Judgment & Order (Oral) By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of selection of respondent Nos. 5 & 6 to the post of Peon-cum-Chowkidar under the administrative control of Director of Audit (Local Fund), Assam as well as for a direction to the respondents to include him in the select list and thereafter to appoint him to the post of Peon-cum-Chowkidar. 2. Case of the petitioner is that he is a matriculate and belongs to the Scheduled Tribe (Plains) community in the State of Assam. An advertisement dated 02.06.2011 was issued by the Director of Audit (Local Fund), Assam (respondent No. 2), inviting applications from eligible candidates for recruitment to one post of Peon-cum-Chowkidar in each Circle Offices under the administrative control of the Director of Audit (Local Fund), Assam, respondent No. 2. The Circle Offices are Kokrajhar, Nalbari, Barpeta, Goalpara, Dhubri, Tezpur, Sivasagar, Jorhat, Dibrugarh, Nagaon, Diphu, Lakhimpur, Silchar and Karimganj. Pursuant to the said advertisement, petitioner submitted his application and was accordingly called for interview scheduled on 16.02.2012 vide call letter dated 17.01.2012. Accordingly, petitioner appeared in the interview. Chairman of the Selection Committee i.e., respondent No. 2 himself issued office order dated 01.09.2012 stating that on the basis of performance in the interview held from 13th to 18th February, 2012, and on the recommendation of the Selection Committee, 14 candidates, whose roll numbers were mentioned therein, were declared to have qualified for recruitment to the post of Peon-cum-Chowkidar subject to satisfactory police verification report. As petitioner was not selected despite his assessment of having performed well in the interview, he sought for certain information under the Right to Information Act, 2005. According to the petitioner, as per information furnished to the petitioner, respondent Nos. 5 & 6 bearing roll numbers J-22 and J-23, who were amongst the selected candidates, had secured 14 and 13.66 marks in the average respectively, whereas petitioner had secured 17 marks in the average. With the grievance that despite securing higher marks than respondent Nos. 5 & 6, petitioner has not been selected, whereas respondent Nos.5 & 6 have been selected, petitioner has filed the instant writ petition seeking the reliefs as indicated above. 3. With the grievance that despite securing higher marks than respondent Nos. 5 & 6, petitioner has not been selected, whereas respondent Nos.5 & 6 have been selected, petitioner has filed the instant writ petition seeking the reliefs as indicated above. 3. This Court by order dated 17.12.2012 had admitted the writ petition and had passed the following order: - “The contention of the petitioner in the present petition is that though he secured the highest marks in the viva-voce test held for selection of candidates for appointment as Peon-cum-Chowkidar in the office of the Director of Audit (Local Fund), North Lakhimpur Circle Office, he has not been selected and instead the respondent Nos.5 and 6, who secured lesser marks in such selection test, have been selected for recruitment. The petitioner in support of his contention has placed reliance on the information supplied to him under Right to Information Act, namely, the marks secured by different candidates in such selection process. It appears from the marks, which were supplied to the petitioner on 14.11.2012 by SPIO & Joint Director of Audit (Local Fund), Assam, that the petitioner secured 17 marks as against 14 and 13.66 marks awarded to the respondent Nos.5 and 6, respectively, in the said selection test conducted for selection of candidates for appointment as Peon-cum-Chowkidar. In view of the above, I am of the view that an interim order is called for and hence the respondents are directed not to appoint any candidate as Peon-cum-Chowkidar in the office of the Director of Audit (Local Fund), North Lakhimpur Circle Office, until further order.” 4. Respondent No. 2 has filed affidavit. Stand taken in the affidavit is that the Selection Committee verified the roster points and found that there was excess representation of SC, ST(P) and ST(H) categories, whereas there was no representation of OBC and General categories to the extent of 8 & 22 vacancies. In this regard, a statement has been submitted by the respondent No. 2, which reads as under: - Category Post based Strength Man-in-position Vacancy SC 10 13 NIL ST(P) 14 19 NIL ST(H) 07 08 NIL OBC 40 32 08 General 78 53 22 Total 149 128 The Selection Committee found that as there was excess man-in-position in respect of SC, ST(P) and ST(H) categories, the vacancies existed only for OBC and General categories. Therefore, vacancies were filled up from amongst OBC and General category candidates only. Since the petitioner belongs to ST(P) category, he was not included in the select list as no post was available for ST(P) despite him securing the highest mark in the selection. Further stand of respondent No. 2 is that respondent Nos. 5 & 6 belonged to OBC category and since vacancies were available for OBC and General categories, they were selected in the OBC category though they had obtained lesser marks than the petitioner. It is also stated that selection was done by preparation of state wise merit list and not district wise. Subsequently, respondent No. 2 has filed an additional-affidavit to bring on record the roster maintained for the post of Peon-cum-Chowkidar, whose cadre strength is 149. 5. In his reply-affidavit, petitioner while disputing the stand taken by respondent No. 2 has further contended that since he had secured the highest mark, he has to be treated as General category candidate and not as a reserved category candidate. If that be the case, petitioner has to be appointed as a General category candidate in the vacancies earmarked for the General category. 6. Respondent No. 6 has filed an application for vacation of the interim order dated 17.12.2012, which has been registered as MC No.2077/2013. Respondent No. 6 has contended that as per information furnished to him by the office of respondent No. 2 under the Right to Information Act, 2005, out of the 14 posts advertised, 13 were filled up by the Selection Committee and 1 has been kept vacant in view of the interim order of this Court. As per minutes of the Selection Committee meeting held on 29.08.2012 also furnished to the respondent No. 6 under the Right to Information Act, 2005, the Selection Committee checked the roster and found that there were excess man-in-position in respect of SC, ST(P) and ST(H) categories. Therefore, Selection Committee decided that the remaining vacancies should be filled up from amongst OBC and General category candidates. Accordingly, Selection Committee selected the following candidates belonging to the OBC and General category as per merit and recommended to the Appointing Authority to appoint the said candidates after verification of antecedent. The details of the selected candidates, as recommended by the Selection Committee are as under: - Sl. Accordingly, Selection Committee selected the following candidates belonging to the OBC and General category as per merit and recommended to the Appointing Authority to appoint the said candidates after verification of antecedent. The details of the selected candidates, as recommended by the Selection Committee are as under: - Sl. No. Roll No. Name of the Candidate Caste 1 D-18 Rinku Kakati General 2 J-22 Mahan Pathak OBC 3 L-04 Eakrul Islam Choudhury General 4 I-103 Jatin Das General 5 J-23 Ashimjyoti Bora OBC 6 B-32 Khagen Konwar OBC 7 N-23 Swapan Das General 8 N-25 Gunendra Roy General 9 E-16 Jitu Chetia OBC 10 F-44 Jahangir Alam Talukdar General 11 B-38 Khirud Ahon General 12 M-127 Ashok Deb General 13 I-143 Pranjal Das OBC 14 M-152 Manoj Nath OBC In such circumstances, respondent No. 6 has contended that he having been selected as an OBC category as per reservation roster, the interim order passed by this Court on 17.12.2012 should be vacated as because of the said order he could not be appointed though the remaining 13 selected candidates have been appointed. 7. Heard Mr. BB Narzari, learned Senior Counsel assisted by Mr. S Chouhan, learned counsel for the petitioner and Mr. B Gogoi, learned Standing Counsel, Finance Department, Assam. Also heard Mr. N Borah, learned counsel for respondent No. 6. 8. Submissions made by learned counsel for the parties are on pleaded lines and, therefore, it is considered not necessary to refer in detail the submissions so made. However, Mr. Narzari, learned Senior Counsel appearing for the petitioner has pressed into service two decisions of the Apex Court in the case of RITESH R. SAH VS. DR. YL YAMUL & ORS., reported in (1996) 3 SCC 253 and RAJESH KUMAR DARIA VS. RAJASTHAN PUBLIC SERVICE COMMISSION & ORS., reported in (2007) 8 SCC 785 in support of his submission that a reserved category candidate should be treated as a General category candidate, if he can come through the selection on the basis of his own merit. In such a case, learned Senior Counsel would contend that the candidate would not be counted against the reserved quota, but would be treated as an open category candidate. Mr. In such a case, learned Senior Counsel would contend that the candidate would not be counted against the reserved quota, but would be treated as an open category candidate. Mr. Gogoi, learned Standing Counsel, on the other hand submits that it was only because of reserved category candidates being much in excess in position that the authorities had decided to fill up the vacancies from amongst the unrepresented categories i.e., General and OBC categories. Since petitioner is neither a General nor OBC candidate, he could not be selected and consequently appointed despite securing the highest mark. Mr. Borah, learned counsel for respondent No. 6 in his submission contended that even if the petitioner is treated as an open category candidate in view of his higher merit, his claim would be against a General category candidate and not against an OBC category candidate to which category respondent No. 6 belongs. Therefore, selection and appointment of the petitioner as a General category candidate would not come in the way of selection and consequential appointment of respondent No. 6. To that extent, the interim order passed by this Court on 17.12.2012 should be vacated, he submits. 9. Submissions made have been considered. 10. Before proceeding further, it may be pointed out that in the course of hearing of the writ petition, this Court had passed the following order on 08.04.2014: - “Mr. B Gogoi, learned Standing counsel, Finance Department submits from the selection record that in the selection held, petitioner was placed at serial No.1 in order of merit. The authorities in the Directorate of Audit (Local Fund), Assam, however, taking the view that since there are excess appointees belonging to the ST and SC category in Grade-IV, i.e., in excess of the roster points made appointments from amongst candidates belonging to general and OBC categories. Prima-facie, the approach adopted by the Director of Audit (Local Fund), Assam is wrong. Since the petitioner is placed at serial No.1 in the select list in order of merit, in the absence of any quota for ST, he is required to be treated as a general category candidate. Natural corollary to this would be that the petitioner would have to be appointed in terms of his merit position in the select list since candidates below him have been appointed. Mr. Natural corollary to this would be that the petitioner would have to be appointed in terms of his merit position in the select list since candidates below him have been appointed. Mr. B Gogoi, learned Standing counsel, Finance Department seeks time to explore the possibility of appointing the petitioner without disturbing the candidates already appointed. Let the departmental authorities explore the above possibility, failing which the court will have to pass appropriate order(s) in accordance with law on the next date.” 11. Learned Standing Counsel, Finance Department submits that it is not possible for the departmental authorities to appoint the petitioner without disturbing any of the candidates already appointed. 12. In RITESH R. SAH (Supra), the Hon’ble Supreme Court was confronted with the question as to whether a candidate belonging to the reserved category, even if he is entitled to selection for admission in the open competition on the basis of his own merit, can he be counted against the quota meant for the reserved category or will he be treated as an open competition candidate? The above question arose in the context of selection for admission into the MBBS course in the State of Maharashtra. The Hon’ble Supreme Court referring to the earlier decisions in the case of INDRA SAWHNEY VS. UNION OF INDIA, reported in 1992 Supp (3) SCC 217 and RK SABHARWAL VS. STATE OF PUNJAB, reported in (1995) 2 SCC 745 held that if a reserved category candidate gets selected in the open competition field on the basis of his own merit, he will not be counted against the quota earmarked for the reserved category, but will be treated as open competition candidate. The same view is reiterated in RAJESH KUMAR DARIA (Supra). 13. Coming to the facts of the present case, it is not disputed that petitioner had secured the highest mark in the selection, but it is the contention of the respondent No. 2 that since the selection was confined to General and OBC categories and since the petitioner belong to ST(P) category, his name could not be included in the select list. The select list contains 14 candidates belonging to General and OBC categories as per merit. The select list contains 14 candidates belonging to General and OBC categories as per merit. In view of the law laid down by the Apex Court, as noticed above, the petitioner whose securing the highest mark in the selection has been admitted by the respondent No. 2, should be treated as the No. 1 candidate in the General category. Consequently his name is required to be included in the select list as General category candidates securing lesser marks than him have been appointed. As a natural corollary, respondent No. 2 would have to provide appointment to the petitioner as a General category candidate if necessary by removing the last General category candidate, who in this case is the candidate at Sl. No. 12 having roll No. M-127, Ashok Deb. However, before removing the last General category candidate, he would have to be put on notice explaining to him the reasons necessitating his deletion from the select list and consequential removal from service to make way for appointment of the petitioner. This would meet the minimum requirement of the principles of natural justice. Since respondent No. 6 belongs to the OBC category, therefore, petitioner’s claim cannot sustain against the selection made under the OBC category. Therefore, respondent No. 6 is entitled to appointment based on his selection as OBC category candidate. As such, interim order passed by this Court on 17.12.12 would have to be vacated to make way for the appointment of both the petitioner as a General category candidate and the respondent No. 6 as an OBC category candidate. Ordered accordingly. 14. Writ petition is allowed to the extent indicated above and the interim order passed by this Court on 17.12.2012 stands vacated/modified accordingly. No costs.