JUDGMENT Hon’ble Raj Mani Chauhan, J.—Heard Shri Ashok Khare, Senior Advocate for the petitioner. Shri M.A. Qadeer appears for U.P. Public Service Commission. Learned Standing Counsel appears for State. 2. The petitioner is aggrieved by the refusal of respondents to recommend/reshuffle his candidature against the vacant post of Sub Divisional Magistrate on the basis of his performance and position in the merit list of the U.P. Combined State Upper Subordinate Services Examination 1997. 3. The petitioner applied for selections in pursuance to the advertisement of the U.P. Combined State/Upper Subordinate Services Examination 1997. There were altogether 30 vacancies notified for the post of Sub Divisional Magistrate. Out of these 15 vacancies were to be filled up by the general category candidates and remaining from the reserved category candidates. The petitioner was declared successful both in the preliminary and thereafter in the written examination and was called for the interview on 6.2.1998 with roll No. 083114. At the time of interview he was asked to indicate his preference. It is alleged in paragraph-5 of the writ petition that he opted for the post of Sub Divisional Magistrate as his first preference followed by that of Deputy Superintendent of Police. He was declared successful and his name was placed at serial No. 18 in the general merit list, in the result published in Hindi daily newspaper ‘Rashtriya Sahara’ dated 14.2.1998. 4. It is contended that Shri Anand Kumar-a backward class candidate was placed at 16th position; Shri Surendra Narain Pandey was placed at 17th position and the petitioner was placed at 18th position. In para-8, it is stated, that the petitioner, upon inquiry, came to know that the aggregate marks secured by him and Shri Surendra Narain Pandey were the same namely 1099, whereas Shri Anand Kumar, the backward class candidate secured 1102 marks. Both the petitioner and Shri Surendra Narain Pandey could not get the post of Sub Divisional Magistrate. Shri Anand Kumar, a backward class candidate got the benefit of reservation and was allotted the post of Sub Divisional Magistrate. Both the petitioner and Shri Surendra Nath Pandey were allocated the post of Deputy Superintendent of Police and were placed at first and second position respectively in Provincial Police Service. 5. Shri Anand Kumar, a backward class candidate got the benefit of reservation and was allotted the post of Sub Divisional Magistrate. Both the petitioner and Shri Surendra Nath Pandey were allocated the post of Deputy Superintendent of Police and were placed at first and second position respectively in Provincial Police Service. 5. It is further stated that one Shri Suresh Kumar Vashishtha at serial No. 1 in the merit list got selected in the Indian Administrative Service and Shri Anurag Agrawal at serial No. 10 was selected in Indian Police Service in the Civil Service Examination of 1997. They did not join the post of Sub Divisional Magistrate. The petitioner as such moved a representation on 19.9.1998 before the Secretary, Appointments, Lucknow for reshuffling the vacancies and to fill up the two vacant posts of Sub Divisional Magistrate. The petitioner again made a representation on 1.2.1999 after he came to know that Shri Anurag Agrawal had moved an application giving his unwillingness to join the post of Sub Divisional Magistrate. 6. The petitioner later came to know that reshuffling was abandoned by the U.P. Public Service Commission with effect from the examination year 2000. It is submitted that it had no bearing as the selection in the case of petitioner related to the year 1997. A notification was issued on 8.3.1999 approving the name of the petitioner amongst others for the post of Deputy Superintendent of Police. The petitioner joined and was taking training when he filed this writ petition. He also came to know that Shri Surendra Nath Pandey was allotted a post of Sub Divisional Magistrate and that thereafter the reshuffling was stopped. The petitioner has prayed for reshuffling and recommendation of his name for the post of Sub Divisional Magistrate for the selection year 1997 on the grounds that his valuable rights for reshuffling permissible for the selections of 1997 as well as his rights for equal protection of law under Article 14 were violated. 7. The writ petition was dismissed for want of prosecution on 19.11.2007. The order however was recalled on 17.1.2008. It was again dismissed for want of prosecution on 18.3.2008 and was again restored on 11.8.2008. 8. 7. The writ petition was dismissed for want of prosecution on 19.11.2007. The order however was recalled on 17.1.2008. It was again dismissed for want of prosecution on 18.3.2008 and was again restored on 11.8.2008. 8. In the counter affidavit of Shri M.C. Upadhyay, Section Officer, U.P. Public Service Commission, Allahabad, it is stated in paragraph-4 that there was 30 posts of S.D.M. notified in the Combined State/Upper Subordinate Examination, 1997, out of which 15 were reserved for general and 15 were for reserved categories including 08 O.B.C., 06 S.C. and 01 S.T. candidates. The petitioner was selected and recommended for the post of Deputy Superintendent of Police in accordance with his merit and order of preference. In all 15 candidates were recommended for Sub Divisional Magistrate in general category and 15 for reserved categories. Later on two candidates in the general category did not join. The consequent vacancies were sent by the Government to the Commission for reshuffling. The merit list was reshuffled and the candidates were recommended in accordance with their merit and preferential choices. The next candidate recommended was Shri Anand Kumar in O.B.C. category. He was also selected in his category for the post of Sub Divisional Magistrate. He had competed in general merit. He was given the post of Sub Divisional Magistrate in general category. Shri Surendra Narain Pandey, another candidate was a general category candidate and thus this vacancy was created on recommendation of O.B.C. to general merit created a vacancy of S.D.M. in reserved category. It is contended in paras-4 and 7 of the counter affidavit as follows : “4. That on basis of Combined State/Upper Subordinate Examination, 1997, there was 30 posts of S.D.M. (15 for general and 15 for reserved category including 08 O.B.C., 06 S.C. and 01 S.T. candidates of U.P.) to be filled up. The petitioner Shailendra Kumar Singh (Roll No. 083114) a general category candidate was finally selected and recommended for the post of Dy. S.P. in accordance to his merit and order of preferences. 15 candidates were recommended for S.D.M. from general category and 15 were from reserved categories. Later on, two candidates of the general category did not join the said post and the created vacancies were sent by the Government to the Commission for reshuffling. The Commission reshuffled the merit list and recommended the candidates according to their merit and preferential choices. 15 candidates were recommended for S.D.M. from general category and 15 were from reserved categories. Later on, two candidates of the general category did not join the said post and the created vacancies were sent by the Government to the Commission for reshuffling. The Commission reshuffled the merit list and recommended the candidates according to their merit and preferential choices. The next candidate recommended was Anand Kumar (Roll No. 063244) from O.B.C. Category and was already on the post of S.D.M. now but as he competed the general merit he was given the post of S.D.M. in general category. Another candidate was a general category candidate Surendra Narain Pandey (Roll No. 80020). Hence this vacancy which was created by the recommendation of O.B.C. to general merit created a vacancy of S.D.M. of reserved category. The petitioner as general category candidate has filed this writ petition, claiming to be recommended on the post of S.D.M. opposing the recommendation of a new O.B.C. candidate to the post of S.D.M. This writ petition is against the rules of reservation and so devoid of merit hence is liable to be dismissed. 7. That in reply to the contents of paragraphs 7 to 13 of the writ petition, it is stated that there were 30 posts of S.D.M. which were to be filled by the said examination. In 30 posts, 15 posts were to be filled by general category candidates and remaining 15 posts were to be filled by reserved category candidates including 08-O.B.C., 06-S.C. and 01-ST candidates. According to the provisions of the G.O. No. 22/20/82-Ka-2/94 dated 4.7.1994, if the candidates belonging to reserved category (O.B.C., S.C. & S.T.) compete for general merit-list i.e. if they occupy higher position in merit which is equivalent to general category candidates treated as general candidates and occupy the general category seats. The same is adopted in reshuffling process also. That is the reason that the two candidates i.e. Km. Garima Yadav (Roll No. 081822) and Om Prakash Verma (Roll No. 087593) inspite of being a reserved category candidates occupied the general category posts of S.D.M. on the basis of their merit. Now the two posts of S.D.M. got vacant due to non-joining of two general category candidates namely Suresh Kumar Vashishth (Roll No. 044462) in serial No. 1 of the merit list and Anurag Agarwal (Roll No. 003452) serial No. 10 of the merit list. Now the two posts of S.D.M. got vacant due to non-joining of two general category candidates namely Suresh Kumar Vashishth (Roll No. 044462) in serial No. 1 of the merit list and Anurag Agarwal (Roll No. 003452) serial No. 10 of the merit list. To fill these created vacancies, the Government sent proposal to the Commission to send revised recommendation on the basis of reshuffling. In response to that the Commission reshuffled the merit list and the next two candidates at serial No. 16 Anand Kumar (Roll No. 063244) and at serial No. 17 Surendra Narayan Pandey (Roll No. 080020) shifted upwards and occupied serial Nos. 14 and 15 respectively. Now Anand Kumar a reserved category candidate earlier occupied the post of S.D.M. of reserved category has now got a position in general merit and is now occupying a post of S.D.M. of general category vacating a post of S.D.M. (reserved) for which Kapil Dev Singh (Roll No. 045290) (O.B.C.) reserved category candidate is recommended. Another candidate Surendra Narayan Pandey now at serial No. 15 was now allotted the post of S.D.M. on the basis of reshuffling in the merit list. Now one post of S.D.M. from reserved category got vacant due to shifting of Anand Kumar an O.B.C. candidate from reserved category to general category and ultimately this post was meant for reserved category candidate for which Kapil Dev Singh next in the list of reserved category shifted upward and was recommended for the post of S.D.M. to fill the created vacancy. This all was done in accordance with the provisions of reservations laid down in existing Government Order No. 22/20/82-Ka-2/94, dated 4.7.1994 and enclosed herewith as Annexure ‘CA-1’ to this counter affidavit.” 9. Shri Ashok Khare, learned counsel for the petitioner would contend that there are several stages in selections, namely preliminary examination, mains examination and the interview. It was not an open competition in which the candidate selected on merit in reserved category would replace a candidate who had secured higher marks than the general category candidate. The Commission has erred in finding that it was an open competition. The standard of evaluation in respect of open competition is different. He further contends that the vacancy was existing till December 2006 and that the entire process of reshuffling was incorrectly adopted by the Commission. 10. The Commission has erred in finding that it was an open competition. The standard of evaluation in respect of open competition is different. He further contends that the vacancy was existing till December 2006 and that the entire process of reshuffling was incorrectly adopted by the Commission. 10. Shri M.A. Qadeer learned counsel for the Commission submits that two candidates did not opt to join on the post of S.D.M. and thus Shri Anand Kumar-a O.B.C. candidate at serial No. 16 was given the first vacancy and Shri Surendra Narain Pandey at serial No. 17 was given the second vacancy. The merit list was reshuffled according to the then existing Government Order dated 4.7.1997 and that the reshuffling was done strictly in accordance with the merit list. Shri Anand Kumar, the O.B.C. candidate competed in general merit list and has occupied the general category candidate of S.D.M. The recommendation of an OBC candidate, created the vacancy which could only be filled up by reserved category candidate. The final result was prepared keeping in view the reservation policy of the Government and that the reshuffling was done in the same manner. The recommendation of Shri Kapil Dev Singh-a O.B.C. candidate on the post of S.D.M. on the place created by pushing Shri Anand Kumar in general category was correct and legitimate act in accordance with the law. A OBC candidate competing for general merit list and securing more marks than a general category has to be placed in that category and that the place occupied by him has to be occupied by the OBC category candidate. The petitioner was placed at 18th position in the merit list and thus he could not have got the benefit of reshuffling. 11. A supplementary rejoinder affidavit has been filed replying to paragraph-7 of the counter affidavit. It is stated that Shri Kapil Dev Singh referred to in paragraph-7 of the counter affidavit was directed to be released from the post of Assistant Transport Officer where he has joined in June 1999. He filed a Writ Petition No. 46745 of 2000 in which an interim order was passed and that Shri Kapil Dev Singh was allowed to function as Assistant Transport Officer. He did not join on the post of Sub Divisional Magistrate. He filed a Writ Petition No. 46745 of 2000 in which an interim order was passed and that Shri Kapil Dev Singh was allowed to function as Assistant Transport Officer. He did not join on the post of Sub Divisional Magistrate. The writ petition was finally allowed by the Division Bench quashing the order by which Shri Kapil Dev Singh was required to join as Sub Divisional Magistrate. 12. 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. 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 reservation 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 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. 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. 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. 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. Narsimha’s case have not been overruled. 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. Narsimha’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. 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.” 13. 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 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. 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. 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”. 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. 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. 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) 14. 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. 15. 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........ 15. 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. 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 alongwith 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." 16. In Post Graduate Institute of Medical Education & Research, Chandigarh and others, (1997) 6 SCC 283 , the Supreme Court observed : “5. We endorse the view expressed in the aforesaid case." 16. In Post Graduate Institute of Medical Education & Research, Chandigarh and others, (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 speciality; 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) 17. In Indra Sawhney v. Union of India, 1992 (Supp) 3 SCC 217, 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) 18. In M. Nagraj and others v. Union of India, (2006) 8 SCC 212 , 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. 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) 19. There is no foundation of facts on record to show that Shri Anand Kumar did not compete for the posts including the posts in general category. He was placed according to his own merit at serial No. 16 and was rightly pushed up in giving vacancy on which Shri Suresh Kumar Vashishtha, the toper of the list, did not join. All the 15 general category vacancies were thus filled up and that Shri Kapil Dev Singh was pushed up to be included in the merit list of the OBC candidate. The second vacancy created on Shri Anurag Agarwal (serial No. 10) selected in Indian Police Service was filled up by pushing up Shri Surendra Narain Pandey placed in the merit list at serial No. 17. The petitioner has not challenged the placement of Shri Surendra Narain Pandey at serial No. 17 in the merit list and he has not been impleaded as a party to the writ petition. The reshuffling, by which he was placed in the merit list of the general category candidates on the refusal of Shri Anurag Agarwal at serial No. 10 to join, was in accordance with the then prevailing Government Order dated 4.7.1994. 20. The selections were made by open competition in which a common procedure was followed. There is nothing on record to show that separate procedure was followed for reserved category candidates at any stage of selections. Further it is not denied that the process of reshuffling was not followed or that the reshuffling stopped after Shri Surendra Nath Pandey at Sl. No. 17 was allotted a post of Sub Divisional Magistrate. There is nothing on record to show that separate procedure was followed for reserved category candidates at any stage of selections. Further it is not denied that the process of reshuffling was not followed or that the reshuffling stopped after Shri Surendra Nath Pandey at Sl. No. 17 was allotted a post of Sub Divisional Magistrate. The rules of reservation were followed and that Rule 3 (6) of the U.P. Act No. 4 of 1994 was relied upon to offer the vacancy in general category to Shri Anand Kumar, as he had secured more marks than the petitioner. His place could only be offered to a OBC candidate by pushing him up in his own category. The Commission did not commit any error of law in following the rules of reservation and the Government Orders for reshuffling the vacancies. 21. We do not find that the respondents committed any illegality or that the petitioner was discriminated and was not given equal protection of laws. 22. The writ petition is dismissed. ————