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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8499  OF 2012 (Arising out of SLP(Civil) No.31979/2010)

ALOK KUMAR PANDIT                                 ...Appellant

VERSUS

STATE OF ASSAM & ORS.                            ...Respondent(s)

                              O R D E R

1. Leave granted.

2. The  questions  which  arise  for  consideration  in  

this appeal filed against the order of the Division Bench of  

the Guwahati High Court dismissing the writ petition filed  

by the appellant for quashing the selection made by the  

Assam Public Service Commission (for short, ‘he Commission’)  

are  whether  a  candidate  of  reserved  category,  who  is  

adjudged  more  meritorious  than  open/general  category  

candidates,  is  entitled  to  be  appointed  in  the  

service/cadre/post of his choice/preference against the post  

earmarked for the reserved category to which he belongs and  

whether while computing the quota/percentage of reservation,  

such candidate should be treated to have been allotted a  

post in the open category.

3. On  a  requisition  received  from  the  State  

Government,  the  Commission  issued  advertisement  No.6/2006  

dated 10.8.2006 for 116 posts of Assam Civil Service Class-I  

(Junior Grade), Assam Police Service (Junior Grade), Labour  

Officer,  Assistant  Registrar  of  Cooperative  Societies,

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Inspector of Labour, Inspector of Taxes and Inspector of  

Excise.   These  included  11  backlog  posts  of  reserved  

categories  of Scheduled  Castes, Scheduled  Tribes (P)  and  

Scheduled Tribes (H).  The appellant, who belongs to OBC  

applied for recruitment against the advertised posts. After  

clearing  the  preliminary  and  final  examination,  the  

appellant was called for interview. The list of selected  

candidates was published by the Commission on 15.6.2009.

4.     As the appellant’s name did not figure in the merit  

list,  he  submitted  an  application  under  the  Right  to  

Information Act, 2005 for supply of the details of marks  

awarded to him in various papers and interview. Vide reply  

dated 16.7.2009, the Commission informed the appellant that  

he had secured 840 marks (669 in the main examination and  

141  in  the  interview).  The  appellant  then  filed  Writ  

Petition No.3590/2009 for quashing the entire selection and  

for issue of a mandamus to the Commission to prepare fresh  

select list in accordance with the recruitment rules and the  

reservation  policy  framed  by  the  State  Government.  Some  

other  unsuccessful  candidates  also  filed  writ  petitions  

questioning  the  selection  made  by  the  Commission.  The  

Division  Bench  of  the  High  Court  disposed  of  all  the  

petitions by common order dated 1.9.2009 and directed the  

Commission to prepare fresh select list.

5. In compliance of the direction given by the High  

Court, the Commission prepared fresh select list which was  

notified on 18.2.2010.  The appellant’s name did not find  

place even in the fresh list. He, therefore, filed Writ

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Petition No.1040/2010 and prayed for issue of a mandamus to  

the Commission to again revise the select list by contending  

that more meritorious candidates of the reserved category of  

OBC who should have been adjusted against the open category  

posts were illegally appointed against the posts earmarked  

for  the  OBC.  He  pleaded  that  the  Commission  committed  

serious error by allotting the posts in Assam Civil Service  

to OBC candidates who, keeping in view their overall merit,  

should have been appointed against the open category posts  

and, in any case, for the purpose of computing quota of  

reservation for OBC, such appointments should be treated as  

having been made against open category posts.

6. The Division Bench of the High Court considered  

the case of one Manjit Barkakoti, who had secured 952 marks  

and was placed at Sl.No.25 in the overall merit, but could  

not be appointed to the Assam Civil Service against the open  

category post because his marks were less than other open  

category  candidates  and  held  that  no  illegality  was  

committed by appointing him to that service against the post  

earmarked  for  the  reserved  category.  The  Division  Bench  

further  held  that  appointment  of  the  candidates  of  the  

reserved category, who were adjudged more meritorious than  

some  of  the  open  category  candidates  against  the  posts  

earmarked  for  the  particular  reserved  category  did  not  

result  in  usurpation  of  the  quota  earmarked  for  that  

category.  All this is evinced from the following portions  

of the impugned order:

“5. The contention advanced by the petitioner that

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Manjit Barkakoti being at Sl. No.25 of the over  all merit list should be treated was a general  category candidate has dangerous portents with the  law cannot countenance. If Manjit Barkakoti is to  be treated as a general category candidate, he  will not make it to the Assam Civil Service even  with lesser marks will qualify as an OBC candidate  for the Assam Civil Service to the exclusion of  a  more meritorious OBC candidates. Such a situation  cannot be allowed to prevail.  

6. The perception of the petitioner is capable of  being analysed from another standpoint. According  to the petitioner, by treating such meritorious  candidates  as  reserved  category  candidates,  the  actions  of  the  Public  Service  Commission  have  reduced the posts available for reserved category  candidates.  The  aforesaid  perception  of  the  petitioner is not correct on facts. Along with a  general merit list, the Public Service Commission  has prepared separate select list for each of the  service for which advertisement was issued. The  number of posts available in each service and the  distribution  thereof  amongst  the  general  candidates  and  each  of  the  reserved  category  candidate  is  mentioned  in  the  select  list  published. 29 posts in all for all the different  services in question were available. A reading of  the select list for each service as prepared by  the  Commission  clearly  indicates  that  29  OBC  candidates have been appointed. If that be so, the  concept of usurping the quota for OBC candidates,  as sought to be so, the concept of usurping the  quota for OBC candidates, as sought to be urged,  will have no basis. Above all, it is not the case  of the petitioner that any OBC candidate securing  less than 840 marks (secured by the petitioner)  has been appointed in any service.”

7. Learned counsel for the appellant referred to the  

provisions  of  the  Assam  Scheduled  Castes  and  Scheduled  

Tribes (Reservation of Vacancies in Services and Posts) Act,  

1978, Assam Public Service Combined Competitive Examination  

Rules, 1989 and office memo No.ARP-338/83/14 dated Dispur,  

the 4th January, 1984 issued by the State Government and  

argued that the reserved category candidates, who were more  

meritorious  than  open  category  candidates,  but  were  

appointed  against  the  reserved  category  posts  should  be

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deemed to have been appointed against the posts earmarked  

for  the  open  category  and  they  cannot  be  treated  as  

appointed  against  the  posts  earmarked  for  the  reserved  

category,  which  is  constitutionally  and  legally  

impermissible. He submitted that if migration is allowed to  

more meritorious candidates of the reserved category, who,  

as per their overall merit should be appointed against the  

general category posts then the quota earmarked for reserved  

category will be reduced and that would be clearly contrary  

to  the  provisions  of  the  rules  framed  under  proviso  to  

Article  309  of  the  Constitution,  the  reservation  policy  

framed by the State Government and Articles 14 and 16 of the  

Constitution.  

8. Learned counsel for the State of Assam supported  

the impugned order and argued that the view taken by the  

High Court on the entitlement of more meritorious candidates  

of reserved category to opt for the reserved category posts  

is in consonance with the law laid down by this Court and  

the  appellant  who  is  less  meritorious  reserved  category  

candidate  cannot claim  appointment to  the State  services  

because that would amount to violation of the rights of  

more meritorious candidates of his own category.

9. We have considered the argument/submission of the  

learned counsel for the parties. In our view, the questions  

framed in the opening paragraph of this order are no longer  

res integra and must be answered in affirmative in view of  

the judgments of this Court in State of Bihar v. M. Neethi  

Chandra (1996) 6 SCC 36, Anurag Patel v. U.P. Public Service

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Commission (2005)9 SCC 742 and Union of India v. Ramesh Ram  

(2010) 7 SCC 234.  

10. However, before adverting to aforesaid judgments  

we consider it proper to notice two other judgments in Indra  

Sawhney  v.  Union  of  India  1992  Supp.  (3)  SCC  217  and  

R.K.Sabharwal v. State of Punjab (1995) 2 SCC 745. In the  

first of these cases, the nine Judges Bench considered the  

constitutional  validity  of  O.M.s  dated  13.8.1990  and  

25.9.1991 issued by the Government of India on the issue of  

reservation of socially and educationally backward classes.  

B.P.Jeevan Reddy, J., wrote the majority opinion on his own  

behalf and on behalf of Chief Justice M.H. Kania and M.N.  

Venkatachaliah  and A.M.  Ahmadi, JJ.  S. Ratnavel  Pandian,  

T.K.Thommen, Kuldip Singh, P.B.Sawant and R.M.Sahai, JJ.,  

wrote  separate  opinions.  In  his  detailed  judgment  B.P.  

Jeevan Reddy, J. answered several questions. In paragraph  

811 of the judgment he made the following observations:

“811. In this connection it is well to remember  that the reservations under Article 16(4) do not  operate like a communal reservation. It may well  happen  that  some  members  belonging  to,  say,  Scheduled  Castes  get  selected  in  the  open  competition field on the basis of their own merit;  they  will  not  be  counted  against  the  quota  reserved  for  Scheduled  Castes;  they  will  be  treated as open competition candidates.”

11. In the second case, the Constitution Bench held  

that the State cannot count a reserved candidate selected in  

the  open  category  against  the  vacancies  in  the  reserved  

category.

12. If the proposition laid down in Indra Sawhney v.

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Union of India (supra) and R.K.Sabharwal v. State of Punjab  

(supra) are considered in abstract, it may be possible to  

say that once a reserved category candidate secures higher  

merit than open category candidates, he can be considered  

for  appointment  only  against  open  category  post  and  the  

quota of the particular reserved category cannot be reduced  

by treating his appointment as one made against the post  

earmarked for the reserved category to which he belongs.  

However, literal application of this proposition can lead to  

serious  anomaly  and  discrimination  inasmuch  as  more  

meritorious candidate of the particular reserved category  

could  be  deprived  of  the  service/cadre/post  of  his  

choice/preference  and  less  meritorious  candidate  of  the  

reserved category could get appointment on the post which  

would otherwise be available to more meritorious candidate.  

This can be illustrated by the following example: -

‘X’ and ‘Y’ are members of reserved category. They  

compete for selection for recruitment to All-India  

Services, which includes, IAS, IPS, IRS, etc. In  

the merit list prepared by the Commission ‘X’ is  

placed  higher  than  some  of  the  open  category  

candidates but on the basis of his overall inter  

se  merit  with  the  open  category  candidates  he  

could get appointment only to IRS. ‘X’ can get the  

post  of  his  choice/preference  i.e.  IAS  provided  

his case is considered for appointment against the  

posts  earmarked  for  the  particular  reserved  

category  to  which  he  belongs.   If  he  is  not

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allowed to do so, then why who is less meritorious  

than  ‘X’  within  the  reserved  category  will  get  

appointment to IAS against the reserved post.  In  

this  manner  ‘X’  will,  despite  his  better  merit  

within the reserved category, stand discriminated  

in the matter of appointment against the post for  

which he had given his preference.    

13. The anomaly of the type mentioned above was not  

countenanced in Indra Sawhney v. Union of India (supra) and  

R.K.Sabharwal v. State of Punjab (supra) and, therefore, the  

Court  did  not  have  the  occasion  to  deal  with  the  same.  

However,  we  are  convinced  that  appointment  of  less  

meritorious candidate of the reserved category against the  

service/cadre/post  of  his  choice  and  denial  of  such  

appointment to more meritorious candidate of that category  

would  result  in  blatant  violation  of  the  doctrine  of  

equality  enshrined  in  Articles  14  and  16  of  the  

Constitution.

14. In State of Bihar v. M. Neethi Chandra (supra),  

this Court considered the question whether the candidates of  

the reserved categories who had secured more marks than open  

category  candidates could  be placed  in a  disadvantageous  

position because they were allotted branches which were not  

of their choice. If they were allotted branches as per their  

merit among the reserved category candidates then they would  

have got the branches of their choice. The writ petitions  

filed  by  more  meritorious  candidates  of  the  reserved  

categories were disposed of by the High Court by directing

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that the seats should be first offered to the candidates of  

reserved category on merit and once all the reserved seats  

are filled, the remaining seats should be offered to the  

general category. The High Court made a further arrangement  

for the reserved category of girls, who could get seats on  

merit  on  their  own  reservation  as  girls  as  well  as  on  

reserved seats as scheduled casts/scheduled tribes etc. The  

girls were to be considered first for admission against the  

seats reserved for them. If any girl belonged to scheduled  

casts/scheduled tribe, etc., she was to be given a choice of  

one of the two reservations and the girls in excess of the  

reserved  vacancies  could  then  seek  admission  on  general  

merit. While partly reversing the order of the High Court,  

this Court observed:     

“Let us take a situation in which in a particular  reserved category there are × number of seats but  the  candidates  qualifying  according  to  criteria  fixed  for  that  category  are  x+5  with  the  best  among them also qualifying on merit as general  candidates. According to the arrangement made by  Circular No. 20, the first candidate gets a choice  along with the general category candidate but be- ing not high enough in the list, gets a choice  lesser than what he could secure in the reserved  category to which he was entitled. The × number of  seats could then be filled up with the four quali- fying candidates being denied admission for want  of seats. This would have been harsh for the best  candidate as well as violative of Articles 14 and  16 of the Constitution. On the other hand, if the  direction of the High Court is followed, the first  ×  number  of  candidates  get  seats  according  to  merit against the reserved seats but the remaining  5 will also have to be ‘adjusted’ against the open  seats  for  regular  candidates.  These  5  will  be  those who are not qualified according to the gen- eral merit criteria and so will necessarily dis- place 5 general candidates who would be entitled  to seats on merit.

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At the same time, as pointed out above, all is not  well with the Government Circular No. 20 as it op- erates against the very candidates for whom the  protective discrimination is devised. The inten- tion of Circular No. 20 is to give full benefit of  reservation to the candidates of the reserved cat- egories.  However, to the extent the meritorious  among them are denied the choice of college and  subject which they could secure under the rule of  reservation, the circular cannot be sustained. The  circular, therefore, can be     given effect only if    the  reserved  category  candidate  qualifying  on  merit with general candidates consents to being  considered as a general candidate on merit-cum- choice basis for allotment of college/institution  and subject.”

(emphasis supplied)

15.     In Anurag Patel v. U.P. Public Service Commission  

(supra) this Court was called upon to consider whether more  

meritorious  candidates  of  reserved  category  who  were  

adjusted against the posts earmarked for general category  

were not entitled to make a choice of the post earmarked for  

reserved category.  The facts as noticed by this Court were  

that the 3rd respondent, i.e., Rajesh Kumar Chaurasia in CA  

No. 4794 of 1998, who secured 76th place in the select list,  

filed 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  

CA No. 4794 of 1998, 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

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secured lower rank in the select list were given appointment  

to higher posts. The first petitioner in the writ petition  

i.e. Shri Rama Sanker 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.  After noticing the  

judgments in Ritesh R. Sah v. Dr. Y. L. Yamul (1996) 3 SCC  

253 and State of Bihar v. M. Neethi Chandra (supra), the  

Court observed:    

“In the instant case, as noticed earlier, out of 8  petitioners in Writ Petition No. 22753 of 1993,  two of them who had secured Ranks 13 and 14 in the  merit list, were appointed as Sales Tax Officer  II, whereas the persons who secured Ranks 38, 72  and 97, ranks lower to them, got appointment as  Deputy Collectors and the Division Bench of the  High Court held that it is a clear injustice to  the persons who are more meritorious and directed  that a list of all selected Backward Class candid- ates 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 se- lect 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 later.”

16. A  somewhat  similar  question  came  up  before  the  

three Judge Bench in Union of India v. Ramesh Ram (2009) 6  

SCC 619.  Some candidates belonging to OBC had filed an  

application  before  Madras  Bench  of  the  Central  

Administrative Tribunal challenging Rule 16(2) of the Civil  

Services  Examination  Rules,  2005.   They  pleaded  that  

adjustment of more meritorious OBC candidates against the

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OBC quota was illegal.  According to them, such candidate  

should be adjusted against the unreserved/general category  

posts and allow more OBC candidates, who were lower in rank,  

to be recommended for the posts earmarked for that category.  

The Tribunal held that the OBC candidates who were selected  

on  merit  must  be  adjusted  against  the  general  category  

posts.  It further held that in terms of the judgment of  

this  Court  in  Anuraj  Patel  vs.  U.P.  Public  Service  

Commission (supra), the allocation of service should be in  

accordance with rank-cum-preference with priority given to  

meritorious candidates.  The three Judge Bench noticed the  

judgments in Ritesh R. Sah v. Dr. Y.L. Yamul (supra), Anurag  

Patel v. U.P. Public Service Commission (supra) and R. K.  

Sabharwal v. State of Punjab (supra) and referred the matter  

to the Constitution Bench.   

17. When the matter was placed before the Constitution  

Bench (the judgment of the Constitution Bench is reported as  

Union  of  India  v.  Ramesh  Ram  (2010)  7  SCC  234),  the  

following question was framed:

“Whether  candidates  belonging  to  reserved  cat- egory, who get recommended against general/unre- served  vacancies  on  account  of  their  merit  (without  the  benefit  of  any  relaxation/concession),  can  opt  for  a  higher  choice of service earmarked for reserved category  and thereby migrate to reserved category.”

18. The Constitution Bench referred to the rules, the  

judgments of this Court in Union of India v. Satya Prakash  

(2006) 4 SCC 550, Ritesh R. Sah v. Dr. Y.L. Yamul (supra),  

State of Bihar v. M. Neethi Chandra (supra), Indra Sawhney

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v. Union of India (supra), M. Nagaraj v. Union of India  

(2006)  8  SCC  212,  Anurag  Patel  v.  U.P.  Public  Service  

Commission (supra) and observed:          

“The decision in   Anurag Patel   rectified the anom  -   aly which had occurred since U.P. PSC had allotted  services of lower preference to the candidates of  Backward Classes who were meritorious enough to  qualify as per the criteria laid down for general  category candidates. Such meritorious candidates  were  disadvantaged  on  account  of  qualifying  on  merit which was patently offensive to the prin- ciples outlined in Articles 14 and 16 of the Con- stitution. This Court had reached such conclusion  to ensure that allocation of service is in accord- ance with the rank-cum-preference basis with pri- ority given to meritorious candidates for service  allocation.

The decision in Anurag Patel in turn referred to  the earlier decision in Ritesh R. Sah v. Dr. Y.L.  Yamul. However, we have already distinguished the  judgment in Ritesh R. Sah. That decision was given  in relation to reservation for admission to post- graduate medical courses and the same cannot be  readily applied in the present circumstances where  we are dealing with the examinations conducted by  UPSC. The ultimate aim of civil services aspirants  is to qualify for the most coveted services and  each  of  the  services  have  quotas  for  reserved  classes, the benefits of which are availed by MRC  candidates for preferred service. As highlighted  earlier, the benefit accrued by different candid- ates who secure admission in a particular educa- tional  institution  is  of  a  homogeneous  nature.  However, the benefits accruing from successfully  qualifying in UPSC examination are of a varying  nature since some services are coveted more than  others.”

(emphasis supplied)

19. The  Constitution  Bench  noticed  the  judgment  in  

R.K. Sabharwal v. State of Punjab (supra) and distinguished  

the same by making the following observation:

“Reference  was  also  made  to  R.K.  Sabharwal v.  State of Punjab, this Court had declared that the

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State shall not count a reserved category candid- ate selected in the open category against the va- cancies in the reserved category. However, by this  it could not be inferred that if the candidate  himself wishes to avail a vacancy in the reserved  category, he shall be prohibited from doing so.  After  considering  the  counsel's  submissions  and  deliberations among ourselves, we are of the view  that the ratio in that case is not applicable for  the purpose of the present case. That case was  primarily concerned with the Punjab Service of En- gineers in the Irrigation Department of the State  of Punjab. The decision was rendered in the con- text  of  the  posts  earmarked  for  the  Scheduled  Castes/Scheduled  Tribes  and  Backward  Classes  on  the roster. It was noted that once such posts are  filled the reservation is complete. Roster cannot  operate any further and it should be stopped. Any  post falling vacant in a cadre thereafter, is to  be filled from the category reserved or general  due to retirement or removal of a person belonging  to  the respective  category. Unlike  the examina- tions conducted by UPSC which includes 21 differ- ent services this case pertains to a single ser- vice  and  therefore  the  same  cannot  be  compared  with the examination conducted by UPSC. The exam- ination conducted by UPSC is very prestigious and  the topmost services of this nation are included  in this examination. In this respect, it is obvi- ous that there is fierce competition amongst the  successful candidates as well to secure appoint- ments in the most preferred services. This judg- ment is strictly confined to the enabling provi- sion of Article 16(4) of the Constitution under  which the State Government has the sole power to  decide whether there is a requirement for reserva- tions in favour of the backward class in the ser- vices  under  the  State  Government.  However,  the  present case deals with positions in the various  civil services under the Union Government that are  filled through the examination process conducted  by  UPSC.  Therefore,  the  fact-situation  in  R.K.  Sabharwal case is clearly distinguishable.

20. In view of the above discussion and the law laid  

down in State of Bihar v. M. Neethi Chandra (supra), Anurag  

Patel v. U.P. Public Service Commission (supra), which has  

been approved by the Constitution Bench in Union of India v.  

Ramesh Ram, we hold that the official respondents did not  

commit  any  illegality  by  appointing  more  meritorious

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candidates of OBC to Assam Civil Service for which they had  

given preference and the High Court did not commit any error  

by dismissing the writ petition.  

21. As a sequel to the above, the questions framed in  

this appeal are answered in the following terms:

“ 1) A reserved category candidate who is adjudged  

more meritorious than open category candidates is  

entitled  to  choose  the  particular  

service/cadre/post  as  per  his  choice/preference  

and he cannot be compelled to accept appointment  

to an inferior post leaving the more important  

service/cadre/post  in  the  reserved  category  for  

less meritorious candidate of that category.  

2) On his appointment to the service/cadre/post of  

his  choice/preference,  the  reserved  category  

candidate cannot be treated as appointed against  

the open category post.”   

22. In the result the appeal is dismissed. The parties  

are left to bear their own costs.

..................J.            [G.S. SINGHVI]

NEW DELHI;                 .................J. NOVEMBER 26, 2012                 [GYAN SUDHA MISRA]