JUDGMENT By the Court.—Heard Shri Satish Chaturvedi for the petitioner. Standing Counsel appears for State respondents. Shri M.A. Qadeer appears for U.P. Public Service Commission. Shri R.B. Singhal appears for Dr. Richa Singh-respondent No. 4. 2. The petitioner is MBBS (1994), and M.D. Obstetrics & Gynaemic from Benaras Hindu University, Varanasi. She applied for appointment as a Lecturer in pursuance of an advertisement published by the U.P. Public Service Commission in the newspapers on 27.8.2000 in State Medical Colleges in U.P. Out of 26 disciplines, the advertisement included ‘Obstetrics and Gynaemic’, at item No. 10, advertising three vacancies, one each for scheduled caste, other backward caste and general category. More than 100 applications were received for these three posts. 3. A merit list was prepared, on the basis of a written test taken on 28.7.2002. Three candidate, each from the three categories were included in separate merit lists. In all nine candidates were selected for interviews in the ratio of 1:3 to the post. The petitioner topped the list of general category candidates. The final result was declared on 20.11.2002. The petitioner found that whereas only one vacancy each was reserved for scheduled caste, other backward classes and general categories; one candidate was selected for scheduled caste, one from other backward class and that the general category vacancy was taken by Dr. Richa Singh-respondent No. 4, belonging to the other backward classes category. The petitioner filed this Writ Petition on 10.12.2002 for quashing the selections of Dr. Richa Singh-respondent No. 4, a backward classes candidate selected in general category. 4. In the counter affidavit of Shri Radhey Lal, Section Officer in the office of U.P. Public Service Commission, Allahabad filed in April 2003, it is stated that in all nine candidates were interviewed on 14.9.2002, including the petitioner. Dr. Richa Singh was selected as the other backward classes candidate and Dr. Urmila Karya as the scheduled caste candidate in accordance with Rule 3 (6) of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (in short the Act of 1994). It is denied that the petitioner topped the screening test. Dr. Richa Singh scored more marks than her, and was selected as against unreserved/general vacancy in the open competition. It is denied that the petitioner topped the screening test. Dr. Richa Singh scored more marks than her, and was selected as against unreserved/general vacancy in the open competition. Sub-section (6) of Section 3 of the Act of 1994, provides : “(6) 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).” 5. Shri Satish Chaturvedi, learned counsel for the petitioner contends that three vacancies, one each in the category of scheduled caste, other backward classes and general were advertised. The candidates competed in their own categories. There was no open competition, to give the benefit of sub-section (6) of Section 3 of the Act of 1994 to Dr. Richa Singh. It is contended by him that according to the decision of Division Bench of this Court in Dinesh Kumar Shukla v. State of U.P. and another, 2004 (4) AWC 3487 (LB), when the candidates compete in their own categories, sub-section (6) of Section 3 of U.P. Act of 1994 is not attracted. In order to apply sub-section (6) of Section 3 of the U.P. Act of 1994, the candidates should be selected on the basis of merit in an open competition. The selections in the present case were made amongst the candidates in their own categories and that the three candidates, who were selected in the written test and empanneled for each vacancy, the competition was not at the same level. Separate lists were prepared on the basis of the qualifying marks, in the written examination for which separate criteria was applied to each category. The reserved category candidates securing higher marks therefore could not be said to have scored higher marks in an open competition. 6. Shri Satish Chaturvedi has referred to the judgments in Post Graduate Institute of Medical Education and Research v. K.L. Narasimhan, (1997) 6 SCC 283 para 5; Union of India v. Satya Prakash, (2006) 4 SCC 550 ; Indra Sawhney v. Union of India, 1992 (Supp) (3) SCC 217 and M. Nagraj and others v. Union of India and others, (2006) 8 SCC 212 . It is contended by him that in all these cases the Supreme Court referred to selections on merit in open competition. It is contended by him that in all these cases the Supreme Court referred to selections on merit in open competition. The scheme of the Act of 1994 does not provide for offering the vacancies to a reserved category candidate, securing higher marks in separate examination in which each of them were examined and interviewed with separate criteria. Where the vacancies are advertised category-wise and applicants who have applied in their own category are selected for interviews separately in their own category and are awarded marks as reserved category candidates, a candidate securing higher marks should not be treated to have competed with all the candidates in open competition. 7. In Post Graduate Institute of Medical Education & Research, Chandigarh and others v. K.L. Narasimhan, (1997) 6 SCC 283 , the Supreme Court observed : “5. It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.” (Emphasis added) 8. In Indra Sawhney’s case (supra) the Supreme Court held in paragraph 811: “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.” (Emphasis added) 9. In M. Nagraj’s case (supra) the Supreme Court held in pragraph 60 : “60. In M. Nagraj’s case (supra) the Supreme Court held in pragraph 60 : “60. In Indra Sawhney Jeevan Reddy, J. noted that reservation under Article 16(4) does not operate on communal ground. Therefore, if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal the Supreme Court held that while general category candidates are not entitled to fill the reserved posts, reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of Backward Class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class.” (Emphasis added) 10. In Dinesh Kumar Shukla (supra) this Court relying upon a judgment in Arvind Kumar Singh v. State of U.P., Writ Petition No. 5844 (SS) of 1999 held that : “38........ In a selection which can be termed as open competition with general category candidates, the candidature of the reserved category candidates as well as the general category candidates is to be tested on the same merit and if in that case a reserved category candidate succeeds in the open competition with general category candidates, he would be placed amongst the general category candidates. In the instant case, the result so declared in the written examination does indicate that a separate criteria appears to have been adopted for examining the copies with respect to reserved category candidates and general category candidates. Therefore, a separate merit list have been made and the result of the written examination have been declared categorywise. Subsequently separate interview were also held and the result has also been declared separately categorywise. The selection thus so made cannot be said to be a selection as a result of open competition with the general category candidates. Therefore, a separate merit list have been made and the result of the written examination have been declared categorywise. Subsequently separate interview were also held and the result has also been declared separately categorywise. The selection thus so made cannot be said to be a selection as a result of open competition with the general category candidates. It may be true that in view of the advertisement the selection process ought to have been adopted in a manner also that it could have been an open competition with general candidates, i.e. by comparing the merit of the reserved category candidates along with the merit of the general category candidates and therefore final select list could have been prepared by placing the reserved category candidates in the list of finally selected candidates as per their merit but this procedure was not adopted. In the absence of given procedures being adopted, the benefit of Section 3 (6) of the Act perhaps would not be available to the reserved category candidates.” 39. The Court, therefore, after finding that the selection in question was not a selection on merit in an open competition amongst the general category candidates and reserved category candidates, upheld the contention of the petitioners that their selection was rightly made and there was no violation of the provisions of the Reservation Act, 1994. We endorse the view expressed in the aforesaid case." 11. In Civil Misc. Writ Petition No. 42041 of 2000, Hari Ram Yadav v. State of U.P. and others, decided on 5.10.2005, one of us (Hon. Sunil Ambwani, J.), hearing the writ petition in a single Judge bench, held : "20. While protecting the interest of weaker sections of the society the interests of the other sections of the society cannot be ignored. The object of providing reservations as an affirmative action is to allow those who are historically weaker and disadvantaged and to give them a chance to compete with favourably placed persons in society. Such an object however landable and socially correct as it may be, cannot be stretched too far, to adjust those who have competed in their own category, but have secured higher marks, in general category and to disturb the entire balance. Such an object however landable and socially correct as it may be, cannot be stretched too far, to adjust those who have competed in their own category, but have secured higher marks, in general category and to disturb the entire balance. It is always open to reserved category candidates to give up the benefit of reservation and to compete with general category to take a chance on larger share of posts, or to compete in their own category either with or without relaxation of age or other exemptions and a separate procedure of selection if it is so provided. However having decided to compete in their own category, they cannot claim to be adjusted in general category and thereby disturbing the balance, and endangering the ratio and proportion of different categories of candidates. 21. The special provisions of reservations provided under Articles 15 (4) and 16 (4) may not to be stretched too far, to cause reverse discrimination. The reservations for SC/ST and Other Backward Classes have already exhausted the time period conceded by the Constitution makers. It is not for this Court to go into the wisdom of the Parliament or the State Assemblies to continue the provisions for reservations even after 55 years, since the Constitution was adopted, enacted and given to ourselves. The Courts provided with the task to interpret the Constitution have to guard the interests of all the sections of the society, and should not stand in the dock, to be accused of interpreting the laws only in favour of those, for which special provisions have been made under Articles 15 (4) and 16(4) of Constitution of India. Once the SC/ST and Backward Classes are identified and claim reservations provided for them under Articles 15 (4) and 16 (4) of Constitution of India, the delicate balance must be maintained. In para 32 of the judgment in Post Graduate Institute of Medical Education v. Faculty Association (supra), clarifying the evolution of law of reservation, the Constitution Bench in its unanimous opinion, observed : “32. Articles 14, 15 and 16 including Articles 16 (4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Articles 14, 15 and 16 including Articles 16 (4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji case, Devadasan case and Sabharwal case. Even in Indra Sawhney case the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15 (4) is an enabling provision like Article 16 (4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15 (4) must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram and D.A. Rajendra v. Union of India. It has been indicated in Indra Sawhney case that clause (4) of Article 16 is not in the nature of an exception to clauses (1) and (2) of Article 16 but an instance of classification permitted by clause (1). It has also been indicated in the said decision that clause (4) of Article 16 does not cover the entire field covered by clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.” 22. A close examination of the provisions of reservation in the U.P. Act No. 4 of 1994, shows that the fences dividing the categories have been raised to such levels that these categories are not allowed to cross or jump over them. A close examination of the provisions of reservation in the U.P. Act No. 4 of 1994, shows that the fences dividing the categories have been raised to such levels that these categories are not allowed to cross or jump over them. The provisions of dereservation where posts are reserved for SC/OBC could not be filled even after efforts of several years, have been deleted or amended. Where all the reserved posts could not be filled in a recruitment year special recruitment is provided in sub-section (4) of Section 3, over and beyond 50% of reserved posts. The same fences cannot be allowed to be scaled by adjustment of OBC candidates in General Category. The channels must be allowed to flow freely, without any interference. 23. In Narendra Pratap Singh’s case (supra) the Court was concerned with the relaxation which may have been provided to reserved category candidates. The Court proceeded to the basis that the observations in K.L. Narsimhan’s case have not been overruled. It did not consider the submissions with regard to reverse discrimination disturbing the balance between reserved category and general category candidates, for which clear directions have been issued in M.R. Balaji, T.N. Devdasan and Aarti Ray Chaudhury. In Faculty of Association’s case the Constitution Bench had clearly over-ruled the ratio of the judgment in K.L. Narsimhan’s case decided by three Hon’ble Judges of the Supreme Court. An orbiter may not be raised to the status of ratio decidendi on the ground that it was not specifically overruled. 24. Recently the selections on posts and adjustment of OBC candidates in general categories misinterpreting sub-section (6) of Section 3 of U.P. Act No. 4 of 1994, have raised serious issues dividing the society. Over zealous appointing authorities, in order to please political bosses are further dividing the society on caste lines. The Constitution Benches of Supreme Court have repeatedly held that reservations should not be stretched too far to break down the social structure. It has, therefore, become absolutely necessary for this Court to decide and hold that sub-section (6) of Section 3 of U.P. Act No. 4 of 1994 cannot be interpreted in a manner, that those who have competed in their own reserved categories are entitled to be adjusted with general candidates, if they have secured higher marks on merits. It has, therefore, become absolutely necessary for this Court to decide and hold that sub-section (6) of Section 3 of U.P. Act No. 4 of 1994 cannot be interpreted in a manner, that those who have competed in their own reserved categories are entitled to be adjusted with general candidates, if they have secured higher marks on merits. The Court as such holds that having chosen to compete in his category even if the reserved category candidate does not claim any exemption or is not given any advantage in selection, secures higher marks than the general candidates is not entitled to be adjusted with the general candidates. A reserved category candidate has to give his option at the time of making an application and to choose the category in which he competes, and having chosen to do so he cannot claim adjustment with general category candidates on the basis of his merit.” 12. The judgment in Hari Ram Yadav’s case was challenged in Special Appeal No. 1377 of 2005, Shiv Prakash Yadav and others v. State of U.P. and others and other connected special appeals. The special appeals were decided on 29.10.2007. In the judgment reported in 2008 (1) ESC 507 (All)(DB), it was observed that the Single Judge did not notice the Division Bench’s decision of this Court in Sanjeev Kumar Singh v. State of U.P. and others, 2007 (2) ADJ 150 , in which it was observed in para 40 : “40. At this stage, it would be prudent to notice when certain seats are reserved, it would not result in making unreserved seats compartmentalized for general category candidates i.e. unreserved candidates. There is no reservation for general category candidates. In other words we can say, when certain seats are reserved, a reserve category candidate in addition to reserve seats can always compete for unreserved seats. The unreserved seats are available to all the candidates who participate in the selection irrespective of category for which they belong but a reserve seat is available only to the category of the candidate to which such reserve seat is meant for. To illustrate, if out of 100 seats, 27 are reserved for O.B.Cs., 18 for S.C. and 2 for S.T. candidates, it would mean that an O.B.C. candidate would be able to compete against 27 seats reserved for O.B.C. as well as remaining 53 unreserved seats. To illustrate, if out of 100 seats, 27 are reserved for O.B.Cs., 18 for S.C. and 2 for S.T. candidates, it would mean that an O.B.C. candidate would be able to compete against 27 seats reserved for O.B.C. as well as remaining 53 unreserved seats. Similarly a S.C. candidate would be able to compete against 18 seats reserved for S.C. as well as remaining 53 reserved seats, and a S.T. candidate would be able to compete against 2 seats reserved for S.T. as well as remaining 53 unreserved seats. On the contrary a general category candidate would be able to compete only against 53 unreserved seats. The zone of consideration, therefore, against the unreserved seats is much wider and extend to 100% of the candidates who participate in the selection but it is not so for reserved seats. The only rider would be, if in the selection process, the test of assessment, merit etc. is different qua unreserved seats and reserved seats, and the candidates belonging to reserved seats enbloc are considered, separately at any stage, than such difference in standard or criteria or indicia having a material bearing in the assessment of merit and influence the open competition and in such case the reserve category candidate may not compete for unreserved seats on account of variation in the standard and not otherwise. It is true and as already observed above, a reasonable balance has to struck between the rival claim of respective categories.” “51. It is true that interpretation of statute would not depend on the understanding of the executive but the fact remains that on and after the enforcement of Act of 1994, in the State of U.P., Section 3 (6) is being implemented by giving adjustment to reserve category candidates against unreserved seats provided they are selected in open competition with general category candidates without availing any concession or relaxation in the standard of selection which does not include relaxation in age or fee. The State therefore has not treated relaxation in age and fee as relaxation in the standard of selection and the crucial question up for consideration before us whether such relaxation can deprive a reserve category candidate denuding his status as a candidate competing in open competition with general category candidate when all other things are equal except the fact that such candidate has availed concession in fee and/or age limit. Having given our very serious, indepth thoughts to the question, we are of the view that relaxation in age and fee cannot be treated to be a relaxation in standard of selection and shall not deny a reserve category candidates selection in open competition with general category candidates. As we have observed, the term “reservation” comprises various kinds of concession, relaxation etc. but Section 8 (1) of Act of 1994 is confined to only two kinds of relaxation/concession namely “concession in fee” and “relaxation in upper age limit”. Sub-section (2) of Section 8 however provides that if any Government order is in force on the date of commencement of the Act, providing any concession, relaxation including concession in fee for any competitive examination, interview and relaxation in upper age limit relating to reservation in direct recruitment or promotion which are not inconsistent with the provisions of the Act, shall continue to be applicable till they are modified or revoked as the case may be. We are informed that presently and for selection in dispute, only concession in fee and relaxation in upper age limit and no other concession or relaxation is available to the reserve category candidates specified under Section 3 (1) of the Act of 1994. 52.......In other words we can say that concession in fee or relaxation in upper age limit are the provision not concerned with the process of selection i.e. open competition itself but are the provisions pertaining to eligibility i.e. to bring in a candidate in the zone of consideration. Once a person is included in the zone of consideration, he is entitled to participate in the open competition irrespective of difference in the eligibility qualification. Further, if on account of his identity belonging to particular category, any procedural difference is observed in the selection itself, in that case only, such an adjustment under Section 3 (6) of the Act of 1994 would not be applicable and not otherwise. To elaborate our view, in the case in hand, the identity of individual candidate whether general, scheduled caste, scheduled tribe or O.B.C. has no relevance in the entire process of selection and it is only when the final select list is prepared, selection qua respective category of vacancies would be made. To elaborate our view, in the case in hand, the identity of individual candidate whether general, scheduled caste, scheduled tribe or O.B.C. has no relevance in the entire process of selection and it is only when the final select list is prepared, selection qua respective category of vacancies would be made. For example in the present case, all the candidates securing 50% marks and more in the preliminary qualifying written test participated in the physical test irrespective of the number of candidates qualifying against individual category. The standard of selection is common to all. Similarly in the physical test also all the candidates irrespective of their category, securing at least 50% marks qualify and appear in the main written test. Again all the candidates who secured 40% and above in main written test were declared successful in written test and thereafter, all of them appeared in interview. It is only after interview, a final merit list on the basis of marks secured in main written test and interview is prepared and thereafter the final select list is prepared applying reservation. At any stage prior thereto, the candidate’s identity had no relation or relevance in the process of selection whatsoever. Thus, in our view, ex-facie and undoubtedly, at the time of final select list, Section 3 (6) of Act of 1994 would be applicable and if a reserve category candidate has secured marks more than a last general category candidate, he is entitled to be selected against unreserved seat without being adjusted against a reserved seat.” 55. The reason for considering reserve category candidates against unreserved seats is writ large. As said earlier, an unreserved seat is available to all the candidates who are in the zone of consideration but a reserve seat is confined to a candidate of that particular person. In an open competition, general category candidate is entitled to compete only against an unreserved seat but a reserve category candidate in addition to his right to be considered against the reserve seat is also entitled to be considered against unreserved seats. His option in the application for consideration of his candidature for reserve seat is only a declaration of his intention to be considered against reserve seat without depriving himself right to be considered against an unreserved seat......." (emphasis added) 13. His option in the application for consideration of his candidature for reserve seat is only a declaration of his intention to be considered against reserve seat without depriving himself right to be considered against an unreserved seat......." (emphasis added) 13. The Division Bench in Shiv Prakash Yadav’s case observed that since in Hari Ram Yadav’s case, Sanjeev Kumar Singh’s case was not noticed, the reasoning cannot be sustained and set aside the reasoning given in Hari Ram Yadav’s case. 14. Shri R.B. Singhal, appearing for Dr. Richa Singh-respondent No. 4, submits on the basis of the averments made in her counter affidavit that she has better academic record as compared to the petitioner. The teaching experience of the petitioner of three years as Assistant Professor in Azamgarh Medical College, Azamgarh was not to be counted as there is no post graduation in Medical College at Azamgarh and that the college was not recognised by Medical Council of India. Some of the papers and articles were in fact published after August/September 2000. It is further submitted by Shri Singhal that where a reserved category candidate excels in the merit list, the candidate would go in the general category, whereas the seat reserved against the said reserved category candidate would be filled up by the reserved category candidate. He would further submit that respondent No. 4 has better academic record as she has done MBBS from Lady Hardinge Medical College New Delhi and MS (Obstetrics & Gynaecology) from S.N. Medical College, Agra. She won a gold medal and has various academic distinctions. After her selection, she joined in the year 2002 and is working as Lecturer since thereafter. 15. We have heard learned counsels appearing for the petitioner; U.P. Public Service Commission and respondent No. 4. We have also considered the provisions of Section 3 (6) of the Act of 1994 and the case law on the point. Three vacancies on the post of Lecturers were advertised, one each in the respective categories namely scheduled caste; other backward classes and general. In the counter affidavit of Shri Radhey Lal, it is stated that 120 marks awarded in the screening test were not counted for the purposes of selections based on interviews. Three vacancies on the post of Lecturers were advertised, one each in the respective categories namely scheduled caste; other backward classes and general. In the counter affidavit of Shri Radhey Lal, it is stated that 120 marks awarded in the screening test were not counted for the purposes of selections based on interviews. The screening test was only for the purposes of shortlisting and for the purposes of finding out suitable candidates for admission to the interviews under the provisions of Rule 2 (iv) of U.P. Direct Recruitment through Public Service Commission Preliminary Examination Rules, 1986 (in short the Rules of 1986). Sub-rule (iii) of Rule 3 of Rules of 1986 provides that the marks obtained in the preliminary examination will not be counted for determining the final order of merit. The petitioner has not pleaded nor has taken any such stand that the marks obtained in preliminary examination in which she was placed at serial No. 1, in the list of general category candidate was counted for the purposes of determining the merit. Further she has nowhere stated that different criteria was adopted for each category of candidates in interviews. There are no pleadings or submission to the effect that different criteria was adopted for each category of similarly qualified candidate for selection in interviews. The selection as such has to be taken to be held by way of open competition and thus sub-section (6) of Section 3 of the Act of 1994, will be attracted and that in accordance with the law settled by the Supreme Court, respondent No. 4 having secured higher marks in open competition than the petitioner, was selected on the basis of merit in the open competition with general candidates. 16. The submission of Shri Satish Chaturvedi, that if two out of three vacancies are filled up by the candidates of other backward classes and third by a scheduled caste candidate, there will be 100% reservation in the recruitment year, does not merit consideration as there is no foundation that the vacancy of general category offered for selection and filled up on the basis of merit by an other backward classes candidate, would get converted into vacancy reserved for other backward classes candidate. It will continue to be treated as a unreserved vacancy for the purposes of determination of vacancies in calculating as to whether more than 50% of the vacancies have been reserved in any particular year in the reserved category candidates. The vacancies in the general category filled up on the basis of merit in an open competition by a person belonging to reserved classes would not get converted into a vacancy for reserved category candidate. 17. The respondent No. 4 was offered appointment after her selections on December 4, 2002 and that she had joined as a Lecturer in S.N. Medical College, Agra on 7.12.2002. She is working as Lecturer for almost six years. 18. The writ petition is dismissed. ———