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2005 DIGILAW 571 (GAU)

State of Arunachal Pradesh v. Soilen Phukan

2005-08-09

AMITAVA ROY, D.BISWAS

body2005
JUDGMENT Amitava Roy, J. 1. The State of Arunachal Pradesh is in appeal being aggrieved by the common judgment and order dated 27.4.2004 quashing the impugned select list dated 5.11.2003 of the Arunachal Pradesh Public Service Commission (hereafter referred to as the Commission) and restoring the select list dated 26.6.2003 with consequential directions for appointment to posts in Arunachal Pradesh Civil Service (Entry Grade) and Arunachal Pradesh General Service on the basis thereof. While admitting the appeals, the operation of the impugned judgment and order was stayed mentioning further that all appointments made on the basis of the select list dated 5.11.2003 would be subject to the decision therein. 2. We have heard Mr. CKS Baruah, learned Advocate General, Arunachal Pradesh assisted by Mr. B. Banerjee, Sr. Government Advocate, Arunachal Pradesh, for the State Appellants and Mr. C. Baruah, Sr. Advocate assisted by Mr. U.J. Saikia, Advocates for the Respondents/writ Petitioners. 3. All the appeals having raised the common question of law in identical setting of facts were heard together and are being disposed of by this common judgment and order. 4. The Respondents/writ Petitioners, non Arunachal Pradesh Schedule Tribes (hereafter referred to as the APST)/General candidates offered their candidature in response to the advertisement dated 8.6.2001 issued by the Commission for admission to Arunachal Pradesh Public Service Combined Competitive Examination (APSCCE), Preliminary Examination, 2001-02 for recruitment to 63 Group "A" and "B" posts/ services of the Government of Arunachal Pradesh as set out therein. The advertisement apart from setting out the conditions of eligibility mentioned about reservation of posts as per the Government of Arunachal Pradesh Reservation Policy as 80:20, i.e. 80% of the posts would be reserved for the APST candidates and the rest 20% would be unreserved (open competition). The number of posts subsequent thereto and during the process rose to 98. 5. The applications submitted by the Respondents/writ Petitioners were accepted and they having cleared the preliminary examination were allowed to appear in the main examination held in the month of September 2002. All of them having come out successful in the said examination, they were called for interview/viva voce in the month of May 2003. At that stage, some unsuccessful candidates approached this Court with WP(C) 125 (AP)/03 to interdict the process. All of them having come out successful in the said examination, they were called for interview/viva voce in the month of May 2003. At that stage, some unsuccessful candidates approached this Court with WP(C) 125 (AP)/03 to interdict the process. Initially, this Court granted the interim relief but on application being filed by the State Appellant registered as MC 163 (AP)/03, the interim order staying the process was vacated on 16.9.200-3. A select list dated 26.6.2003 was thereafter published in which the names of the Respondents/Petitioners appeared as shown herein below. Petitioner Writ Petition SI.No. P-1 WP(C) 363 (AP)/2003 45 P-2 WP(C) 363 (AP)/2003 40 P-3 WP(C) 363 (AP)/2003 43 P-4 WP(C) 363 (AP)/2003 75 P-5 WP(C) 363 (AP)/2003 88 P WP(C) 367 (AP)/2003 49 P-1 WP(C) 330 (AP)/2003 94 P-2 WP(C) 330 (AP)/2003 53 P-3 WP(C) 330 (AP)/2003 51 P-4 WP(C) 330 (AP)/2003 65 P-5 WP(C) 330 (AP)/2003 68 P-1 WP(C) 81 (AP)/2004 38 P-2 WP(C) 81 (AP)/2004 42 6. The select list disclosed that 98 candidates had been selected in order of merit as the number of posts in between had increased. While the Respondents/writ Petitioners were thus waiting in bonafide expectation of being appointed on the basis of their selection, the impugned notification dated 5.11.2003 was issued by the Commission publishing a fresh select list canceling the earlier dated 26.6.2003. The list contained names of 84 candidates with only two non-APST/General candidates at SI. No.(s) 11 and 12. This list too was represented to be in order of merit. As the names of the Respondents/writ Petitioners got deleted in the process and were not included in the impugned select list, they approached this Court with different writ petitions as above, assailing the same. In essence, they contended that the office memorandum dated 10.10.2000, referred to in the impugned notification purportedly laying down the ratio of allotment of vacancies as per 80:20 reservation policy was not applicable to the instant process and that the unreserved vacancies to the extent of 20% were to be filled up by the non-APST/General candidates only in order of merit. According to them, "open competition" relatable to 20% unreserved vacancies signified that the corresponding posts were to be competed for only by the non-APST/General candidates and that in view of the reservation of 80% posts in favour of the APST candidates, their entry to this limited number of posts was excluded. 7. According to them, "open competition" relatable to 20% unreserved vacancies signified that the corresponding posts were to be competed for only by the non-APST/General candidates and that in view of the reservation of 80% posts in favour of the APST candidates, their entry to this limited number of posts was excluded. 7. The State Appellants in their counter pleaded that the interpretation sought to be provided by the Respondents/writ Petitioners vis-a-vis 20% unreserved posts was plainly incorrect and that in fact, the said posts were open to be filled up by selection strictly on merits from all categories of candidates including APST candidates. The answering Respondents referred to an office memorandum being No. OM/38/76 (Vol-II) Part-I dated 4/5/2001 reserving 80% of the posts in Group A under the Stale services to be filled up by direct recruitment to be reserved for APST candidates. Reference was also made to the Government of India, Department of Personnel and Training office memorandum No. 36012/13/88ESTT(SCT) dated 22.5.89 stipulating that in cases of direct recruitment of vacancies, the SC/ST candidates who are selected on their own merit without relaxed standards along with candidates of other communities, would not be adjusted against the reserved share of vacancies. The State authorities sought to rely on the said office memorandum also to the effect that the reserved vacancies would be filed separately from amongst the eligible SC/ ST candidates who are lower in merit than the last candidate in the merit list but otherwise found suitable for appointment even by relaxed standards, if necessary. According to them, this office memorandum was adopted by the State of Arunachal Pradesh vide office memorandum No. OM-12/2000 dated 10.10.2000. This, the state Respondents asserted, was necessary to clear the prevailing confusion/misconception about filling up of posts under unreserved categories by direct recruitment in Group A, B and C in the State services. By the said office memorandum all the departments of the State were required to follow the norms laid down in the office memorandum dated 22.5.89 while filling up the unreserved category posts in Group A, B and C in the State services by direct recruitment on the basis of merit. 8. By the said office memorandum all the departments of the State were required to follow the norms laid down in the office memorandum dated 22.5.89 while filling up the unreserved category posts in Group A, B and C in the State services by direct recruitment on the basis of merit. 8. The State Respondents maintained that the select list dated 26.6.2003 was drawn up in non-compliance of the office memorandum dated 10.10.2000 and therefore, the impugned select list prepared in conformity therewith and the reservation policy of the state is legal and valid. According to them, the candidates appearing at SI. 1 to 10 though APST candidates, they secured their position on their merit and only two non-APST candidates whose names had also appeared in the earlier select list found place at SI. 11 and 12 in the new list. The Respondent/writ Petitioners having been wrongly included in the earlier select list and further having failed to get selected against the 20% unreserved vacancies on their merit, there was no room for them to be aggrieved and the petitions were liable to be dismissed, they asserted. It was averred that the posts at SI. 1 to 12 were treated as posts against 20% unreserved posts against which best meritorious candidates were selected leaving the rest to be filed by reserved category candidates. This being wholly in consonance with the reservation policy of the State and the Principles laid down in the office memorandum dated 22.5.89 adopted by the Government of Arunachal Pradesh by the office memorandum dated 10.10.2000 was unexceptional. 9. The commission in its affidavit replied that the impugned select list was prepared in view of the communication No. PERS-14/2003/782 dated 22.10.2003 issued by the secretary to the Government of Arunachal Pradesh, department of Personnel, Administrative Reform and Training, Itanagar and the office memoranda dated 4.5.2001 and 10.10.2000. According to it, the impugned select list had been prepared in conformity with the State reservation policy of 80:20 and that accordingly two non-APST candidates were retained in the list in order of merit and the names of 14 non-APST candidates included in the earlier select list being in excess in terms of the reservation policy, had to be omitted. 10. 10. The learned Single Judge by the impugned judgment and order, set aside the fresh list holding that in view of the reservation policy of the State as contained in the office memoranda dated 26.3.91 and 4.5.2001, the office memorandum dated 10.10.2000 was wrongly applied in the selection process. 11. In coming to this conclusion, the learned Single Judge took note of a decision of a Division Bench of this Court in State of Arunachal Pradesh v. Ashok Kr. Yadav and Ors. 2002 (1) GLT 223. Consequently, it was directed that the Respondents/writ Petitioners be issued appointment letters for their respective posts in terms of the earlier select list dated 26.6.2003 canceling the appointments made on the basis of the list quashed. 12. The learned Advocate General argued that as the reservation policy of the State was not under challenge and the advertisement clearly spelt out that 20% of the vacancies were to be filed up by open competition, the learned Single Judge erred in the proceeding on the premise that in the facts and circumstances of the case, the office memorandum dated 10.10.2000 was not attracted. The impugned select list dated 5.11.2003 being in conformity with the States reservation policy, the advertised stipulations and the relevant administrative decisions prescribing the mode of filling up unreserved vacancies by way of direct recruitment, the impugned judgment and order is erroneous on the face of the records and is liable to be interfered with, he urged. The learned Advocate General maintained that a conjoint reading of the office memoranda dated 22.5.89, 26.3.91, 10.10.2000 and 4.5.2001 would make it explicit that the same were in conformity with the mandate contained in Article 16(4) of the Constitution of India and the impugned select list being in consonance therewith, the learned Single Judge ought not to have interfered with the same. He submitted that the decision rendered in State of Arunachal Pradesh v. Ashok Kr. Yadav and Ors., (supra), has no relevance in deciding the issue involved. 13. On a pointed query made by this Court, the learned Advocate General clarified that reservation in the posts involved was to the extent of 80% meant it for APST candidates and the remaining 20% was open for all and thus not reserved for any particular category of candidates. Without prejudice to the above, Mr. 13. On a pointed query made by this Court, the learned Advocate General clarified that reservation in the posts involved was to the extent of 80% meant it for APST candidates and the remaining 20% was open for all and thus not reserved for any particular category of candidates. Without prejudice to the above, Mr. Baruah, however, submitted that the Commission in any case had no authority to recast a select list for appointment by applying the reservation policy, its sole duty being only to recommend adequate number of candidates in order of merit vis-a-vis the posts advertised. In that view of the matter, the learned Advocate General submitted that, if deemed fit, this Court may direct restoration of the earlier select list, leaving it, however, to the State authorities to make appointments therefrom against the posts in question subject to the options exercised by the Candidates and of course the reservation policy. Mr. Baruah, sought to buttress his arguments by relying on the following decisions of the Apex Court in Post Graduate Institute of Medical Education and Research, Chandigarh, and Ors. v. K.L. Narasimhan and Anr., (1997) 6 SCC 283 and NTR University of Health Sciences Vijaywada v. G. Babu Rajendra Prasad and Anr., (2003) 5 SCC 350 . 14. Mr. Baruah, learned Sr. Counsel for the Respondents/writ Petitioners, however, submitted that bearing in mind the reservation policy reserving 80% of the vacancies for APST candidates, it is inconceivable that such candidates be allowed to compete for the remaining 20% unreserved vacancies and as the office memorandum dated 10.10.2000 has the effect of ensuring the same, the learned Single Judge was perfectly justified in quashing the fresh select list. According to him, unreserved vacancies have to be restricted to the non-APST/General candidates to be filled up in order of merit as otherwise the words "20% will be unreserved (open competition)" appearing in the advertisement would he rendered nugatory. The very fact that though 98 posts had been earmarked to be filled up by process in hand, only 84 candidates have been named in the impugned select list manifests that the State authorities had acted on extraneous considerations to exclude the bulk of the non-APST/General candidates to accommodate APST candidates against the balance posts, he contended. According to Mr. The very fact that though 98 posts had been earmarked to be filled up by process in hand, only 84 candidates have been named in the impugned select list manifests that the State authorities had acted on extraneous considerations to exclude the bulk of the non-APST/General candidates to accommodate APST candidates against the balance posts, he contended. According to Mr. Baruah, the impugned judgment and order is in conformity with the reservation policy both in letter and spirit and, therefore, does not merit any interference in appeal. He backed up his arguments relying on a decision of the Apex Court in State of Punjab and Ors. v. Dr. R.N. Bhatnagar and Anr., (1999) 2 SCC 330 and the State of Arunachal Pradesh v. Ashok Kr. Yadav and Ors., (supra). 15. We have extended our cautious consideration to the rival arguments. At the outset it has to be noticed that the reservation policy of the State is not in question. In other words, the decision to effect reservation of 80% in Group "A" and Group "B" posts for APST candidates to be filled up by direct recruitment as is discernible from the OM- 13/90 dated 26/3/91 and No. OM/38/76 (Vol-II) Part-1 dated 4/5/2001 is not under challenge. In terms of the said office memoranda, a model 100 point roster indicating the points of reservation each for Group "A" and Group "B" posts has been drawn up which reveals that the first 4 points in the roster are shown as reserved and the 5th as unreserved and this pattern is followed for 100 posts. As is decipherable from the memorandum dated 26.3.91, the decision to prescribe 80% reservation for APST candidates in Group "B" posts to be filled up by direct recruitment had been vide communication dated 24.9.90, which is not in dispute. For ready reference, however, relevant excerpts of the memoranda dated 24.9.90, 26.3.91 and 4.5.2001 referred to above are extracted herein below. 24.9.90: "In exercise of powers conferred by Clause (4) of Article 16 of the Constitution of India, the Governor of Arunachal Pradesh is pleased to order that 80% (Eighty percent) of the Group 'B' posts which are filled up by direct recruitment shall be reserved for Arunachal Pradesh Scheduled Tribe candidates. This notification shall come into force with immediate effect." 26.3.91. This notification shall come into force with immediate effect." 26.3.91. "Consequent upon reservation of 80% of the Group 'B' posts to be filled up by Direct Recruitment, as notified vide Govt. notification of even No. of 24.9.90, the ratio of reservation of direct recruitment of Group 'B' post shall be 4:1. To facilitate proper implementation of the Government decision in this respect, a Model 100 Point Roster indicating the point of reservation is appended herewith for strict compliance by all concerned. A new roster in the similar manner shall be drawn up on exhaustion of all the points of the old roster. The roster system shall come into force w.e.f. the date of Government notification issued vide Govt. notification of even No. dated 24.9.90." 4.5.2001 in exercise of powers conferred by Clause (4) of Article 16 of the Constitution of India and in supersession of Government notification issued vide No. OM-13/90 dated 20.3.95, the Governor of Arunachal Pradesh is pleased to order that 80% (Eighty percent) of the posts in Group 'A' under the Government of Arunachal Pradesh which are to be filled up by direct recruitment, shall be reserved for Arunachal Pradesh Schedule Tribe candidates. A model 100 point roster indicating the point of reservation in Group 'A' post is appended as Annexure-I for strict compliance by all concerned." The portion of the advertisement dealing with reservation in the matter of appointment also deserves to be extracted as follows. As per Government of Arunachal Pradesh reservation policy of 80:20, 80% of the posts will be reserved for APST candidates and rest 20% will be unreserved (open competition) 16. A conjoint reading of the aforementioned notifications/office memoranda and the reservation clause in the advertisement unequivocally proclaims that in terms of the reservation policy in force, 80% of the Group "A" and "B" posts have been reserved for APST candidates to be filled up by direct recruitment and the remaining 20% posts were unreserved, to be filled up by open competition. Whereas the State contends that both in terms of the reservation policy and the related clause in the advertisement, the 20% unreserved posts could be competed for by all candidates including the APST candidates, the Respondents/writ Petitioners' plea is that the said posts are available to be competed for exclusively by the non-APST/General candidates only. 17. Whereas the State contends that both in terms of the reservation policy and the related clause in the advertisement, the 20% unreserved posts could be competed for by all candidates including the APST candidates, the Respondents/writ Petitioners' plea is that the said posts are available to be competed for exclusively by the non-APST/General candidates only. 17. It is not the case of either of the parties that the prescription of reservation noticed hereinabove is the mandate of any law governing the conditions of recruitment to the services of the State of Arunachal Pradesh. The reservation of posts is, therefore, a State policy to advance the cause of the backward classes of its citizens which in its opinion are not adequately represented in its services as envisioned in Article 16(4) of the Constitution of India. It indeed was not argued before us that the reservation as above had not been occasioned by the state as a consequence of the Constitutional empowerment qua Article 16(4). Logically, therefore, the reservation of 80% of the posts earmarked for the APST candidates though inviolable, it does not follow that the remaining 20% of posts as a consequence, is reserved for the general as well as non-APST candidates. The reason is obvious. The permissible test of sanctioning reservation of appointments or posts as envisaged in Article 16(4) of the Constitution of India being the States satisfaction about the backwardness of the class of citizens for which the reservation is prescribed it is neither available nor applicable for the general and/ or non-APST candidates not suffering from such disadvantage. In other words, as the above constitutional provision does not sanction reservation of posts in favour of any class of citizens which in the opinion of the State is not socially, economically, educationally and otherwise backward, any reservation for them would not only be opposed to the letter and spirit of Article 16(4) of the Constitution of India but would also be grossly antithetical to the guarantee of equality enshrined in Article 16(1). In our considered view, therefore, 20% of the unreserved posts cannot be construed to be reserved for general and non-APST candidates to exclude participation of APST candidates for direct appointment thereto on the basis of merit. The appointment of any APST candidate to the 20% unreserved posts would be in addition to the appointments against the 80% posts reserved for them. The appointment of any APST candidate to the 20% unreserved posts would be in addition to the appointments against the 80% posts reserved for them. Thus whereas no intrusion into the 80% reserved posts by any general/non-APST candidate is permissible, having regard to the constitutional mandate, appointment of an APST candidate on superior merit against the remaining unreserved 20% posts in preference to the non-APST/general candidates would not be constitutionally invalid. The contention that no APST candidate could have been considered for appointment even on merit against the 20% unreserved posts to be treated as exclusively kept apart for the non-APST/general candidates does not merit acceptance in the face of the constitutional scheme alluded hereinabove. 18. Article 14 of the Constitution of India which enshrines the guarantee of equality has a live presence in Article 16(1) in the matter of appointment in the services under the State. Article 38 read with the preamble of the Constitution makes it imperative for the State to accord social and economic justice. Article 335 of the Constitution postulates that claims of opportunities of Scheduled Castes and Schedule Tribes should be taken into consideration in making appointments to the services and posts in connection with the affairs of the Union or of a State, however, consistent with the maintenance of efficiency of administration. Appointment to an office or post under the State is one of its policies to extend economic justice as a part of social justice for integrating. Schedule Castes and Schedule Tribes in the social main stream and to offer an opportunity to improve excellence. The corresponding duty can be traced to the related Directive Principle contained in Article46 requiring the State to take adequate steps to promote with special care the educational and economic interest of the weaker sections of the people and in particular of the Schedule Castes and Schedule Tribes and to protect them from exploitation and all forms of injustice. It is in this background that a treatment to the members of the Schedule Castes and Schedule Tribes different from that meted out to others in the matters relating to employments or appointments to any office under the State, as permissible under Article 16(4) of the Constitution of India is not violative of the fundamental right to equality of opportunity in matters guaranteed under Article 16(1) thereof. 19. 19. The Constitutional right to equality guaranteed under Article 14 and Article 16(1), therefore, permits protective discrimination in favour of backward classes of citizens who in the assessment of the State are not adequately represented in the State services. This protective discrimination in favour of the disadvantaged segments of the society is judicially approved as appointment to an office or post provides an opportunity to acquire equality of status and dignity of person. 20. This delicate balance between the constitutional provisions guarantying equality and casting an obligation on the State to ensure measures for ushering socio-economic justice in tune with the preamble of the Constitution was aptly summed up by the Apex Court in Indra Sawhney and Ors. v. Union of India and Ors. AIR 1993 SC 477 as follows. Equality postulates not merely legal equality but also real equality. The equality of opportunity has to be distinguished from the equality of results. The various provisions of out Constitution and particularly those of Articles 38, 46, 335, 338 and 340 together with the Preamble, show that the right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It is a positive right, and that the State is under an obligation to undertake measures to make it real and effectual. A mere formal declaration of the right would not make unequals equal. To enable all to compete with each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 and 16(1) no doubt would by themselves permit such positive measures in favour of the disadvantages to make real the equality guaranteed by them. 21. The underlying objective of reservation in services as approved and authorized by Article 16(4) of the Constitution of India have been tersely summed up by the Apex Court in Dr. Preeti Srivastava and Anr. v. State of Madhya Pradesh and Ors., AIR 1999 SC 2984 in the following words. Reservation is thus a dynamic and flexible concept. The departure from the principle of equality of opportunity has to be constantly watched. So long as the backward group is not adequately represented in the services under the State, reservations should be made. v. State of Madhya Pradesh and Ors., AIR 1999 SC 2984 in the following words. Reservation is thus a dynamic and flexible concept. The departure from the principle of equality of opportunity has to be constantly watched. So long as the backward group is not adequately represented in the services under the State, reservations should be made. Clearly, reservations have been considered as a transitory measure that will enable the backward to enter and be adequately represented in the State services against the backdrop of prejudice and social discrimination. But finally, as the social backdrop changes and a change in the social backdrop is one of the constitutional imperatives, as the backward are able to secure adequate representation in the services, the reservations will not be required. Article 335 enters a further caveat. While considering the claims of Scheduled Castes and Scheduled Tribes for appointments, the maintenance of efficiency of administration shall be kept in sight. 22. That for the constitutional edict of equality to be meaningful, an affirmative action though ostensibly discriminatory but directed towards eliminating defacto inequalities and elevating the weaker sections of the community to the same plane as of the more fortunates, was highlighted by the Apex Court in Jagdish Lal and Ors. v. State of Haryana and Ors. (1997) 6 SCC 538 , by uniquely summarizing the eminent features of the proposition in para 14 of the decision, the relevant excerpts whereof is extracted as hereunder. Equality must not remain mere idle incantation but must become a vibrant living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to and anathema to equality on the ground that every individual is entitled to equality of opportunity based purely on the merit mantra judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities-but on the presence of abilities and opportunity for excellence in each cadre/grade. Where, therefore, there is inequality, in face, legal equality always tends to accentuate inequality. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities-but on the presence of abilities and opportunity for excellence in each cadre/grade. Where, therefore, there is inequality, in face, legal equality always tends to accentuate inequality. It is, therefore, necessary to take into account defacto inequalities, which exist in the society and on order to bring about real equality, affirmative action fills the bill and allows to give preference to the socially and economically disadvantaged persons by afflicting handicaps on those more advantageously placed. Such affirmative action though apparently discriminatory, is calculated to produce equality in results on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger, more powerful and disadvantaged (sic) sections so that each member of the community, whatever be his birth, occupation or social position, may enjoy equal opportunity of using to the full, his natural endowments of physique, character and intelligence. 23. The graphic exposition of the constitutional objectives adumbrated hereinabove unfailingly proclaim that the liberty of the State to provide for reservation of appointments and posts in favour of any backward class of citizens not adequately represented in the services under it, is with the sole purpose of securing social and economic justice to them by removing actual inequalities. Logically, therefore, any reservation in the State services in favour of any class or classes of citizens neither considered nor claimed to be backward under Article 16(4) of the Constitution is inconceivable. Such a concept, therefore, do not find place in any of the Constitutional provisions. Bearing in mind the constitutional aim of promoting reservation in favour of the backward class of citizens, such a notion in our view would be mutilatively opposed to the very spirit and essence of the preamble of the Constitution and the other related provisions. Not only such a claim, if entertained, would offset the avowed purpose of reservation in favour of the backward class or classes of citizens conceived of by the makers of the Constitution, the inequality in status and opportunity sought to be effaced by the protective discrimination through the permissive affirmative action of the state would be visibly restored and perpetuated. Not only such a claim, if entertained, would offset the avowed purpose of reservation in favour of the backward class or classes of citizens conceived of by the makers of the Constitution, the inequality in status and opportunity sought to be effaced by the protective discrimination through the permissive affirmative action of the state would be visibly restored and perpetuated. Any reservation in favour of any class of citizens not subjected to any disadvantage, unlike their less fortunate brethren would be exterminative of the Constitutional endeavour to strike an equality between two unequally situated classes of citizens in the interest of social justice. 24. Reverting to the contextual facts, the reservation policy is obviously in exercise of the authority sanctioned by the Constitution under Article 16(4) thereof. The reservation of 80% of posts for the APST candidates in the services under the Government of Arunachal Pradesh is in terms of the Constitutional prerogative discernible in the above provisions of the Constitution. Such a policy, therefore, cannot be construed to extend reservation to the general/non-APST candidates for the remaining 20% of the vacancies as it would be potentially antithetical to the Constitutional sanction for reservation comprehended in Article 16(4). Not only such reservation in favour of the general/APST candidates is inconceivable in the existing Constitutional framework, shutting out a more meritorious reserved category candidate from the 20% of the vacancies on the misconceived notion of reservation in favour of general/non- APST candidates would inevitably result in compromising with merit in public service, consistently frowned upon by Courts being detrimental to administrative excellence. In the above conspectus of the facts and law, we are of the firm, opinion that the Respondent/ writ Petitioners' claim of reservation of posts to the extent of 20% for the general/non-APST candidates to facilitate accommodation of such candidates to the exclusion of an APST candidates otherwise enjoying the benefit of reservation of 80% posts, is untenable and can by no means have judicial imprimatur. 25. The permissibility of a reserved category candidate to vie for and get accommodated on the basis of merit against an unreserved post without affecting the prescribed percentage of reservation was highlighted by the Apex Court in R.K. Sabharwal and Ors. v. State of Punjab and Ors. (1995) 2 SCC 745 where it expressed itself as hereinbelow. 25. The permissibility of a reserved category candidate to vie for and get accommodated on the basis of merit against an unreserved post without affecting the prescribed percentage of reservation was highlighted by the Apex Court in R.K. Sabharwal and Ors. v. State of Punjab and Ors. (1995) 2 SCC 745 where it expressed itself as hereinbelow. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the members of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. 26. The authorities cited at the bar may now be referred to. The decision in Post Graduate Institute of Medical Education and Research, Chandigarh, and Ors. (supra), deal with reservation in a single post cadre which, therefore, does not appear to be very relevant in the present context. 27. The decision in NTR University of Health Sciences Vijaywada, (supra), was referred to by the learned Advocate General for emphasizing on the above observations in R.K. Sabharwal, (supra), and, therefore, we refrain from dilating on the factual background of the reported case. 28. The decision in the State of Arunachal Pradesh v. Ashok Kr. Yadav, (supra), which appears to be the sheet anchor of the case of the Respondents/writ Petitioners, deserves to be dwelt upon in some details. 28. The decision in the State of Arunachal Pradesh v. Ashok Kr. Yadav, (supra), which appears to be the sheet anchor of the case of the Respondents/writ Petitioners, deserves to be dwelt upon in some details. By an advertisement issued by the Commission on 23.9.99, applications were invited for filling up 22 posts of Assistant Engineers (Civil) Group B under the Irrigation and Flood Control Department, Government of Arunachal Pradesh. Out of these 22 posts, 18 were reserved for the APST candidates pursuant to the reservation policy contained in the notification dated 24.9.90. One Shri Ashok Yadav and Sanjay Kr. Shrivastav, both non-APST candidates applied and were recommended by the Commission by placing them at SI. No. 8 and 14 in the combined merit list of candidates but interse, non-APST candidates at No. 3 and 4. The APST candidates at SI. 1 and 2 in their merit list had scored higher than Shri Yadav and Shrivastav. The State authorities shifted the two more meritorious APST candidates to the category of non APST candidates and removed the names of Shri Yadav and Shrivastav. This action was successfully challenged by Shri Yadav and Shrivastav by filling two writ petitions, hi the appeal filed by the State, it was contended on behalf of the Respondents/writ Petitioners that the reservation policy in essence conveyed that 80% of the posts were earmarked for the APST candidates and correspondingly 20% posts for the non-APST candidates and that by any means APST candidates could not be considered for appointment against such posts exclusively reserved for the non-APST candidates. Reference was made to the 100 point roster which provided for one unreserved point at every 5th point thereof as well as the notification dated 26.3.91 indicating the ratio for reservation of direct recruitment to the Group B posts to be 4:1. Reliance in support of the above contention was placed on a decision of the Apex Court in State of Punjab v. Dr. R.N. Bhatnagar and Anr., (supra). The Division Bench of this Court while dismissing the appeal, affirmed the conclusion of the learned Single Judge that the non-APST candidates had no competition with the APST candidates and that they were entitled to be appointed as per their merit inter se non-APST candidates against vacancies meant for them in terms of the roster framed. The Division Bench of this Court while dismissing the appeal, affirmed the conclusion of the learned Single Judge that the non-APST candidates had no competition with the APST candidates and that they were entitled to be appointed as per their merit inter se non-APST candidates against vacancies meant for them in terms of the roster framed. In so concluding, the Division Bench drew sustenance from the decision of the Apex Court in State of Punjab v. R.N. Bhatnagar, (supra). 29. In the above premises, reference to the decision in State of Punjab v. Dr. R.N. Bhatnagar and Anr. becomes indispensable. The controversy there centered around appointment to the post of Professor of Opthalmology in Government Medical College, Patiala. Rule 9 of the Punjab Medical College Education Service (Class 1) Rules, 1978, laying down the method of appointment to the said post prescribed that 75% of such posts would be filled up by promotion and 25% by direct recruitment. The concerned cadre in the College consisted of 5 posts and according to the State Appellants on the basis of the aforesaid Rules governing recruitment in question, three vacancies had to be filled up by departmental promotees while the 4th vacancy by direct recruitment and thereafter the succeeding vacancies were to be filled up by the promotees and direct recruits in the successive cycle of 3.1. According to the State Appellants, the vacancies in question was the 16th one and on the operation of the quota rule and the roster cycle of 3:1 it was available to a direct recruit and accordingly the vacancy was advertised to be filled up by direct recruitment. The Respondent questioned this decision by filing the writ petition before the Punjab and Haryana High Court contending that as there were total 5 posts in the cadre, 75% thereof namely 3.75 post had to be reserved for promotees and 1.25 persons for the direct recruits. According to him, on rounding up the fractions, 4 posts in the cadre were to be filled up by promotees and one post by direct recruitment and thus as at the relevant time as one direct recruit was serving in the cadre, the vacancy in question was to be essentially filled up by a promotee. The Respondent founded his claim on the decision of the Apex Court in R.K. Sabharwal, (supra). 30. The Respondent founded his claim on the decision of the Apex Court in R.K. Sabharwal, (supra). 30. The Apex Court while distinguishing the ratio of the decision rendered in RK Sabharwal, (supra), observed that it was in a context different from the one emerging from Rule 9 of the Rules and held that the said rule was not one of reservation as envisaged under Article 16(4) of the Constitution of India. The Apex Court held that in R.K. Sabharwal, (supra), the question posed related to the operation of the roster indicating reserved points to be filled up by Schedule Caste, Schedule Tribe and backward class candidates. The reservation for these categories in employment was to be achieved by earmarking the requisite percentage of posts for them and by identifying these posts on the roster points so much so that when the roster turn a full cycle, posts earmarked on reserved points would be available to the corresponding reserved category candidates. It held that Rule 9 of the rules, however, did not prescribe reservation of posts as conceived of under Article 16(4) of the Constitution of India but was only a rule of recruitment from two different sources in the Professors Cadre, 75% of the posts to be filled up by promotion and 25% by direct recruitment, thus providing two entry points for the cadre. Considering the paradigm of the rules, it was held that the roster for three promotees and one direct recruit was to be continued every time a vacancy arose and there was no question of filling up a vacancy arising out of a direct recruit, by a direct recruit or on the retirement of a promotee, by a promotee. It ruled that, therefore, the quotas of percentage of departmental promotees and direct recruits had, to be worked out on the basis of the roster points, taking into consideration, the vacancy falling due at a given point of time and irrespective of the identity of the person retiring from the post to be filled up by the onward motion of three promotees and one direct recruit. In other words, whenever in entry cadre of Professor of Ophthalmology vacancies arise for being filled up at any given point of time, those had to be filled up by operating the roster in such a way that available vacancies get filled up by allotting 75% of them to departmental promotees and 25% to direct recruits. Noticing that the vacancy in question was 16th in the roster point which was meant for a direct recruit, the Respondent/writ Petitioner's claim was upheld on that consideration. 31. A plain reading of the above decision makes it abundantly clear that the same was rendered in a totally different setting of facts involving a recruitment rule inter alia prescribing the quotas for recruitment to the posts in the services governed by it. No reservation as conceived of under Article 16(4) of the Constitution of India was ordained thereby. Consequently the reasonings and the ratio of that decision are of no relevance for adjudicating the issue in hand, the compartmentalization of quotas of posts for the promotees and direct recruits as conceived of in the rules being wholly alien to the Constitutional scheme of reservation in favour of backward class of citizens conceptualized in Article 16(4) of the Constitution of India. The analogy as applied in the above decision, therefore, cannot be drawn to the present case. 32. With utmost humility, we, therefore, differ from the view expressed by the division Bench of this Court in State of Arunachal Pradesh v. Ashok Kr. Yaday, (supra), upholding the claim of reservation of 20% posts in favour of the non-APST/general candidates as recorded therein. The representation of quota of posts under the rules in state of Punjab v. Dr. R.N. Bhatnagar, (supra) and the reservation in State of Arunachal Pradesh v. Ashok Kr. Yadav in terms of the reservation policy of the State being two distinctly different concepts independent of each other with characteristic implications, one cannot be imported into the other. The true import of reservation under Article 16of the Constitution of India did not come up for consideration in State of Arunachal Pradesh and Ors. v. Ashok Kumar Yadav and Ors. and, therefore, according to us, the decision rendered therein does not lay down the correct law on the issue in question. 33. On an overall consideration of all relevant aspects, we, therefore, find sufficient force in the appeals. v. Ashok Kumar Yadav and Ors. and, therefore, according to us, the decision rendered therein does not lay down the correct law on the issue in question. 33. On an overall consideration of all relevant aspects, we, therefore, find sufficient force in the appeals. The impugned judgment and order being unsustainable in the above facts and circumstances is hereby set aside. We, however, find that the impugned select list contains names of only 84 candidates though the selection was for 94 posts. There is no explanation what so ever for such omission. We have considered the submission of the learned Advocate General agreeing to the annulment of the impugned select list to include the deserving 98 candidates in order of merit to be appointed in terms of the reservation policy and the options exercised by them. As we have, by this decision, determined the legality/validity of the State action on principle, we find ourselves in agreement with the above submission. To obviate any kind of confusion with regard to the list, we, therefore, direct Commission to draw up a fresh list of 98 candidates strictly in order of merit by adhering to the reservation policy of the State and the decision hereby rendered. This should be done within a period of one month from the date of receipt of certified copy of this order. The appeals stand allowed in the above terms. No costs. Appeal allowed.