SUPREME COURT OF INDIA
Anurag Patel
Vs.
Uttar Pradesh Public Service Commission
C.A.No.4794 of 1998
(K. G. Balakrishnan and Dr. A.R. Lakshmanan JJ.)
29.09.2004
JUDGMENT
1. Leave granted on Special Leave Petition nos. 24015 of 1994 and 2197 of 2004.
2. In the year 1990, the Uttar Pradesh Public Service Commission (for short
'the U.P.P.S.C.) conducted a combined State Services/ Upper Subordinate
Services (Preliminary) Examination for selection to various posts such as
Deputy Collectors in U.P. Civil (Executive) Services, Dy. Superintendent of
Police in U.P. Police Services, Treasury Officers / Account Officers in U.P.
Finance and Accounts Services, Sales Tax Officers, Asstt. Transport Officers,
District Supply Officers and various other posts. Pursuant to the advertisement
made by the U.P.S.C., a large number of candidates appeared for selection and
the U.P.P.S.C. Published the list of selected candidates in August, 1992.
Altogether 358 posts in various categories were filled up. The candidates
belonging to the Backward Classes were entitled to get reservation in selection
in respect of 57 posts in various categories, out of a total number of 358
posts. The posts in each category of service are filled up by choice of the
candidate and the person who secured higher position in the merit list would
opt for U.P. Civil (Executive) Service and those who cannot get the higher and
important category of service have to be satisfied with posts in services of
lesser importance. In each category of service posts were reserved for
Scheduled Caste/ Scheduled Tribe, Backward Classes and handicapped persons etc.
The candidates belonging to SC/ST and Backward Classes get selected to the
seats (posts) earmarked for general candidates. The U.P.S.C. treats such
candidates in the general and allot them to various services depending upon the
rank secured by them in the select list and SC/ST and B.C. Candidates, who got
lower rank in merit lists of general candidates would get only posting in
lesser important service. However, the SC/ST and B.C. Candidates who got
selection to the posts reserved in each category even though they secured
lesser rank in the whole select list would get appointed to reserved posts in
each category. This mode of appointments caused serious injustice to candidates
who applied for post in the reserved category, yet they got selection to the
general seats (posts) as they were meritorious and were entitled to get
selection along with the general candidates. However, their merit and ability
did not pay any dividends as they got appointment only to lesser important
posts.
3. The said anomaly is easily discernible from the following facts:
“The 3rd Respondent i.e. Rajesh Kumar Chaurasia in C.A. No. 4794/98, who
secured 76th place in the select list, filed a Civil Miscellaneous Writ
Petition No. 46029 of 1993 before the High Court of Allahabad contending that
he was appointed as a Sales Tax Officer, although the appellant in C.A. No.
4794/95 i.e. Nanku Ram (Anurag Patel) who was also a Backward Class candidate
was appointed as a Deputy Collector, who according to the 3rd respondent, had
secured 97th rank in the select list, a rank lower than him. Similarly, 8
persons - all belonging to Backward Classes, who find their names in the select
list filed writ petition no. 22753 of 1993 alleging that they were entitled to
get postings in higher cadre of service as the persons who secured lower rank
in the select list were given appointment to higher posts. The first petitioner
in the writ petition i.e. Shri Rama Snaker Maurya and the 2nd petitioner i.e.
Shri Abdul Samad were at serial nos. 13 and 14 in the select list. According to
these petitioners, persons lower in rank who got appointment in the reserved category
were given postings on the ground that those posts were earmarked for being
appointed in Class II services.”
4. The petitioners in these writ petitions contended that the authorities,
while making appointments, had not strictly followed the instructions issued by
the government. When the selection was made some of the candidates, who
belonged to the backward classes, got selection in the general category and
while making appointments, these candidates for selection to the open merit
quota were treated as general candidates and they were appointed on the basis
of the rank list prepared in the merit. As against the reserved quota, only
those candidates who had obtained the reservation and got entry to the
selection were appointed. For example, in the case of U.P. Civil (Executive)
Services there were altogether 20 posts, out of which 10 posts were to be
filled up by the general category candidates, 4 posts by the Scheduled Caste
candidates, 2 posts for Army displaced persons /handicapped / Emergency commissioned
/ short service commissioned officers / Ex-Army men, one post of the dependents
of freedom fighters of U.P. And 3 posts for the candidates belonging to
backward classes. This being the top most post coming under the selection the
authorities should have filled up the post according to the instruction issued
by the government on 19th October, 1992. The instruction was to the following
effect:
"Allocation / selection of the candidates successful in the combined
examinations held for more than one service ought to be made treating each
service separately. If any candidates belonging to reserved category, succeeds
on merits, without availing himself /herself of the facility of relaxation in
norms and exemption in age limit prescribed for the general candidates, on the
basis of his preference, he will not be adjusted against the vacancy /post of
the reserved quota. On the contrary, if any candidate belonging to the reserved
category, finds place in the selection list, after having availed himself
/herself of the facility of relaxation in norms and exemption in age limit
prescribed for the general candidates, on the basis of his preference, he ought
to be adjusted against the vacancy / post of the reserved quota."
It seems, the U.P.P.S.C. recommended the candidates, as regards the first
category i.e. U.P. Civil (Executive) Services as follows, namely:--
5. First 10 candidates were appointed on the open merit and thereafter three
seats which were reserved for backward classes were filled up by O.B.C. Candidates,
who secured rank nos. 38, 62 and 97. The rank list prepared by the U.P.P.S.C.
shows that as many as 9 candidates had secured higher rank than the candidate
no. 38, namely, Shri Ashok Chandra who got appointment as Deputy Collector and
as against candidate Shri Ramesh Chandra Yadav, who got appointment as Deputy
Collector, secured only 62nd place in the select list and there were 15
candidates belonging to backward classes were above him in the rank list. So
also the 97th rank holder who was the petitioner in the writ petition before
the High Court and the present appellant in C.A. No. 4794 of 1998 also get
appointment as Dy. Collector and there were several other backward class
candidates in the merit list, who secured higher marks in the selection. This
anomaly happened as the candidates above who secured higher marks than the 3rd
respondent were adjusted against the vacancies that arose in the general
category for various other posts such as Treasury Officers / Account Officers
in U.P. Finance and Accounts Services, Sales Tax Officers, Asstt. Transport
Officers, District Supply Officers etc. The authorities should have prepared
the candidates who are to be appointed on general merit as also candidates who
are to be appointed as against the reserved vacancies and while making
appointments the inter se merit of the reserved candidates should have been
considered and they must have been given the option treating each service
separately. As this exercise was not followed, less meritorious candidates got
appointment to higher posts whereas more meritorious candidates had to be
satisfied with posts of lower category.
6. In the matter of admission to the medical college, the same difficulty was
experienced and this Court held in Ritesh R. Shah vs. Dr. Y.L. Yamul and
others, , in paragraph 17 of the judgment at page 261 as follows:
"... In view of the legal position enunciated by this Court in the
aforesaid cases the conclusion is irresistible that a student who is entitled
to be admitted on the basis of merit though belonging to a reserved category
cannot be considered to be admitted against seats reserved for reserved
category. But at the same time the provisions should be so made that it will
not work out to the disadvantage of such candidate and he may not be placed at
a more disadvantageous position than the other less meritorious reserved
category candidates. The aforesaid objective can be achieved if after finding
out the candidates from amongst the reserved category who would otherwise come
in the open merit list and then asking their option for admission into the
different colleges which have been kept reserved category candidates should be
considered and they be allotted seats in whichever colleges the seats should be
available. In other words, while a reserved category candidate entitled to
admission on the basis of his merit will have the option of taking admission 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." *
The same question was considered by this Court in State of Bihar and others vs.
M. Neethi Chandra & others, 2, wherein it was held in paragraph 13 as
follows:
"... However, to the extent the meritorious among them are denied the
choice of college and subject which they could secure under the rule of
reservation, the circular cannot be sustained. The circular, therefore, can be
given effect only if the reserved category candidate qualifying on merit with
general candidates consents to being considered as a general candidates on
merit-cum-choice basis for allotment of college / institution and
subject.."
In the instant case, we noticed earlier, out of 8 petitioners in writ petition
no. 22753/93, two of them who had secured ranks 13 and 14 in the merit list,
where appointed as Sales Tax Officer-II, whereas the persons who secured rank
nos. 38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors
and the Division Bench of the High Court held that it is a clear injustice to
the persons who are more meritorious and directed that a list of all selected
backward class candidates shall be prepared separately including those candidates
selected in the general category and their appointments to the posts shall be
made strictly in accordance with merit as per the select list and preference of
a person higher in the select list will be seen first and appointment given
accordingly, while preference of a person lower in the list will be seen only
after. We do not think any error or illegality in the direction issued by the
Division Bench of the High Court.
7. Mr. R.N. Trivedi, learned senior counsel appearing for the Commission submitted
that in case any rearrangement is made, the same persons who had already been
appointed are likely to loose their posts. Going by the counter statement filed
by the State in the writ petition no. 22753/93 it appears that altogether 358
candidates were appointed and 47 candidates belonging to backward classes were
filled up by posts earmarked for backward classes. Amongst the 358 candidates
those who secured higher marks than the cut-off mark for the general category
also must have got selection in the general category even though they belong to
the backward classes. If these candidates who got selection in the general
category are allowed to exercise preference and then appointed accordingly the
candidates who were appointed in the reserved categories had to be pushed down
in their posts and the vacancies thus left by the general category candidates
belonging to backward classes could be filled up by the persons who are really
appointed against the quota reserved for backward classes. There will not be
any change in the total number of posts filled up either by the general
category candidates or by the reserved category candidates.
8. Learned senior counsel for the Commission further pointed out that all these
officers have been working against the posts since the last 11 years and that
many of these affected parties were not made parties to the writ petition and
if any reallocation of posts is made at this distance of time it will cause
injustice to the affected parties. It is also pointed out by the respondent's
counsel that in the writ petition filed by one Amrendra Pratap Singh i.e. writ
petition no. 32346 before the Allahabad High Court, an interim order was passed
in favour of the petitioner therein and the Division Bench directed that the
appointment would be subject to the result of the writ petition and this order
continued for some period and all the candidates were informed that their
appointments would be subject to the result of the writ petition. Although that
writ petition under review was dismissed, the candidates who were appointed
were aware of the proceedings pending before the High Court. By the impugned
order the High Court only directed reallocation of the posts according to the
merit prepared in the select list. The decision rendered in writ petition no.
46029 of 1993 dated 15th April, 1998 was followed in the decision in writ
petition no. 22753 of 1993.
9. In the circumstances, we do not find any merit in these appeals. The appeals
are dismissed accordingly. However, the State is directed to carry out the
exercise of reallocation within a period of three months. The effected officers
shall be given reasonable opportunity of being heard and to the extent possible
the State shall given accommodation to such officers.