chemistry), is vitiated in law for not following the selection procedure prescribed by the 2010 UGC Regulations; for a writ of mandamus commanding respondents 1 to 3 to consider his candidature, for selection to the post of Assistant Professor 2 (Physical Chemistry), in accordance with the provisions of the 2010 UGC Regulations; for a writ of mandamus commanding respondents 1 to 3 to consider his suitability and merit, vis-à-vis the private respondents, for the post of Assistant Professor (Physical Chemistry) in accordance with the 2010 UGC Regulations, by providing the benefit of reservation to the reserved category candidates, and selecting them against reserved category posts; and for a writ of mandamus commanding the respondents not to issue appointment letters to the private respondents on the basis of the select list dated 08.01.2019.
2. Mr. Subhash Upadhyaya, learned counsel for the petitioner, would fairly state that, in the light of the order of the Division Bench in Madhu Bahuguna vs. Uttarakhand Public Service Commission & others1, the challenge to the validity of the selection process, on the ground that it is contrary to the 2010 UGC Regulations, may not survive; and his challenge to the selection process is now confined to the question whether candidates selected in the screening test, under the quota vertically/horizontally reserved in their favour, can be considered for selection, pursuant to the interview held thereafter,against posts in the general category.
3. Before examining the contentions urged in this regard, it is necessary to note the facts to the extent relevant. While the petitioner belongs to the general category, respondents 4 to 6 belong to the Other Backward Classes, respondents 7 and 10 belong to the Scheduled Castes, and respondents 8 and 9 belong to the Uttarakhand Women category. While vertical reservation is provided in favour of the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes, reservation is horizontally provided in favour of Uttarakhand women.
4. An advertisement was issued on 04.08.2017 inviting applications from eligible candidates, among others, for 13 posts of Assistant Professors in Physical Chemistry. Of these 13 posts, six were reserved in favour of the Scheduled Castes, one in favour of the Scheduled Tribes, two in favour of the Other Backward Classes, and four posts were left open to be filled up under the general category. Horizontal reservation was provided in favour of 3 Uttarakhand women in one of the six posts reserved in favour of the Scheduled Castes, and in one of the four posts in the general category.
5. The Rules, which shall be referred to in detail hereinafter, stipulate that, in case the applicants received are far more than the number of candidates to be called for interview, the applicants will be short-listed for interview on the basis of a screening test. In the case on hand, a screening test was conducted and its result was declared on 15.03.2018. From out of a total of 200 marks, the cut-off marks prescribed in the screening test for the general category was 113, it was 85 marks for the OBC category, and 65 marks for the Scheduled Caste and the Scheduled Tribe categories. In the screening test, the 5th respondent, who belonged to the OBC category, secured 123.50 marks, the petitioner, who belonged to the general category, secured 121 marks, the 4th respondent who belonged to the OBC category, secured 95 marks, the 6th respondent, who belonged to the OBC category, secured 85 marks, and the 7th respondent, who belonged to the Scheduled Caste category, secured 76.50 marks.
6. Interviews were held, thereafter, on 08.01.2019 and, while the result of only 11 candidates was announced, seven of them were declared successful. From out of a total of 100 marks, the minimum cut-off marks prescribed in the interview for the general category was 45 marks, for the OBC category it was 40 marks, and for the scheduled castes and the scheduled tribes category it was 35 marks. While the 4th respondent was awarded 74 marks in the interview, respondent nos. 8 & 9 were awarded 70 and 74 marks respectively, the 7th respondent was awarded 66.95 marks, the petitioner and the 5th respondent were awarded 65 marks, and the 6th respondent was awarded 60 marks. While respondents 4, 7, 8 & 9 were selected for appointment, as Assistant Professors (Physical Chemistry), under the general category, respondents 5 and 6 were selected under the OBC category, and the 10th respondent, who was awarded 50 marks in the interview, was selected under the Scheduled Caste category.
7. The petitioner's contention, in short, is that respondent nos. 4, 6 and 7 had secured lesser marks in the screening test, than the cut-off marks of 4 113 out of 200 prescribed for the general category; except for respondent no.5, all the other private respondents were unable to secure more than the minimum cut-off marks prescribed for the general category, and were only able to secure more marks than the minimum cut-off marks prescribed for their respective reserved categories; their candidature ought to have been considered, pursuant to the interview, only for selection against posts earmarked for their respective reserved categories, and not under the general category; if they had been appointed against vertically reserved posts, the petitioner would then have been appointed, on his merit, to one of the four posts in the general category; and, if this procedure had been followed, respondents 4 and 6 would have been appointed under the OBC category, respondent nos. 7 and 10 would have been selected and appointed against two of the posts reserved for the Scheduled Caste category; and the petitioner, respondent nos. 5, 8 and 9 would have been appointed in the four posts available under the general category.
8. The petitioner's complaint is that the 7th respondent, who belongs to the scheduled caste category and had only secured 76.50 marks in the screening test, (which is far below the cut-off marks, of 113 out of 200, prescribed for the general category), was awarded 66.95 marks in the interview, and was appointed against one of the 4 available posts in the general category, on the ground that he had secured more marks than the petitioner who was awarded 65 marks in the interview. It is his case that candidates, who were selected in the screening test under their respective reserved categories, could only have been considered for selection, pursuant to the interview, against posts vertically/horizontally reserved in their favour, and not in posts under the general category; if this procedure had been followed, it is only respondent nos.5, 8 and 9 who would have been selected and appointed under the general category; and if the 7th respondent had been appointed under the scheduled caste category, instead of under the general category, the petitioner, who was next in the order of merit, would have been selected and appointed, as an Assistant Professor (Physical Chemistry), under the general category.
5I. SUBMISSION URGED ON BEHALF OF THE PETITIONER:
9. Mr. Subhash Upadhyaya, learned counsel for the petitioner, would submit that, as the petitioner is relying on the applicable Rules in force, he is not required to challenge its constitutional validity; in terms of Rule 25(2) of the Uttarakhand Public Service Commission Procedure and Conduct of Business Rules, 2013 (for short the "2013 Rules"), suitability of the applicants is required to be judged both at the stage when a screening test is held, and later at the stage of interview; it is in order to adjudge the suitability of candidates that different minimum marks are prescribed; while the minimum marks, which a general category candidate should secure in the screening test, is 35%, it is 30% for the other backward classes and 20% for the Scheduled Castes and the Scheduled Tribes; it is only such of those candidates, who secured the minimum cut-off marks prescribed in the screening test, who were eligible to be called for interview; the mere fact that the marks secured in the screening test is not taken into consideration, and is not added to the marks awarded in the interview, is of no consequence; it is only the petitioner, and the fifth respondent (who belongs to the other backward classes category), who secured more than the minimum cut-off marks prescribed for the general category in the screening test; it is only because lower minimum marks were prescribed for the other backward classes, and the Scheduled Castes, that the other private respondents were found successful in the screening test, though they secured marks lower than minimum cut-off marks prescribed, in the screening test, for the general category; the suitability of the private respondents was judged in the screening test against their respective reserved category posts; as different minimum cut- off marks were prescribed in the screening test, candidates from the reserved category, who secured lower marks than the minimum cut-off marks prescribed for the general category in the screening test, could not have been permitted to migrate to the general category at the stage of interview; as a screening test was held to judge the suitability of candidates, and different minimum cut-off marks were prescribed therein for the general and the reserved categories, separate category-wise lists ought to have been prepared on the basis of marks secured by candidates, belonging to different categories, 6 in the screening test; on completion of the interview, the Uttarakhand Public Service Commission ought to have placed the private respondents in their respective reserved categories/sub-categories; since all the private respondents, other than the fifth respondent, were found suitable in the screening test, and were declared eligible to appear in the interview, even though they had secured lower marks than the minimum cut-off marks prescribed for the general category, they could only have been called for interview against posts earmarked for the reserved categories, and their candidature could only have been considered with respect to posts in their respective reserved categories, and not for posts under the general category; and if such a procedure, of placing reserved category candidates, (who were found suitable in the screening test only under their respective reserved categories), in the merit list of the respective reserved categories had been followed, the petitioner would then have been selected, for appointment as an Assistant Professor (Physical Chemistry) in one of the four available posts under the general category.
10. Mr. Subhash Upadhyaya, learned counsel for the petitioner, would rely on Rule 25(2) of the Uttarakhand Public Service Commission (Procedure and Conduct of Business) Rules, 2013 to submit that what was adjudged, in the screening test, is the suitability of a candidate to be called for interview. He would also rely on Jitendra Kumar Singh and another v. State of U.P. and others2; Deepa E.V. vs. Union of India3; State (NCT of Delhi) v. Pradeep Kumar4; and Gaurav Pradhan v. State of Rajasthan5.
II. SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
11. On the other hand Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service Commission, would submit that the selection process was undertaken in terms of Rule 15 of the Uttarakhand Higher Education (Group-A) Service Rules, 2003 (for short the '2003 Rules'); the advertisement, whereby applications were invited, expressly stipulated that, in case excess applications were received, a process of short-listing candidates, for interview, would be undertaken on a screening test being held; the procedure prescribed in the Uttarakhand Public Service Commission 7 Examination Results Preparation Procedure Rules, 2012 (the "2012 Rules") was followed in short-listing candidates to be called for interview; in terms of Rule 4.1.3(D) thereof, a list is required to be prepared separately for each category as different minimum marks are prescribed, for each category, in the screening test; Rule 8.2(D) of the 2012 Rules (as amended in 2015) prescribes different minimum marks for different categories in the interview; Rule 4.1.3(D) of the 2012 Rules, as amended in 2016, prescribes different minimum cut-off marks for different categories in the preliminary examination; the said Rules have not been relaxed in the present case; in terms of Rule 6.2(iii) of the 2012 Rules, three types of relaxation are provided in favour of candidates belonging to the reserved categories: (i) age; (ii) fees; and, (iii) minimum qualifying marks in the screening test as stipulated in clause 4.1.3(D); it is only if relaxation is extended beyond what is provided in the Rules, can it be said to vitiate the level playing field; no such relaxation was extended in the present case; once candidates are short-listed for interview, they are treated on par irrespective of the reserved categories to which they belong; if this procedure is not followed, then candidates, in whose favour vertical reservation is provided, may not secure enough marks to be short-listed for the interview; they would, thereby, be disentitled to compete, on their merit, for the general category posts; Rule 8(A) requires scheduled caste candidates to be called upto the last general category candidate; the interests of the scheduled castes are secured thereby, and they are entitled to compete for the general category posts on their merit in the interview, as also for posts reserved in favour of the Scheduled Castes; since some of the reserved category candidates secured more marks than the petitioner in the interview, they were selected for appointment against general category posts, and reserved category candidates, lower in merit, were selected for appointment against posts reserved in favour of the other backward classes and the Scheduled Castes. Learned Standing Counsel would rely on Jitendra Kumar Singh2; Chattar Singh and others v. State of Rajasthan and others6; and A.P. Public Service Commission v. Baloji Badhavath & others7.
812. Mr. Piyush Garg, learned counsel for respondent nos. 4 to 9, would submit that, since the petitioner has not challenged the validity of the Rules, the procedure followed by the Uttarakhand Public Service Commission in selecting candidates, both in the screening test and in the interview, must be examined in the light of the Rules in force; the marks secured by candidates, in the screening test, are not considered while adjudging the suitability of the short-listed candidates in the interview; a screening test has been prescribed only to short-list candidates, to be called for interview, in the ratio of 1:3; once candidates are short-listed, they are all treated at par, and are all eligible to compete, on their merit, in the interview held to select candidates for general category posts; as reservation is provided in favour of the other backward classes and the Scheduled Castes, candidates from these reserved categories are entitled to compete not only for general category posts, but also for posts earmarked in favour of the reserved categories; accepting the petitioner's submission would result in reservation being provided for general category candidates in the interview, excluding those from the Scheduled Castes category who were short-listed for interview on their securing the minimum cut-off marks in the screening test; selection of candidates, for appointment to the posts of Assistant Professor (Physical Chemistry), is only on the basis of the marks secured by them in the interview; selection of candidates in the interview does not depend on the marks secured by them in the screening test; the intention of the Rule, in prescribing a screening test, is only to short-list candidates in each category; accepting the petitioner's contention would result in depriving candidates, from the reserved categories, to be called for interview, and to be considered for selection on their merit for posts in the general category; the Rules prescribe only one common interview for all candidates irrespective of the categories to which they belong; no separate interview is conducted category-wise; consequently while a candidate, who belongs to the general category, is entitled to be considered on his merit for posts in the general category, other candidates, in whose favour vertical/horizontal reservation is provided, are entitled to be considered on their merit for posts in the general category and, in their respective reserved categories, on the basis of reservation provided in their favour; the petitioner participated in the common interview, and was fully aware of the Rules in 9 force; prescription of lower marks in the screening test, for candidates belonging to the reserved categories, is to ensure that candidates from all categories (both general and reserved) are called for interview in the ratio of 1:3; if the minimum cut-off marks, applicable to the general category, were prescribed as the minimum cut-off marks, which all candidates should secure in the screening test, it would result in a situation where candidates from the reserved categories may not be short-listed for interview in the ratio of 1:3; even though lower minimum marks were prescribed, for candidates belonging to the reserved category, the number of candidates called for interview was far lower than the prescribed ratio of 1:3; in terms of Rule 4.1.3(D) only one merit list is required to be prepared on completion of the screening test; Rule 6.2(a) relates to vertical reservation, and Rule 8(A) relates to the preliminary examination; Rule 8(A) does not require the reserved category candidates, selected in the screening test, to be called for interview only against posts reserved for the OBCs and the Scheduled Castes; accepting the petitioner's contention would result in reservation being provided, in favour of the general category, in the interview; since no scheduled tribe candidates secured the minimum cut-off marks, prescribed in the screening test, no candidate from this category was called for interview, though one post was reserved in their favour; the Rules in force specifically require that one combined merit list to be prepared; in the Rules, which fell for consideration before the Supreme Court in the judgments relied on behalf of the petitioner, there was an express bar for a reserved category candidate, who was selected in the screening test/preliminary examination under the reserved category, to migrate to general category posts; even in cases where the Rules are silent, reserved category candidates are entitled to be considered on their merit to be selected in general category posts; in the present case, the Rules specifically require reserved category candidates to be considered for selection, against general category posts, in the interview; since 11 posts were sought to be filled up, a minimum of 33 candidates could have been called for interview in the ratio of 1:3; the Rules in force stipulate that, despite being given the benefit of relaxation of the minimum cut-off marks, a reserved category candidate can be shifted to the general category on the basis of their merit in the interview; the intention of the Rules is that, after a screening test is held, the short-listed 10 candidates should appear in one interview, and one merit list must be prepared consequent thereto; a screening test is held not to adjudge the suitability of the applicants, but to short-list candidates to be called for interview in the ratio of 1:3; with a view to ensure that adequate number of candidates, belonging to the other backward classes and the Scheduled Castes, are called for interview in the ratio of 1:3; relaxation was given to the reserved category candidates in the screening test, and a lower minimum cut-off marks was prescribed therein for their benefit; the judgments relied on by the petitioner declare that the applicable Rules should be followed; unlike an express bar in the Rules/Government Orders, which fell for consideration in those cases, in the present case the Rules require candidates, belonging to the reserved category, to be considered in the interview for posts in the general category; in the absence of an express bar, relaxation, of the minimum cut-off marks, extended to reserved category candidates in the screening test, would not disable such candidates from participating in the interview, and compete on their merit, for posts in the general category; Rule 19(3) of the 2013 Rules requires these posts to be filled up by interview; clause 11 of the advertisement also provides for a screening test to be held to short-list candidates for interview; and screening of candidates, to short-list them for interview, is not an exercise of judging their suitability. Learned counsel would rely on Tej Pal Yadav vs. Union of India & others8; Deepa E.V.3; Chattar Singh6; Jitendra Kumar Singh2; and Dharamveer Tholia & others vs. State of Rajasthan & others9.
III. RELEVANT STATUTORY PROVISIONS AND RULES:
13. As reliance is placed on the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, the Uttaranchal Higher Education (Group 'A') Service Rules, 2003, the Uttarakhand Public Service Commission Procedure for Preparation of Results Rules, 2012 (both the 3rd Amendment of 2015 and the Fourth Amendment of 2016), and the Uttarakhand Public Service Commission (Procedure and Conduct of Business) Rules - 2013, it is useful to take note of its contents to the extent relevant. It is also useful, in this context, to refer to the relevant conditions of the advertisement dated 04.08.2017 whereby 11 applications were invited from eligible candidates to be considered, among others, for the post of Assistant Professors in Physical Chemistry.
14. The U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short the "1994 Act") (as adopted by the Uttarakhand Adaptation and Modification Order), is a comprehensive enactment for Scheduled Castes, Scheduled Tribes and OBCs. Section 3 of the 1994 Act makes provisions for reservation in favour of the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes and, under sub-section (1) thereof, in public services and posts, there shall be reserved, at the stage of direct recruitment, the percentage of vacancies, prescribed in clauses (a) to (c), to which recruitments are to be made in accordance with the roster referred to in sub-section (5), in favour of persons belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes of citizens. Section 3(6) of the 1994 Act stipulates that if a person, belonging to any of the categories mentioned in sub-section (1), 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 (1).
15. The Uttaranchal Higher Education Service (Group-A) Rules, 2003 (for short the "2003 Rules") were made in the exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Part III relates to recruitment, and Rule 6 thereunder relates to reservation wherein reservation, for candidates belonging to the Scheduled Castes, the Scheduled Tribes and other categories, shall be in accordance with the orders of the Government in force at the time of recruitment. Rule 15 of the 2003 Rules prescribes the procedure for direct recruitment and, under sub-rule (1) thereof, applications, for being considered for selection, shall be called by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.
16. Rule 15(2) of the 2003 Rules requires the Commission, having regard to the need for securing representation of candidates belonging to the 12 Scheduled Castes, the Scheduled Tribes and other categories in accordance with Rule 6, to call for interview such number of candidates, who fulfill the requisite qualifications, as it may deem fit. Rule 15(3) stipulates that the Commission shall prepare a list of candidates in the order of their proficiency as disclosed by the marks obtained by each candidate in the interview. If two or more candidates obtain equal marks, the Commission shall arrange their names in the order of merit on the basis of their general suitability for the Service. The number of the names in the list shall be more (but not more than 25 percent) than the number of vacancies. The Commission shall forward the list to the Appointing Authority. Under the proviso to Rule 15(3), candidates from the merit list shall be appointed only against those posts for which they are selected.
17. Rule 4 of the Uttarakhand Public Service Commission Procedure for Preparation of Results Rules, 2012 (Fourth Amendment-2016) (for short the "2012 Rules") relates to selection through written examination and interview. Rule 4.1.3 thereof relates to the result of the preliminary/screening examination, and Clause (D) thereof relates to merit, and stipulates that a single merit list, in accordance with the form of the examination, shall be prepared. For general category and related sub-category posts, the minimum qualifying marks shall be 35% of the total marks, for posts reserved for other backward classes, and related sub-categories, the minimum qualifying marks shall be 30%, and for posts belonging to the Scheduled Castes/Scheduled Tribes, and related sub-categories, 25% minimum qualifying marks shall be necessarily required to be obtained. Candidates, not obtaining the minimum qualifying marks, shall not be included in the merit list. If the number of eligible candidate in any sub-category, (except the physically challenged sub-
category), is less than the number required against the vacant post, then such number of candidates shall be adjusted from the concerned category. Thereafter, a separate category/sub-category wise merit list shall be prepared against the posts included in the examination.
18. Rule 6.2 of the 2012 Rules (Third Amendment-2015) relates to reservation, and provides that horizontal and vertical reservation shall be 13 given in furtherance of the prevailing Rules/Government Orders of the State of Uttarakhand. Rule 6.2(a)(1) stipulates that, for the purposes of providing reservation to candidates belonging to the Uttarakhand Scheduled Castes, Scheduled Tribes and Other Backward Classes, the following procedure shall be applied i.e. post-wise allotment shall be made as per the merit list. The allotment of posts shall be made in the order of merit on the basis of seniority, educational qualification, desirable qualification, experience, and age. Simultaneously, the selection process prescribed in the "Process of Selection", in the concerned Service Rules, shall also be followed.
19. Rule 6.2(a) of the 2012 Rules stipulates that Section 3(6) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (Uttarakhand Adaptation and Modification Order 2001), provides thus:-
"(6) If a person belonging to any of the categories mentioned in sub-section (1) gets select on basis of merit in an open competition along with general candidates, then he shall not be adjusted against the vacancies reserved for such category under sub-section (1)"
(i) First of all names of candidates right from the beginning of merit list (Sr. No. 1) till the number equivalent to number of post available for unreserved/general candidates shall be selected. In this any candidate belonging to reserved category shall also be selected on the basis of higher marks obtained by him. In such a condition, he shall not be adjusted against the concerned reserved post rather he shall be selected only as an unreserved candidate.
(ii) In case any candidate belonging to reserved category gets selected against the unreserved/general post on the basis of his merit, then he shall be selected as unreserved/general candidate, however, when options have been called for various services or posts in the competitive examination, and he is not getting the post of first option on the basis of merit list of general candidate then he shall be given appointment against the reserved post on the basis of his first option placing him on the top of the merit list/serial number of the candidates belonging to reserved category.
(iii) In case any person belonging to reserved category gets selected in open examination along with the general candidates on the basis of his merit, then he shall not be adjusted against the reserved vacancies. Meaning thereby, he shall be deemed to be adjusted against unreserved vacancies. Even if he had availed any benefit or relaxation 14 (such as relaxation in age etc.), permissible to the candidates belonging to reserved category."
20. Rule 8(A) of the 2012 Rules relates to the result of the Preliminary/Screening Examination, and stipulates that the merit list, prepared by the Gopan section, along with the file shall be placed before the Commission through the Examination Controller and Secretary; the Commission shall sign by drawing a line on the merit list for declaring the candidates successful against the concerned vacant post for each category/sub- category by following the provisions of Regulation 4.1.3(D); for declaring the candidates to be successful, to the extent of the prescribed number, a cut off line (complying with Regulation 4.1.3 (D)) shall be drawn starting from the candidate who obtained maximum marks in the screening (chhatni) examination till the candidate where the requirement of the number of candidates meet. At the time of determining the said line, it must be satisfied that all the candidates securing the same marks, and the candidates belonging to reserved category/sub category securing marks upto the cut off i.e. marks upto the last selected candidate of the general category/sub category, and the candidates belonging to that sub-category securing marks upto the cut off marks i.e. the marks secured by the last selected candidate of the concerned category, have been included. This could result in increase in the ratio of successful candidates against the vacant posts in the Preliminary/Screening Examination. For declaring the candidates successful against the post, the procedure shall be as under:-
1. Preliminary/Screening Examination -
2. (a) Screening Examination - Such selection wherein only interview has to be conducted, the candidates for interview shall be declared successful as under:
Vacant Post Number of candidates to be called for interview against the post 1 to 5 5 times approx.
6 to 10 4 times approx..
11 and more 3 times approx.
21. Rule 8(D) of the 2012 Rules relates to the result of selection by way of interview, and stipulates that, on the date of preparation of the selection result at the Commission level, the Chairman of the Interview Board 15 shall open the sealed envelope kept with him in the presence of the members so present, and the merit list shall be prepared on the basis of the marks obtained by the candidates in the interview as per the relevant Rules/ various Government Orders/laws; after preparation of the complete merit list, a category/sub category wise merit list shall be prepared for the posts included in the concerned examination; for general category and related sub-category posts, minimum qualifying marks will be 45 % of the total marks, for the posts reserved for the other backward classes and related sub-categories, the minimum qualifying marks shall be 40%, and for posts belonging to the Scheduled Caste/Scheduled Tribes and related sub-categories, 35% minimum qualifying marks are compulsorily required to be obtained; and candidates securing marks, less than the aforesaid prescribed minimum marks, shall be deemed to be ineligible for selection.
22. After preparation of the merit list, category/sub-category wise selection result shall be prepared against the posts included in the concerned examination in the order of merit, which shall be tallied once again by the Commission with the marks obtained (original mark-sheet) by the candidates and, only after being fully satisfied, the Secretary of the Commission shall be directed to declare the result. After final preparation of the result, all original mark-sheets shall be kept in one envelope, and the merit list prepared in the order of merit shall be kept in another envelope. In case, under the provisions of the Service Rules, the list has to be prepared for more than the actual vacancy (not exceeding twenty-five per cent), then, accordingly, a list shall be prepared and shall be kept in another envelope, which shall be made available to the Government as per Rules. Under the Right to Information Act, 2005, a roll-number wise list of marks obtained by all candidates shall be prepared and made available to the concerned Section, and shall also be published on the website of the Commission.
23. Rule 25 of the Uttarakhand Public Service Commission (Procedure and Conduct of Business) Rules - 2013 (for short the "2013 Rules") relates to the Preliminary Examination/ Screening Test and under sub- rule (1) thereof, notwithstanding anything to the contrary contained in the 16 relevant Service Rules or Government Orders regarding recruitment, the Commission may hold a Preliminary Examination/Screening Test for finding out suitable candidates for admission to the Main Examination or Interview, as the case may be. Under Rule 25(2), preliminary examination shall mean the Screening Test to be conducted by the Commission with the purpose of finding out suitable candidates in the required proportion as fixed by the Commission in each category, reserved and unreserved, for admission to the main examination or Interview, as the case may be. Rule 25(3) stipulates that the preliminary examination shall be conducted in the manner prescribed by the Commission from time to time. The marks obtained by the candidates, at the preliminary examination/ screening test, shall not be counted for determining the final order of merit.
24. Condition No. 16 of the advertisement dated 04.08.2017 stipulates that, on the basis of the marks obtained in the Screening Test (if conducted), in accordance with the Rules corresponding to the number of vacant posts, the candidates will be declared successful for interview. The marks obtained in the Screening test will not be added to the marks obtained in the Interview at the time of the final selection result, and the final selection result will be declared only on the basis of the marks obtained in the Interview in accordance with the Rules (giving the benefit of reservation, etc.). Condition No. 17 of the said advertisement provides that, in the screening test/interview, candidates, belonging to the general category, the Uttarakhand Other Backward Classes, the Uttarakhand Scheduled Castes and the Uttarakhand Scheduled Tribes, will be required, compulsorily, to obtain the minimum marks at every level prescribed under the Uttarakhand Examination Result Preparation Rules, 2012 (as amended from time to time). Only candidates, obtaining the minimum prescribed marks, will be considered for inclusion in the merit list.
IV. PRESCRIPTION OF DIFFERENT MINIMUM QUALIFYING
MARKS, FOR DIFFERENT CATEGORIES OF APPLICANTS,
IN THE SCREENING TEST: ITS OBJECT:
25. As noted hereinabove Rule 15(2) of the 2003 Rules requires the Commission, with a view to secure representation of candidates belonging to 17 the Other Backward classes, the Scheduled Castes and the Scheduled Tribes in accordance with Rule 6, to call for interview such number of candidates who fulfil the requisite qualifications. In the present case, selection of applicants, for the post of Assistant Professor (Physical Chemistry), is only by way of interview, unlike other selections undertaken by the Commission wherein the mode of selection is both a Written Examination and an Interview. Under Rule 8(A)(2)(a) of the 2012 Rules, where the number of vacant posts is 11 or more, candidates upto three times are required to be called for interview i.e. if the selection is by interview for 11 posts, then 33 candidates should be called for interview. Consequently, where the number of applications received are far higher, a screening test is held by the Commission to short-list candidates for interview in the ratio of 1:3.
26. The screening test is merely a process of elimination to ensure that the number of candidates, in each of the categories, are called for interview only in the ratio of 1:3. If the total number of applications received, pursuant to the advertisement, is itself less the ratio of 1:3, it may then be unnecessary for the Commission to conduct a screening test to short-list candidates. For instance, in the present case, if the total number of applications received, to be considered for the 11 posts of Assistant Professor (Physical Chemistry), was less than three times the number of posts, ie less than 33 applications had been received, it was unnecessary for the Commission to conduct a screening test for all applicants, and it would have sufficed to call all the candidates for interview, in which event it is only the marks secured by them in the interview which would have been taken into consideration in determining inter-se merit, and in selecting candidates, on their merit, for the said post. Condition No. 16 of the advertisement dated 04.08.2017, therefore, stipulates that candidates would be declared successful for interview on the basis of the marks obtained in the screening test, if conducted. The applicants were made aware, by this condition in the advertisement, that a screening test may, or may not, be conducted, since the decision, whether or not to conduct a screening test depends upon the number of applications received, and a screening test is held only when the 18 applications received far exceed the ratio of 1:3, of candidates to be called for interview.
27. In Chattar Singh6, candidates were to be screened by a test, the object of which was to eliminate an unduly long list of candidates, and to restrict the number of candidates, who would sit for the main examination, upto 15 times the notified posts/vacancies; in other words for every one post/vacancy there should be 15 candidates; the ultimate object was to call three times the candidates for the viva-voce; the lowest range of aggregate marks, as cut off for the general category, was required to be so worked out as to get the required number of candidates including OBCs, Schedule Castes and Scheduled Tribes; under the proviso to Rule 13, if that range was not reached, by candidates belonging to the SCs or STs, there may be a 5% further cut off from the last range worked out for the general category, so as to declare them as having qualified for appearing in the main examination; in other words where candidates, belonging to the SCs and STs numbering 15 times the total vacancies reserved for them, were not available then the Commission had to go down further, and cut off 5% of the marks from the lowest of the range prescribed for the general category, and then declare as eligible the SC and ST candidates who secured 5% less than the lowest range fixed by Commission for the general category, so as to enable them to appear for the main examination; and candidates, who thus obtain qualifying marks, were eligible to appear and write the main examination.
28. It is in the light of this Rule, that the Supreme Court held that, in working out this procedure, if a minimum of 15 times the candidates are identified and the results declared, it would not be necessary to pick up more general/reserved candidates; it would not be necessary to declare the result of more than 15 times the total notified vacancies/posts, so as to enable them to compete in the main examination; the object of the screening test is to eliminate an unduly long number of persons appearing for the main examination; if more candidates are called, by declaring their result in the preliminary examination, the object of the Rule would be frustrated; and separate lists of the General, OBCs, SCs, STs and the physically handicapped, 19 were required to be published by the Commission, in respect of the candidates in the respective categories, so as to make up the number of candidates to 15 times the notified or anticipated posts/vacancies, for appearing in the main examination.
29. As posts are reserved in favour of the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes, the number of candidates to be called for interview, from each of these categories, must also be in the ratio of 1:3. As noted hereinabove, of the 13 advertised posts of Assistant Professors (Physical Chemistry), 06 were reserved in favour of the Scheduled Castes, 01 in favour of the Scheduled Tribes, 02 in favour of the Other Backward Classes and 4 posts were left open to be filled up under the General category. As against a total of 39 candidates, (three times the 13 advertised posts), to be called for interview, the Commission was required to make efforts to call 18 Scheduled Caste candidates to be interviewed for 06 posts reserved in their favour, 03 Scheduled Tribes candidates to be interviewed for the 01 post reserved in their favour, and 06 Other Backward Classes candidates to be interviewed for the 02 posts reserved in their favour. The Commission was also required to ensure that, since 02 posts were horizontally reserved for women, 01 among the Scheduled Castes and 01 among the General category, of the 39 candidates to be called for interview, atleast six should be women.
30. If all the 39 candidates were called solely in the order of their inter-se merit, ie on the marks secured by them in the screening test, the possibility, of the minimum required number of candidates from the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, not being called for interview, could not be ruled out, as sufficient number of SC/ST/OBC candidates may not be available in the top 39 candidates in the screening test. It is only with a view to ensure that sufficient number of candidates, from these reserved categories, were also available to be called for interview in the ratio of 1:3, that a lower minimum cut-off marks was prescribed for them to qualify in the screening test. As noted hereinabove, Rule 4.1.3(D) of the 2012 Rules prescribes the minimum qualifying marks in 20 the screening test for the general category as 35%, for the other backward classes as 30%, and for the scheduled castes and the scheduled tribes as 25%.
31. A lower minimum cut-off marks is prescribed in the screening test for the other backward classes, the scheduled castes and the scheduled tribes, only to ensure that candidates, from these reserved categories, are called for interview in the ratio of 1:3 to fill up the posts reserved in their favour.
32. As noted hereinabove, Rule 4.1.3(D) obligates the Commission to prepare a single merit list in accordance with the form of the examination. After a single merit list is prepared strictly in the order of merit, Rule 4.1.3(D) also requires a separate category/sub-category wise merit list to be prepared against the posts included in the examination. While a common merit list, including all categories (both reserved and unreserved), is required to be prepared on completion of the Screening Test, separate merit lists are also required to be prepared, in addition thereto, for the other backward classes, the scheduled castes and the scheduled tribes and other categories. The Rules do not provide for a merit list to be prepared of candidates under the general category, excluding those belonging to the reserved categories who secured less than the cut-off marks, prescribed in the screening test, for the general category.
33. The contention, urged on behalf of the petitioner, that merit lists ought to have been prepared at the end of the screening test separately for the general category, excluding the other backward classes, the scheduled castes and the scheduled tribes who secured less than the cut-off marks prescribed in the screening test for the general category, if accepted, would result in contravention of Rule 4.1.3(D) of the 2012 Rules. Despite the requirement of the said Rule, that candidates should be called for interview in the ratio of 1:3, only 22 candidates could be called for interview in the present case to fill up the 11 advertised posts, (ie only in the ratio of 1:2), evidently because candidates, apart from these 22, did not secure the minimum cut-off marks, prescribed in the Screening Test, for candidates, from each of the categories (both reserved and unreserved), to be called for interview.
2134. Rule 8(A) of the 2012 Rules relates to the result of the screening test and requires the Commission to follow the provisions of Rule 4.1.3(D) in drawing up the merit list of candidates. The Commission is obligated, in terms of the said Rule, to draw a cut-off line starting from the candidate who obtained the maximum marks in the screening test, till the candidate where the required number of candidates meet. While drawing such a line, the Commission is required to satisfy itself that candidates, belonging to the reserved category/sub-category who have secured marks, upto the last selected candidates for the general category or sub-category, are included. The Commission is also required to ensure that candidates belonging to that sub- category, who have secured marks upto the cut-off marks, ie the marks secured by the last selected candidate of the concerned category, is included in the merit list of candidates to be called for interview.
35. On the candidates, securing the minimum cut-off marks in the screening test [as prescribed in Rule 4.1.3(D)], the Commission is required, on a conjoint reading of Rule 4.1.3(D) and Rule 8(A), to prepare a single merit list of candidates, (successful in the screening test), to be called for interview. As is evident from Condition No.17 of the advertisement dated 04.08.2017, it is only candidates, who obtain the minimum prescribed marks in the screening test, who would be considered for inclusion in the merit list for interview. Condition No. 16 of the said advertisement makes it clear that the marks obtained by candidates, in the screening test, will not be added, to the marks obtained by them in the interview, at the time of final selection. It is thereby made clear that candidates would be selected, for being recommended for appointment to the post of Assistant Professor, solely on the basis of the marks secured by them in the Interview.
36. Rule 15(3) of the 2003 Rules requires the Commission to prepare a merit list of candidates in accordance with the marks obtained by each of the candidate in the interview. Rule 8(D) of the 2012 Rules (Third Amendment- 2015) relates to the result of selection by way of interview. Minimum qualifying marks are also prescribed for the interview i.e. 45% marks for the general category, 40% marks for the Other Backward Classes, and 35% marks 22 for the Scheduled Castes and the Scheduled Tribes. Rule 8(D) makes it clear that candidates, who secure less than the prescribed minimum marks in the interview, shall be ineligible for selection.
37. From among the candidates, who secure the minimum prescribed marks in the interview, Rule 8(D) requires a merit list to be prepared on the basis of the marks obtained by the candidates in the interview. It is only after the complete (common) merit list is prepared, is the Commission also required to prepare a category/sub-category wise merit list for the posts included in the concerned examination. In the present case, the results of only 11 candidates were declared pursuant to the interview held on 08.01.2019 evidently because only 11 candidates had secured the minimum cut-off marks prescribed for the interview. Of these 11, only 7 were declared successful, to be recommended for appointment, as the required number of candidates were unavailable to be appointed against each category of posts ie reserved and general categories.
38. Reliance is placed by Mr. Subhash Upadhyaya, learned counsel for the petitioner, on Rule 25(2) of the 2013 Rules to submit that, since a screening test is held to ascertain the suitability of candidates, for admission to the interview, candidates from the reserved categories, who secured less than the minimum cut-off marks prescribed for the general category, but had secured more than the lower minimum cut-off marks prescribed for the reserved category, must be held to have been found unsuitable for being short- listed under the general category, and should not have either been called for interview or included in the final merit list of general category candidates. This contention is belied by Rule 25(2) of the 2013 Rules itself, in terms of which a screening test is required to be conducted by the Commission for the purpose of finding out suitable candidates in the required proportion as fixed by the Commission in each category, reserved and unreserved, for admission to the interview. Rule 25(2) makes it clear that the screening test is held only to short-list candidates in each category to be called for interview, and is not an exercise undertaken to judge the suitability of candidates.
23V. JUDGMENTS REGARDING MIGRATION OF CANDIDATES
FROM THE RESERVED CATEGORY TO OCCUPY POSTS IN
THE GENERAL CATEGORY:
39. It is no doubt true that a concession in marks is given to applicants from the reserved categories, and a lower threshold (ie lower minimum marks) is prescribed in the screening test for them to qualify for inclusion in the merit list of candidates to be called for interview. The question which necessitates examination is whether such a concession, extended to candidates belonging to the reserved categories in the screening test, would disable them from migrating to the general category at the interview stage, even in case they are found more meritorious in the interview, than candidates from the non-reserved categories.
40. It is useful, at this stage, to consider the judgments, cited by learned counsel on either side, on the question whether concession or relaxation, provided to the vertically reserved categories in the screening test, would disable them from migrating, at the stage of interview, to fill up posts in the general category.
41. In Jitendra Kumar Singh2, the Supreme Court held that the core issues were regarding filling up general category posts by candidates belonging to the reserved category, on their obtaining more marks than the last candidate in the general category, and whether relaxation in fee and upper age limit of five years for OBC candidates would fall within the definition of "reservation", to exclude these candidates from open competition in the seats meant for the general category. The Supreme Court held that the standard of selection, in the preliminary written test and the physical test, was common to all candidates; in other words, the standard was not lowered for candidates belonging to the reserved category; the preliminary written test and the physical test were in the nature of qualifying examinations to appear in the main written test; the marks obtained, in the preliminary written examination and the physical test, were not to be included for determination of final merit; it was only candidates, who qualified in the preliminary written test and the physical test, who became eligible to appear in the main written test; reserved category candidates were not given any advantage in the selection process; all 24 the candidates had to appear in the same written test, and face the same interview; concession in fee and age relaxation only enabled certain candidates, belonging to the reserved category, to fall within the zone of consideration; the concession in age did not tilt the balance in favour of the reserved category candidates, in the preparation of the final merit/select list; it was permissible for the State, in view of Articles 14, 15, 16 and 38 of the Constitution of India, to make suitable provisions in law to eradicate the disadvantages which candidates, belonging to the socially and educationally backward classes, suffered from; reservation was a mode to achieve equality of opportunity guaranteed under Article 16(1) of the Constitution of India; concessions and relaxations, in fee or age, provided to the reserved category candidates to enable them to compete and seek the benefit of reservation, was merely an aid to reservation, and placed these candidates at par with the general category; it was only, thereafter, that the merit of candidates was required to be determined without any further concessions in favour of the reserved category; and, in the present case, the concessions availed by the reserved category candidates, in age relaxation and fee concession, had no relevance in the determination of inter-se merit, on the basis of the final written test and interview.
42. The Supreme Court further held that, soon after enforcement of the 1994 Act, the Government of Uttar Pradesh had issued instructions dated 25.03.1994; these instructions, inter alia, provided that if any person, belonging to the reserved categories, was selected on the basis of merit in the open competition along with general candidates, then he would not be adjusted towards the reserved category i.e. he shall be deemed to have been adjusted against the unreserved vacancies, and it shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to the reserved category; from these instructions it was apparent that relaxation in age limit merely enabled the reserved category candidate to compete with the general category, all other things being equal; the State had not treated 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. the main written test followed by interview; therefore, such relaxations could not deprive a 25 reserved category candidate of the right to be considered under the general category on his merit in the competitive examination; relaxation in age and fees did not upset the "level playing field", and did not infringe Article 16(1) of the Constitution of India; these concessions were provisions pertaining to the eligibility of a candidate to appear in the competitive examination; at the time when the concessions were availed, open competition had not commenced; it commenced when all candidates, who fulfilled the eligibility conditions, namely, qualifications, age, preliminary written test and physical test were permitted to sit in the main written examination; with age relaxation and the fee concession, reserved candidates were merely brought within the zone of consideration, so that they could participate in the open competition on merit; once a candidate participates in the written examination, it is immaterial as to which category, the candidate belongs; all candidates, to be declared eligible, had to participate in the preliminary test as also in the physical test, and it was only thereafter that successful candidates had been permitted to participate in the open competition; Section 3(6) of the 1994 Act clearly provided that a reserved category candidate, who gets selected on the basis of merit in the open competition with the general category candidates, shall not be adjusted against reserved vacancies; the expression "open competition" in Section 3(6) made it clear that all eligible candidates should be assessed on the same criteria; all candidates, irrespective of the category they belong, had been subjected to a uniform selection criteria; all of them had participated in the preliminary written test and the physical test, followed by the main written test and the interview; and it could not be said that reserved category candidates, having availed relaxation of age, were disqualified to be adjusted against open category seats.
43. In Jitendra Kumar Singh2, the Government Order, under consideration, provided that, if any person belonging to the reserved category was selected on the basis of marks in the open category along with the general candidates, then he would not be adjusted towards reserved category i.e. he shall be deemed to have been adjusted against the unreserved vacancies, and it was immaterial that he had availed any facility or relaxation available to the reserved categories. It is, in the light of these Government instructions, that 26 the Supreme Court held that the State had not treated relaxation in age and fee as a relaxation in the standard for selection, based on the merit of the candidate in the selection test; therefore, such relaxations could not deprive a reserved category candidate of the right to be considered as a general category candidate on his merit in the competitive examination; at the time when the concessions were availed, open competition had not commenced; it commenced only when all candidates, who fulfilled the eligibility conditions, were permitted to sit in the main written examination; and, with age relaxation and the fee concession, reserved candidates were merely brought within the zone of consideration, so that they could participate in the open competition on merit.
44. On the question whether the appellant, who had applied under the OBC Category by availing age relaxation and had also attended the interview under the 'OBC Category', could claim the right to be appointed under the general category, the Supreme Court, in Deepa E.V.3, noted that both the OMs dated 01.07.1998 and 02.07.1997 provided that, in case of direct recruitment, SC/ST/OBC candidates, who were selected on their own merit, would not be adjusted against reserved vacancies; in the O.M. dated 01.07.1998 it was clarified that only such SC/ST/OBC candidates, who were selected on the same standards as applicable to general candidates, shall not be adjusted against reserved vacancies; in other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidate, the SC/ST/OBC candidate should be counted against reserved vacancies; and such a candidate would be deemed as unavailable for consideration against unreserved vacancies. The earlier judgment, in Jitendra Kumar Singh2, was distinguished holding that it did not contain an express bar for SC/ST/OBC candidates being considered for posts under the general Category; and in the light of the express bar, provided in the O.M. dated 1.7.1998, the principles laid down in Jitendra Kumar Singh2 could not be applied to the case on hand.
45. In Deepa E.V.3, the OM dated 02.07.1997 provided that, in cases of direct recruitment, the SC/ST/OBC candidates, who were selected on their 27 own merit, will not be adjusted against reserved vacancies; in the O.M. dated 01.07.1998 it was clarified that only such SC/ST/OBC candidates, who were selected on the same standards, as applied to general candidates, shall not be adjusted against reserved vacancies. It is in the light of these Government Orders, that the Supreme Court held that, when a relaxed standard is applied in selecting SC/ST/OBC candidates, the SC/ST/OBC candidates are to be counted against reserved vacancies, and such candidates would be deemed unavailable for consideration against unreserved vacancies; and, unlike in Jitendra Kumar Singh2, the Government orders, under consideration before it, contained a bar for SC/ST/OBC candidates being considered for posts under the general category.
46. The issues which arose for consideration in Gaurav Pradhan5, among others, were whether reserved category candidates, who had taken the benefit of age relaxation in the selection, and had obtained marks equal to or more that last general category candidate, should be considered under the general/open category, or should they be confined to the reserved category. In considering this issue, the Supreme Court held that, as the issue before the Court related only to the question of migration of the reserved category into the general/open category, it sufficed to note the relevant orders issued by the Government; para 6.2 of the circular dated 24.06.2008 provided that, in the State, members of SC/ST/OBC could compete against non-reserved vacancies, and be counted against them, in case they had not taken any concession (like that of age, etc or payment of examination fee in the case of direct recruitment); and the earlier circular dated 04.03.2002 provided that if a candidate, belonging to OBC/SC/ST, has not availed of any of the special concessions which are available to candidates belonging to these categories except the concession of fees, and he secures more marks than the marks obtained by the last general category candidate who is selected, such a candidate, belonging to OBC/SC/ST, shall be counted against general category vacancies, and not vacancies reserved for the OBC/SC/ST.
47. The Supreme Court then held that the State was fully empowered to lay down the criteria for grant of exemption, concession and reservation, 28 and prescribe the manner and methodology to effectuate such reservation; migration of reserved candidates, into the general category, was also part of the larger concept of reservation; the Government orders issued on 17.06.1996, 04.03.2002 and 24.06.2008 provided the methodology for migration of the reserved category into the general category, which was well within the power of State; the aforesaid Government orders, the last being the order dated 24.06.2008, were not under challenge; the judgment in Deepa E.V.3 fully supported the case of the appellants; the circulars dated 01.07.1998/02.07.1997 considered in Deepa E.V.3 were the same as in para 6.2 of the circular dated 24.06.2008 which was applicable in the present case; and the case of Jitendra Kumar Singh2 was distinguishable with the present case, as had been distinguished in Deepa E.V3.
48. The Supreme Court further observed that Rule 7(1) of 1989 Rules expressly provided that reservation of vacancies, for the Scheduled Castes and the Scheduled Tribes, shall be in accordance with the orders of the Government in force at the time of recruitment i.e. by direct recruitment and by promotion; the recruitment commenced by the advertisement dated 7.10.2010 and 25.10.2010; at that time the circular dated 24.06.2008 was in force; and candidates belonging to SC/ST/BC, who had availed the benefit of age relaxation, were not entitled to migrate to unreserved vacancies.
49. In Gaurav Pradhan5, the applicable Government orders provided that members of SC/ST/OBC could compete against non-reserved vacancies, and be counted against them, in case they had not taken any concession; if a candidate, belonging to the OBC/SC/ST categories, had not availed any special concessions which were available to candidates belonging to these categories except the concession of fees, and he had secured more marks than the marks obtained by the last general category candidate who is selected, such a candidate, belonging to the OBC/SC/ST, shall be counted against the general category vacancies, and not against vacancies reserved for OBC/SC/ST. It is in the light of these Government Orders that the Supreme Court held that migration of reserved candidates, into the general category, is also part of the larger concept of reservation; the Government orders provided 29 the methodology for migration of reserved category candidates into the general category, which was well within the power of State; and candidates belonging to SC/ST/OBC, who had availed the benefit of relaxation, were not entitled to migrate to the unreserved categories.
50. On the questions whether the respondents, who had secured the CTET qualification from outside Delhi as an OBC candidate availing 5% relaxation in the qualifying marks, could be considered for employment against the post of special education teachers in the Delhi Government, and whether the respondents, after availing concessions under the OBC category, could compete for seats under the unreserved category, the Supreme Court, in Pradeep Kumar4, held that the OM dated 01.07.1998 contained specific instructions that, when a relaxed standard is applied in selecting a reserved category candidate, in age limit, experience, qualification, additional chances in the written examination etc., such candidates will be counted against reserved vacancies; the OM dated 01.07.1998 clarified that only such SC/ST/OBC candidates, who were selected on the same standard as applied to general candidates, shall not be adjusted against reserved vacancies; in other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidate, for example in the age limit, experience, qualification, permitted number of chances in the 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, and such candidates would be deemed unavailable for consideration against unreserved vacancies; the respondents were competing for general category vacancies; despite their lesser marks in the CTET examination, the respondents could qualify only because they availed relaxation benefits as OBC category examinees; their eligibility qualification was secured under relaxed norms meant for the OBC category; to allow them to migrate and compete for open category vacancies was not permissible as 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 the general category, their eligibility, for general category vacancies, was not secured; this case concerned qualifications obtained with concession in pass 30 marks; and such concession would have a direct impact on the standards of competence and merit in the recruitment of special education teachers.
51. In Pradeep Kumar4, the OM dated 01.07.1998 clarified that only such SC/ST/OBC candidates, who were selected on the same standard as was applied to general candidates, shall not be adjusted against reserved vacancies; when a relaxed standard is applied in selecting an SC/ST/OBC candidate, the SC/ST/OBC candidates are to be counted against reserved vacancies; and such candidates would be deemed unavailable for consideration against unreserved vacancies. It is in the light of this Government Order, that the Supreme Court held that, since their eligibility qualification was secured under relaxed norms meant for the OBC category, it was not proper to consider such OBC category candidates eligible for general category vacancies; and as the respondents had not secured the normal pass marks prescribed for the general category, their eligibility, for the general category vacancies, was not secured.
52. In Baloji Badhavath7, the Supreme Court, following its earlier judgment in Chattar Singh6, held that how the Commission should judge the merit of the candidates is its function; unless the procedure adopted by it is held to be arbitrary or against known principles of fair play, Superior Courts would not, ordinarily, interfere therewith; in framing Rules, the State did not, per se, commit any illegality; the matter would, however, be different if the said Rules are, per se, found to be violative of Article 16 of the Constitution of India; no one has the fundamental right to be appointed in terms of Article 16 of the Constitution of India; it merely provides for a right to be considered therefor; and a procedure evolved, for laying down the mode and manner for consideration of such a right, can be interfered with only when it is arbitrary, discriminatory or wholly unfair.
53. In Dharamveer Tholia9, a Division Bench of the Rajasthan High Court held that Rule 15 of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1999 (for short the "1999 Rules") is similar to Rule 13 of the Rajasthan State and Subordinate Services (Direct Recruitment by Competitive Examination) Rules, 1962 (for 31 short the "1962 Rules"), which came up for interpretation before the Supreme Court in Chattar Singh6; the Commission had acted only on the basis of the interpretation of Rule 15 by the Supreme Court in Chattar Singh6; the preliminary examination is essentially a screening test to short list candidates; the rider of Article 335 cannot be applied at the stage of the preliminary examination, but can be applied to the main examination; a person declared successful in the preliminary examination only has a right to appear in the main examination; the argument that the list of successful candidates, in the preliminary examination, should be prepared on the basis of the marks secured by candidates in the preliminary examination, and should not be prepared category-wise, had no merit; as per the scheme of examination, final merit is prepared only after holding the main examination and interview; the marks obtained by the candidates, in the main examination and the interview, are taken into account; on the basis of aggregate marks, a final merit list is prepared; such a situation is not envisaged at the time of holding the screening test for short-listing candidates, as no merit list is prepared by the Commission at that stage; the marks obtained by the candidates, in the preliminary examination, are not taken into account while preparing the final list of candidates; such an interpretation would result in denying the reserved category candidate the right of consideration, in the main examination, under the reserved category, which will run against the scheme of reservation provided under the Rules; as the list of successful candidates, in the preliminary examination, is meant only for short-listing candidates for the main examination, it does not constitute merit of the candidates which is done at the time of preparation of the final merit list; the main object of Rule 15 is to eliminate an unduly long list of candidates who apply for admission; the marks obtained by a candidate in the preliminary examination is not counted, for the purpose of the main examination, to determine the final order of merit; the ultimate object is to give an opportunity to those candidates, who were found eligible to appear in the main examination, that constitute 15 times the number of notified posts/vacancies; in other words, for every post/vacancy, there should be atleast 15 candidates available; and this would widen the scope to attract the best talent by way of competitive examination.
3254. In Tej Pal Yadav8 a Division Bench of the Delhi High Court held that, a student may appear in the preliminary examination declaring that he belongs to the OBC category and may qualify or may not qualify; if he does not qualify, that is the end of the road; if he qualifies, he then appears in the main examination; if he does not qualify in the said examination, his right to get admission becomes totally extinct; if he qualifies within the OBC category, he may put forth his claim in that category, but if he gets more marks than the general candidates, he would be justified to say that he can be considered in the general category; if the whole concept of reservation is understood in a holistic manner, it becomes clear that appearance of a candidate from the OBC category, in the preliminary examination, is basically at the entry level; though both the preliminary and the main examinations may seem interconnected, on a deeper scrutiny it is clear that there is a subtle distinctive separation; if an OBC candidate appears in the preliminary examination as an OBC category candidate, and performs extremely well in the main examination, his claim should not be scuttled or smothered solely on the ground that he had taken the initial examination as an OBC category candidate; and in case this is allowed to be done, a general category candidate, who really could not compete with the OBC candidate in the main examination, would steal a march over him; and that would not be in public interest.
VI. RESERVATION UNDER ARTICLE 16(4) CAN BE PROVIDED BY GOVERNMENT ORDERS, WHERE THERE IS NO LEGISLATION-PLENARY OR SUBORDINATE- IN FORCE:
55. Clauses (3) and (5) of Article 16 use the word "Law", Article 16(4), however, uses the word "provision". Regulation of service conditions by orders and Rules, made by the Executive, was a well known feature at the time of the framing of the Constitution. Probably for this reason, a deliberate departure has been made in Clause (4) of Article 16. The "provision", contemplated by Article 16(4), can also be made by the executive wing of the Union or of the State. (Indra Sawhney and Ors. vs. Union of India10). Until a law is made, or rules are issued under Article 309, with respect to reservation in favour of the backward classes, it is always open to the 33 Executive (Government) to provide for reservation, of appointments/posts, in favour of backward classes by an executive order. (Indra Sawhney10).
VII. ARTICLE 16(4) IS AN ENABLING PROVISION AND CONFERS DISCRETION ON THE STATE TO PROVIDE RESERVATION:
56. Article 16(4) opens with a non-obstante clause -"Nothing in this Article shall prevent the State from making any provision for reservation.....". There is no directive or command in Article 16(4) as in Article 16(1). On the face of it, Article 16(4) is in the nature of an enabling provision. (Ajit Singh and Ors. vs. The State of Punjab and Ors11). It does not impose any constitutional duty, and only confers discretion on the State (C.A. Rajendran v. Union of India12; Ajit Singh11; P&T SC/ST Employees' Welfare Association v. Union of India13; SBI SC/ST Employees Welfare Association v. State Bank of India14; and M.R. Balaji v. State of Mysore15) to consider providing reservation if the circumstances, mentioned in the Article, so warrants. (Indra Sawhney10).
VIII. RESERVATION, UNDER ARTICLE 16(4), TAKES WITHIN ITS AMBIT EXEMPTIONS, CONCESSIONS AND RELAXATIONS ALSO:
57. Even in cases where the Government exercises its discretion under Article 16(4), it is not the requirement that it should, whenever it intends to confer certain benefits in favour of the backward classes, invariably provide them reservation, and nothing else. The concept of equality of opportunity, in matters of employment, is wide enough to include within it compensatory measures to put the members of the Scheduled Castes, the Scheduled Tribes, and the Backward Classes on par with members of other communities, which would enable them to get their share of representation in public services. No member of the forward communities can complain of a compensatory measure made by the government to ensure that members of the Scheduled Castes and the Scheduled Tribes are given their due share of representation in public services. The State can adopt any measure which would ensure adequate representation, in public services, to the members of the Scheduled Castes and the Scheduled Tribes, and justify it as a compensatory measure to ensure equality of opportunity, provided the measure does not dispense with the acquisition of the minimum basic 34 qualification necessary for efficiency of administration. (State of Kerala & another v. N.M. Thomas & others16).
58. Reservations can take various forms. They may consist of preferences, concessions, exemptions, extra facilities etc or of an exclusive quota in appointments. When measures, other than an exclusive quota for appointments, are adopted, they form part of the reservation measures or are ancillary to or necessary for availing of the reservations. (Indra Sawhney10). Reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The Constitutional scheme, and the context of Article 16(4), makes it clear that the larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent with the requirement of maintenance of efficiency of administration - the admonition of Article 335. (Indra Sawhney10).
59. Where the State finds it necessary - for the purpose of giving full effect to the provision of reservation - to provide certain exemptions, concessions or preferences to members of the backward classes, it can extend the same under Article 16 (4) itself. All supplemental and ancillary provisions, to ensure full availment of the provisions for reservation, can be provided as part of the concept of reservation itself. In a given situation, the State may think that, in the case of a particular backward class, it is not necessary to provide reservation of appointments/posts, and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under Clause (4) of Article 16 itself. In this sense, Clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of "the backward class of citizens". Backward Classes having been classified by the Constitution itself as a class deserving special treatment and, the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Clause (4) of Article 16. (Indra Sawhney10). It is permissible for the State to make suitable provisions to eradicate the disadvantages which candidates, belonging to the socially and educationally 35 backward classes, suffer from. Reservation is made to achieve equality of opportunity guaranteed under Article 16(1). Concessions and relaxations provided to the backward classes, to enable them to compete and seek the benefit of reservation, is merely an aid to reservation (Jitendra Kumar Singh2).
IX. WHILE PROVIDING RESERVATION, THE GOVERNMENT CAN RESTRICT MIGRATION, OF THOSE TO WHOM THE BENEFIT OF RESERVATION IS EXTENDED, TO THE GENERAL CATEGORY:
60. As noted hereinabove, in Gaurav Pradhan5, the Government Order stipulated that members belonging to the SC/ST/OBC could compete against non-reserved vacancies, in case they had not taken any concession (like age, payment of examination fees etc.). In Pradeep Kumar4, the Government Order stipulated that, where a relaxed standard is applied in selecting SC/ST/OBC candidates, such candidates would only be counted against reserved vacancies, and would be deemed unavailable for consideration against unreserved vacancies. Likewise in Deepa E.V.3, the Government Order clarified that only such SC/ST/OBC candidates, who were selected on the same standards as were applicable to general category candidates, would not be adjusted against reserved vacancies. The Government Orders in Gaurav Pradhan5, Pradeep Kumar4, and Deepa E.V.3 explicitly barred SC/ST/OBC candidates, who were called for interview applying a relaxed standard, to migrate to general category posts later (ie at the stage of interview).
61. On the other hand, the Government Order, in Jitendra Kumar Singh2, stipulated that, if a person belonging to a reserved category was selected on the basis of merit in the open competition along with general candidates, he would not be adjusted against the reserved category, and it was immaterial whether he had availed any facility or relaxation (like relaxation in age limit) available to the reserved categories.
62. The State is empowered to lay down the criteria for grant of exemption, concession and reservation, and prescribe the method and manner in which such reservation should be effected. Reservation, being an enabling 36 provision, the manner and extent to which reservation is to be provided may be spelt out in the orders issued by the Government. Migration of reserved category candidates, into the general category, is also part of the larger concept of reservation. While providing reservation, the Government can, in its discretion, place restrictions on the migration, of those who are extended the benefit of reservation, to the general category (Gaurav Pradhan5). It can also, while extending concessions and providing relaxation in favour of the backward classes, bar those, who receive the benefit of such relaxations and concessions, from migrating to the general category. (Deepa E.V.3).
X. RELEVANT PROVISIONS PROVIDING RESERVATION IN
FAVOUR OF THE BACKWARD CLASSES:
63. Bearing these principles in mind, let us now examine the relevant provisions and Rules governing reservation in the posts of Assistant Professors in Government Colleges in the State of Uttarakhand. As noted hereinabove while Section 3(1) of the 1994 Act prescribes the percentage of reservation to be provided in favour of the backward classes, the scheduled castes and the scheduled tribes, Section 3(6) of the 1994 Act makes it clear that, if a person belonging to the reserved category gets selected on the basis of selection and open competition in the general category, he shall not be adjusted against vacancies reserved for such categories under sub-section (1).
Section 3(6) makes it clear that, if a reserved category candidate is found more meritorious in the open competition, (in the present case-interview), than a general category candidate, he is required to be appointed against the general category post, and cannot be adjusted against posts reserved in favour of the OBC/SC/ST category.
64. Rule 6 of the 2003 Rules stipulates that reservation for candidates, belonging to the scheduled castes, the scheduled tribes and the other backward classes, shall be in accordance with the government orders in force at the time of recruitment. In the present case, no Government Order, relating to reservation, has been relied upon by learned counsel on either side, as reservation, and the manner in which it is to be provided, is governed by Rules. Rule 6.2 of the 2012 Rules relates to reservation, and Rule 6.2(a)(1) requires post-wise allotment to be made as per the merit list, and allotment of 37 post to be made in the order of merit. Rule 6.2(a) of the 2012 Rules refers to Section 3(6) of the 1994 Act. Rule 6.2(a)(iii) expressly provides that, in case any person belonging to the reserved category gets selected in the open examination, along with general category candidates on the basis of his merit, he shall then not be adjusted against reserved vacancies, and he shall be deemed to have been adjusted against unreserved vacancies, even if he had availed any benefit or relaxation permissible to candidates belonging to the reserved category.
65. It is evident from Rule 6.2(a)(iii) of the 2012 Rules that, irrespective of whether a candidate belonging to the reserved category has availed any benefit or relaxation which is permissible to such categories under the Rules (in the present case lower minimum cut-off marks in the screening test), he shall be adjusted against unreserved vacancies i.e. in general category posts, if he is found more meritorious than the other general category candidates. In short, the said Rule expressly mandates migration of the scheduled castes, the scheduled tribes and the other backward classes candidates to the general category, on their merit ie on the basis of the marks secured by them in the interview, despite their being called for interview merely having secured the lower minimum cut-off marks prescribed for the reserved categories, and though they did not secure the minimum cut-off marks prescribed for the general category.
66. As the manner and extent of reservation should be spelt out in the Government Order, it is only if there is an express bar in the Government Order, for migration of those who belong to the backward classes to the general category, would they then be disabled from competing for general category posts, for otherwise reservation under Article 16(4) does not operate as a communal reservation. If members belonging to the socially and educationally backward classes get selected in the open competition field, on the basis of their own merit, they will not be counted against the quota reserved for the backward classes. They will be treated as open competition candidates. (Indra Sawhney10).
3867. The concession in the screening test of lower minimum marks, extended in favour of SC/ST/OBC candidates, relates to their eligibility to appear for interview. At the stage, at which such concessions are extended to them, the actual selection process does not commence. It commences only when all the candidates, who were short-listed in the ratio of 1:3, are called for interview. Prescription of a lower minimum marks in the screening test, for applicants from the SC/ST/OBC categories, is only to bring them within the zone of consideration of 1:3, so that they can participate in the interview on merit. Once a candidate appears for interview, he competes against all the available posts in the general category, and it matters little to which category he belongs, for all candidates are required to appear for the interview which is common to all short-listed candidates irrespective of the category to which he belongs, reserved or unreserved.
68. As held by the Supreme Court, in Jitendra Kumar Singh2, the expression "open competition" in Section 3(6) of the 1994 Act makes it clear that all eligible candidates, ie those who have been short-listed for interview, are to be assessed on the same criteria in the interview, irrespective of the category to which they belong. No candidate, be it from the SC/ST/OBC categories or from those in whose favour no reservation is provided, is entitled to be selected for posts in the general category unless he secures the minimum cut-of marks prescribed for the general category in the interview. It is only for selection to posts, reserved in favour of SC/ST/OBC categories, would it suffice, for candidates from these categories, to secure the prescribed lower minimum marks in the interview.
69. Further, in the present case, candidates from the reserved category, who were appointed in posts under the general category, were found more meritorious than the petitioner in the interview. Their appointment to posts, under the general category, was on their merit. The petitioner, having secured lower marks than them in the interview, cannot be heard to contend that they should have been adjusted only against posts reserved in favour of the OBC/SC/ST categories, and not in posts under the general category. Accepting the submission of Mr. Subhash Upadhyaya, learned counsel for the 39 petitioner, that candidates, who were called for interview on the basis of their having secured marks lower than the cut-off marks prescribed for the general category candidates in the screening test, should be considered only against posts earmarked for the reserved categories, and should not be permitted to migrate to posts in the general category, would result in communal reservation, which was faulted by the Supreme Court in The State of Madras v. Smt. Champakam Dorairajan & another17.
70. There is no reservation in posts in the general category. All candidates, irrespective of whether they belong to the backward classes or not, are entitled to compete for posts, in the general category, on their merit. The general category posts are not reserved in favour of persons other than those who belong to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. These posts are open to be filled up solely on the basis of merit, irrespective of the caste status of the candidates who appeared in the interview.
71. Viewed from any angle, we are satisfied that the action of the respondents in selecting candidates, for appointment to the posts of Assistant Professor (Physical Chemistry), is in accordance with law and is valid. No interference is, therefore, called for in proceedings under Article 226 of the Constitution of India.
72. The Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C. J.)
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NISHANT