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2017 DIGILAW 257 (UTT)

NADEEM ATHAR v. STATE OF UTTARAKHAND

2017-04-24

RAJIV SHARMA

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JUDGMENT Hon’ble Rajiv Sharma , J. Posts of Sub-Inspectors were advertised on 22.12.2001. Petitioner belongs to Other Backward Classes (OBC) category. He gave his first choice to be appointed as Sub Inspector (Civil Police) and his second preference was for Sub Inspector (Intelligence). Result of the examination was declared on 6.10.2002. Petitioner was selected for the post of Sub Inspector (Intelligence). He subsequently came to know that the persons, who have secured less marks than the petitioner in the OBC category, have been offered appointment to the post of Sub Inspector (Civil Police). Petitioner secured 506 marks out of 600. However, other candidates, namely, Rajesh Kumar Yadav and Dharam Veer, who secured 444 and 446 marks respectively, have been offered appointment to the post of Sub Inspector (Civil Police). 2. The stand taken by the respondent-State is that since the petitioner has secured higher marks, he was treated in the general category. Petitioner could not be put to a more disadvantageous position on the basis of his merit by denying him the post of Sub Inspector (Civil Police). He should have been appointed against the post/cadre of his choice/preference earmarked for the reserved category. The persons, who have secured less marks than the petitioner, in the written examination and interview, have been appointed on the post of Sub Inspector (Civil Police). 3. The question raised in this petition is no more res integra in view of the law laid down by their Lordships of Hon. Apex Court in ‘(2012) 13 SCC Page 516’ in the case of ‘Alok Kumar Pandit v. State of Assam & others’ have held that a reserved category candidate, who is adjudged more meritorious than the open category candidates, is entitled to choose the particular service/ cadre/post as per his choice/preference and he cannot be compelled to accept appointment to an inferior post leaving the more important service/cadre/post in the reserved category for less meritorious candidate of that category. Their Lordships have held as under: - “13. Their Lordships have held as under: - “13. If the proposition laid down in Indra Sawhney v. Union of India and R.K. Sabharwal v. State of Punjab5 are considered in abstract, it may be possible to say that once a reserved category candidate secures higher merit than open category candidates, he can be considered for appointment only against open category post and the quota of the particular reserved category cannot be reduced by treating his appointment as one made against the post earmarked for the reserved category to which he belongs. However, literal application of this proposition can lead to serious anomaly and discrimination inasmuch as more meritorious candidate of the particular reserved category could be deprived of the service/cadre/post of his choice/preference and less meritorious candidate of the reserved category could get appointment on the post which would otherwise be available to more meritorious candidate. This can be illustrated by the following example: X and Y are members of reserved category. They compete for selection for recruitment to All-India Services, which includes, IAS, IPS, IRS, etc. In the merit list prepared by the Commission X is placed higher than some of the open category candidates but on the basis of his overall inter se merit with the open category candidates he could get appointment only to IRS. X can get the post of his choice/preference i.e. IAS provided his case is considered for appointment against the posts earmarked for the particular reserved category to which he belongs. If he is not allowed to do so, then why who is less meritorious than X within the reserved category will get appointment to IAS against the reserved post. In this manner X will, despite his better merit within the reserved category, stand discriminated in the matter of appointment against the post for which he had given his preference. 14. The anomaly of the type mentioned above was not countenanced in Indra Sawhney v. Union of India4 and R.K. Sabharwal v. State of Punjab and, therefore, the Court did not have the occasion to deal with the same. However, we are convinced that the appointment of less meritorious candidate of the reserved category against the service/cadre/post of his choice and denial of such appointment to more meritorious candidate of that category would result in blatant violation of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. 17. However, we are convinced that the appointment of less meritorious candidate of the reserved category against the service/cadre/post of his choice and denial of such appointment to more meritorious candidate of that category would result in blatant violation of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution. 17. In Anurag Patel v. U.P. Public Service Commission this Court was called upon to consider whether more meritorious candidates of reserved category who were adjusted against the posts earmarked for general category were not entitled to make a choice of the post earmarked for reserved category. The facts as noticed by this Court were that the third respondent i.e. Rajesh Kumar Chaurasia in CA No. 4794 of 1998, who secured 76th place in the select list, filed Civil Miscellaneous Writ Petition No. 46029 of 1993 before the High Court of Allahabad contending that he was appointed as a Sales Tax Officer, although the appellant in CA No. 4794 of 1998 i.e. Nanku Ram (Anurag Patel) who was also a Backward Class candidate, was appointed as a Deputy Collector, who according to the third respondent, had secured 97th rank in the select list, a rank lower than him. Similarly, 8 persons, all belonging to Backward Classes, who find their names in the select list filed Writ Petition No. 22753 of 1993 alleging that they were entitled to get postings in higher cadre of service as the persons who secured lower rank in the select list were given appointment to higher posts. The first petitioner in the writ petition i.e. Shri Rama Sanker Maurya and the second petitioner i.e. Shri Abdul Samad were at Serial Nos. 13 and 14 in the select list. According to these petitioners, persons lower in rank who got appointment in the reserved category were given postings on the ground that those posts were earmarked for being appointed in Class II services. 18. After noticing the judgments in Ritesh R. Sah v. Y.L. Yamul and State of Bihar v. M. Neethi Chandra the Court observed: (Anurag Patel case, SCC pp. 746-47, para 5) “5. 18. After noticing the judgments in Ritesh R. Sah v. Y.L. Yamul and State of Bihar v. M. Neethi Chandra the Court observed: (Anurag Patel case, SCC pp. 746-47, para 5) “5. … In the instant case, as noticed earlier, out of 8 petitioners in Writ Petition No. 22753 of 1993, two of them who had secured Ranks 13 and 14 in the merit list, were appointed as Sales Tax Officer II, whereas the persons who secured Ranks 38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors and the Division Bench of the High Court held that it is a clear injustice to the persons who are more meritorious and directed that a list of all selected Backward Class candidates shall be prepared separately including those candidates selected in the general category and their appointments to the posts shall be made strictly in accordance with merit as per the select list and preference of a person higher in the select list will be seen first and appointment given accordingly, while preference of a person lower in the list will be seen only later.” 19. A somewhat similar question came up before the three-Judge Bench in Union of India v. Ramesh Ram. Some candidates belonging to OBC had filed an application before the Madras Bench of the Central Administrative Tribunal challenging Rule 16(2) of the Civil Services Examination Rules, 2005. They pleaded that adjustment of more meritorious OBC candidates against the OBC quota was illegal. According to them, such candidate should be adjusted against the unreserved/general category posts and allow more OBC candidates, who were lower in rank, to be recommended for the posts earmarked for that category. The Tribunal held that the OBC candidates who were selected on merit must be adjusted against the general category posts. It further held that in terms of the judgment of this Court in Anurag Patel v. U.P. Public Service Commission, the allocation of service should be in accordance with rank-cum-preference with priority given to meritorious candidates. The three-Judge Bench noticed the judgments in Ritesh R. Sah v. Y.L. Yamul, Anurag Patel v. U.P. Public Service Commission and R.K. Sabharwal v. State of Punjab5 and referred the matter to the Constitution Bench. 23. The three-Judge Bench noticed the judgments in Ritesh R. Sah v. Y.L. Yamul, Anurag Patel v. U.P. Public Service Commission and R.K. Sabharwal v. State of Punjab5 and referred the matter to the Constitution Bench. 23. In view of the above discussion and the law laid down in State of Bihar v. M. Neethi Chandra1, Anurag Patel v. U.P. Public Service Commission, which has been approved by the Constitution Bench in Union of India v. Ramesh Ram, we hold that the official respondents did not commit any illegality by appointing more meritorious candidates of OBC to Assam Civil Service for which they had given preference and the High Court did not commit any error by dismissing the writ petition. 24.1. A reserved category candidate who is adjudged more meritorious than the open category candidates is entitled to choose the particular service/cadre/post as per his choice/preference and he cannot be compelled to accept appointment to an inferior post leaving the more important service/cadre/post in the reserved category for less meritorious candidate of that category. 24.2. On his appointment to the service/cadre/post of his choice/preference, the reserved category candidate cannot be treated as appointed against the open category post.” 4. Accordingly, the writ petition is allowed. Respondent no.3-Dy. Inspector General of Police (Personnel), Police Headquarters, State of Uttarakhand is directed to allocate the post of Sub Inspector (Civil Police) to the petitioner in view of his ranking in the merit list of O.B.C. category candidates within four weeks from today. 5. All pending applications stand disposed of.