HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- WRIT - A No. - 37396 of 2012 Petitioner :- Shahid Anjum Respondent :- State Of U.P. & Others Counsel for Petitioner :- Dr.Rajesh Kumar Srivastav,R.K.Srivastava Counsel for Respondent :- C.S.C.,Raghubir Singh,Rajesh Kumar Hon'ble Surya Prakash Kesarwani,J.
1. Heard Dr. Rajesh Kumar Srivastava, learned counsel for the petitioner, Shri R.K. Pandey, learned Standing Counsel for the respondent nos.1 to 4 and Shri Rajesh Kumar, learned counsel for the respondent no.6.
2. Learned counsel for the petitioner submits that the petitioner had applied for the post of Lecturer in Physics, pursuant to Advertisement No.02 of 2010 in the category of OBC. He was called for interview. He gave preference for appointment in five colleges, in case he is selected. The result was finally declared on 17.2.2012 in which the petitioner was declared successful in the general category and was placed at serial no.8. He was allotted an institution, namely, Sri Chandan Lal Inter College, Kandhla, Muzaffarnagar instead of the institutions for which he gave preference as OBC candidate which is against the provision of Rule 12 of the U.P. Secondary Education Service Selection Board Rules 1988. He submits that the petitioner has not yet joined in the institution allotted to him for the reasons that he is waiting for allotment of the college for which he has given option. He submits that in the case of Anurag Patel vs. U.P. Public Service Commission, 2005 (9) SCC 742 while considering the controversy with regard to the determination of ranks and consequent allotment on the respective posts held that the authorities should have prepared the list of successful candidates who are to be appointed on general merit as also candidates who are to be appointed against the reserved vacancies and while making appointments the inter se merit of the reserved candidates should have been considered and they must have been given the option treating each service separately. He submits that since this procedure was not followed, and therefore, less meritorious candidates got appointment in a college of their choice but the petitioner could not get this opportunity. He also relied upon the judgment of Hon'ble Supreme Court in the case of Samta Aandolan Samiti and another vs. Union of India and others, reported in Laws (SC)-2013-12-21 and the law laid down by the learned Single Judge of this Court in the case of Archana Anand vs. State of Uttar Preadesh and others, reported in Laws (All)-2007-4-95.
3. Shri R.K. Pandey, learned Standing Counsel supports the action of the respondents.
4. Shri Rajesh Kumar, learned counsel for the respondent no.6 submits that the judgment in the case of Samta Aandolan Samiti (supra) was with respect to the cases relating to the admission in M.B.B.S. Course. He submits that the judgment in the case of Anurag Patel (supra) is also of no help to the petitioner inasmuch as the said judgment relates to the cases where less meritorious candidates got appointment on higher posts and more meritorious candidates had to be satisfied with the posts of lower category. He submits that by the allocation of the college in question, the petitioner has not been put to any disadvantageous position. His post, rank, pay-scale and all advantages attached to the service and conditions of service and the nature of work remains the same. There is no difference between the lecturers and teachers appointed in different inter colleges and everyone has to discharge the same duties. He submits that no advantage is added by the allocation of institution to a candidate nor he is put to a disadvantageous position if a particular institution is not allotted to him. He also relies upon the judgment in the case of Anurag Patel (supra) and also the law laid down by the Hon'ble Supreme Court in the case of Samta Aandolan Samiti (supra). He submits that the respondent no.6 is working in the institution allotted to him since August, 2012, and as such, any reallocation at the instance of the petitioner would disturb the smooth functioning various colleges and imparting of education, which shall ultimately cause disadvantage to the students.
5. I have carefully considered the submissions of the learned counsel for the parties.
6. Undisputedly, the petitioner applied as an OBC candidate in the selection for the post of lecturer pursuant to the advertisement No.02 of 2010. He appeared and qualified in the written examination and was called for interview. He gave preference to five colleges, namely, Pali Inter College, Shikohabad, Firozabad, Nagar Palika Inter College, Kosi Kalan, Mathura, D.N. College, Meerut, Sanatan Dharm Inter College, Etawah and Sarva Hitkari Inter College, Kina Nagar, Meerut. Final result was declared in which the petitioner was declared successful. He competed with the general category and was selected accordingly. He was placed at serial no.8 in the general category. He was allocated the institution, namely, Chandan Lal National Inter College, Kandhala, District-Muzzaffer Nagar. He was not allocated the institution for which he gave preference. Aggrieved with the non allocation of the institution of his choice for which he had given preference, the petitioner filed a Writ Petition-A No.16304 of 2012 (Shahid Anjum vs. State of U.P. and others), which was disposed of by this Court vide order dated 03.04.2012 providing that the petitioner may make a representation before the authority concerned, who shall consider and decide his representation, in accordance with law, by a reasoned and speaking order. Pursuant to the order in the aforesaid writ petition, the U.P.Madhyamic Shiksha Sewa Chayan Board, Allahabad decided his representation recording the reasons as under:
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7. Aggrieved with the aforesaid order, the petitioner has filed the present writ petition.
8. Sub-rule 8, 9 and 10 of Rule 12 of U.P. Secondary Education Services Selection Board, Rules, 1998 (hereinafter refereed to as the "Rules") provides as under:
12. Procedure for direct recruitment.-
(1) to (7 ) .................
(8) The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under sub-clause (4) or sub-clause (5) above, as the case may be, with the marks obtained in the interview. The panel for the post of Principal or Headmaster shall be prepared institution-wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for the posts in the Lecturers and trained graduates grade, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of the candidate who is older in age shall be placed higher. In the panel for the post of Principal or Headmaster, the number of names shall be three-times of the number of the vacancy and for the post of teachers in the lecturers and trained graduates grade, it shall be larger (but not larger than twenty-five per cent) than the number of vacancies.
(9) At the time of interview of candidates, for the post of teachers in lecturers and trained graduates grade, the Board shall, after showing the list of the institutions which have notified the vacancy to it, require the candidates to give, if he so desires, the choice of not more than five such institution in order of preference, where, if selected, he may wish to be appointed.
(10) The Board shall after preparing the panel in accordance with sub-rule (8), allocate the institutions to the selected candidates in respect of the posts of teachers in lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub-rule (9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutions and there remains no vacancy in them, the Board may allocate any institution to him as it may deem fit.
9. It appears that in terms of sub-rule 9 of Rule 12, the petitioner had given choice of five institutions as aforenoted, at the time of the interview. Sub-rule 10 provides that the Board shall prepare the panel in accordance with sub-rule (8), and thereafter, allocate the institutions to the selected candidates in respect of the posts of teachers in lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub-rule (9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutions and there remains no vacancy in them, the Board may allocate any institution to him as it may deem fit.
10. Perusal of sub-rule 10 shows that after selection, the Board is required to prepare the panel in accordance with sub-rule 8, which provides that Board shall prepare the panel in each category of posts of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under sub-rule (4) or sub-rule (5) above, as the case may be, with the marks obtained in the interview.
11. A joint reading of sub-rule 4, sub-rule 5 and sub-rule 8 clearly illustrates that after the written examination, the Board is required to prepare the list of each category of posts and to hold an interview. For the posts in the lecturers and trained graduates grade, the Board is required to prepare the list subject-wise and group-wise respectively. After the interview is held, the marks obtained by the candidates as per scheme of the rules are added and the panel in accordance with sub-rule 8 is prepared to allocate the institutions to the selected candidates.
12. Undisputeldy, the petitioner competed with general category, and thus, was placed by the Board in the panel of general category selected candidates. Since the petitioner could not be allocated the institution of his preference being in the general category, and as such, the institution in question was allocated to him in accordance with sub-rule 10 of Rule 12.
13. In the case of Anurag Patel (supra), the facts were that in the year 1990, the Uttar Pradesh Public Service Commission/Upper Public Service Commission (Preliminary) examination was held for selection to various posts such as Deputy Collectors in U.P. Civil (Executive) services, Dy. Superintendent of Police in U.P. Police Services, Treasury Officers/Account Officers in U.P. Finance and Accounts Services, Sales Tax Officers, Asstt. Transport Officers, District Supply Officers and various other posts. List of selected candidates was published in August 1992 to fill-up 358 posts in various categories. The candidates belonging to the backward classes were entitled to get reservation in selection in respect of 57 posts in various categories. The posts in each category of services were filled up by choice of the candidates and the person who secured higher position in the merit list would opt for U.P. Civil (Executive) service and those who cannot get the higher and important category of service have to be satisfied with the posts in services of lesser importance. Some candidates belonging to the Scheduled Caste/Scheduled Tribe and Backward Classes got selected to the seats (posts) earmarked for general candidates as they were treated in general category and were allotted to various services depending upon the rank secured by them in the select list. They got lower rank in the merit list of general candidates, and consequently, they got post in lesser important service. However, the SC/ST and O.B.C. Candidates got selection on the posts of higher importance reserved in each category even though they secured lower rank in the whole select list. On these facts, the Hon'ble Supreme Court considered the controversy and held in paragraph 5 as under:
5. First 10 candidates were appointed on the open merit and thereafter three seats which were reserved for backward classes were filled up by O.B.C. Candidates, who secured rank Nos. 38, 62 and 97. The rank list prepared by the U.P.P.S.C. shows that as many as 9 candidates had secured higher rank than the candidate No. 38, namely, Shri Ashok Chandra who got appointment as Deputy Collector and as against candidate Shri Ramesh Chandra Yadav, who got appointment as Deputy Collector, secured only 62nd place in the select list and there were 15 candidates belonging to backward classes were above him in the rank list. So also the 97th rank holder who was the petitioner in the writ petition before the High Court and the present appellant in C.A. No. 4794 of 1998 also get appointment as Dy. Collector and there were several other backward class candidates in the merit list, who secured higher marks in the selection. This anomaly happened as the candidates above who secured higher marks than the 3rd respondent were adjusted against the vacancies that arose in the general category for various other posts such as Treasury Officers/Account Officers in U.P. Finance and Accounts Services, Sales Tax Officers, Asstt. Transport Officers, District Supply Officers etc. The authorities should have prepared the candidates who are to be appointed on general merit as also candidates who are to be appointed as against the reserved vacancies and while making appointments the inter se merit of the reserved candidates should have been considered and they must have been given the option treating each service separately. As this exercise was not followed, less meritorious candidates got appointment to higher posts whereas more meritorious candidates had to be satisfied with posts of lower category.
14. Thus, the judgment in the case of Anurag Patel (supra) is based on a situation where less meritorious candidates got appointment to higher posts where as more meritorious candidates had to be satisfied with the post of lower category.
15. In the case of Samta Aandolan Samiti vs. Union of India, 2014 (1) AWC 592, the Hon'ble Supreme Court considered the controversy with regard to the admission in MBBS course. The facts of the case were that the writ petition under Article 32 of the Constitution of India was filed with the grievance that while making admission in the MBBS course, the All India Institute of Medical Sciences (AIIMS) has not adhered to the reservation policy and made allotment to the candidates of reserved category in such a manner, which resulted in more than 50% reservations of the seats, and observed in paragraphs 15, 17, 18, 19, 21 and 23 as under):
15. There is no quarrel upto this stage. It is now well entrenched principle of law that those members belonging to reserved category who get selected in the open competition on the basis of their own merit have right to be included in the general list/unreserved category and not to be counted against the quota reserved for Scheduled Caste. This was recognized by the Constitutional Bench judgment of this Court in Indira Sawhney (supra) and has been followed in series of judgments thereafter. Thus, when certain persons belonging to reserved category get selected in open competition on the basis of their merit, they are not to be counted in the reserved category against the reserved category quota. It is open to the authorities to fill the posts meant for reserved category candidates from amongst the persons in such categories after excluding those who have found their place in general merit. As a fortiori, while calculating the limit of 50% reservation, those candidates belonging to reserved category who have found their place on the basis of their merit competing with general candidates are not to be taken into consideration. It is also not in dispute that such O.B.C./S.C. candidates who have been included in general category have come in that category on their own merit with no relaxation of the eligibility level i.e. percentage of marks. However, the objection of Mr. Lahoti, learned Counsel for the Petitioner, was to the method of counseling which was adopted in the present case as that has come, no doubt, above to the persons in reserved categories. He submitted that as per para 4 of the counseling letter choice was given to S.C./S.T./O.B.C. candidates who had taken admission in the open competition, to opt for a better Institution of their choice for which he/she would have been eligible as per the rules of reservation. This, according to him, was impermissible as once a candidate in reserved category had taken admission under the open competition, he could not have been given a choice for better Institution on the premise that he/she will be governed by Rules of reservation. For this reason, he took strong objection to the note appended to para 4 of the counseling letter as well which facilitated this process. He, thus, submitted that the counseling letter/circular was opposed to the provision made in the prospectus and was also contrary to the judgment of this Court in Union of India v. Ramesh Ram and Ors. (2010) 7 SCC 234:2010(6) AWC 6348 (SC).
17. We have considered the submissions of counsel of both the parties. At the outset, we would like to point out that in the present case, we are dealing with the case of admission with medical course, and the position which we are going to explain in the subsequent paragraphs is confined to cases of admissions and not appointment into the service under the Government. Further, this applies only to MBBS Course and not Post Graduate Courses. Further, we are concerned herein admission process in Seven AIIMS only and the position explained does not relate to those cases where their admissions are in different colleges.
18. With this clarification, we proceed to deal with the issue.
19. It is stated at the cost of the repetition that those members who belong to reserved category but get selected in the open competition on the basis of their own merit have a right to be included in the general/unreserved category. Such M.R.C. not to be included in the quota reserved for Scheduled Caste etc. It is an admitted position that if these persons are excluded, the respondents have not exceeded the quota meant for reserved category. The respondents, at the time of counseling, have only accorded a higher/better choice to these meritorious reserved candidates (M.R.C.) who got recommended against general/unreserved seats vis-a-vis those reserved category candidates who are accommodated against their quota. It is, therefore, an inter-se adjustment between the two kinds of persons belonging to reserved category. In their inter-se merit, these persons who have been able to find their place in general list on account of their merit are definitely better placed than those candidates who are selected in the reserved category, though both types of candidates belong to reserved category. Thus, if between these two categories of persons belonging to same class, higher choice is not given to the persons who are better in merit viz. the M.R.Cs., it would clearly be injustice to them. This was precisely the issue which was referred for decision to the Constitution Bench in the case of Ramesh Ram (supra). In paragraph 3 of the judgment, the Constitution Bench stated the question which was referred for its decision and, the same reads as follows:
"Whether candidates belonging to reserved category, who get recommended against general/unreserved vacancies on account of their merit (without the benefit of any relaxation/concession), can opt for a higher choice of service earmarked for reserved category and thereby migrate to reserved category.
21. Dealing with the first question which directly arises in the present case, the Court clarified that a distinction is to be maintained between the cases dealing with the admission to educational institutions and appointment to a service. The Court accepted the general proposition that such a course of action affords a meritorious reserved candidates (M.R.C.), the benefit of reservation in so far as service allocation is concerned, if this is not done, lesser meritorious reserved candidates would be able to secure better discipline. Therefore, this course of action preserves and protects inter-se merit amongst the reserved candidates.
23. The question in that case was whether a reserved category candidate who is entitled to be selected for admission in open competition on the basis of his/her own merit should be counted against the quota meant for the reserved category or should he be treated as a general candidate. The Court reached the conclusion that when a candidate is admitted to an educational institution on his own merit, then such admission is not to be counted against the quota reserved for Schedule Castes or any other reserved category. It was so held in the following words:
"...In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against sets reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.
(Emphasis supplied by me)
16. In the aforesaid decision in the case of Samta Andolan Samiti (supra), the Hon'ble Supreme Court clarified that a distinction is to be maintained between the cases dealing with the admission to the educational institutions and appointment to a service.
17. In the case of Ritesh R. Sah vs. Dr. Y.L.Yamul and others, 1996 (3) SCC 253, in paragraph 17 the Hon'ble Supreme Court held as under:
"17. In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserve category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved category candidates should be considered and they be allotted .seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate." the same question was considered by this Court in State of Bihar and others vs. M. Neethi Chandra and others, 1996 (6 ) SCC 36."
18. In the case of Archana Anand (supra), while considering the claim of admission for Special B.T.C. Course, it has been held by this Court in paragraph 8 as under:
"8. In the circumstances, we do not find any merit in these appeals. The appeals are dismissed accordingly. However, the State is directed to carry out the exercise of re-allocation within a period of three months. The affected officers shall be given reasonable opportunity of being heard and to the extent possible the State shall given accommodation to such officers." Here in the present case factual position which is emerging is to the effect that petitioner had applied for consideration of her candidature from Female/Scheduled Caste/Arts category candidate and she secured 313.91 quality point marks and as her merit position was much higher as such she has been treated as General Category candidate. It has been categorically stated by petitioner, that allotment of home district was automatic in case candidate was having merit for the same, and apart from the same three options had been exercised namely District Kaushambi, Pratapgarh and Fatehpur. The first candidate who was placed at serial no. 1 and had 301.06 quality point marks namely Anita Bharti from Female/Scheduled Caste/Arts category was allocated home district i.e. Allahabad. Last selected candidate from Female/Scheduled Caste/Arts category candidate namely Sushila had secured 293.31 quality point marks and she has been placed at serial no. 26 and home district has been allocated to her with Code No. 31. Once candidates who had applied for consideration of their claim from Female/Scheduled Caste/Arts category have been given placement as per their choice i.e. their respective home district then there is no reason to deny and deprive the petitioner her place of choice merely because on account of higher merit, she was treated as Female/General/Arts category candidate. Ranking has to be given due respect on the basis of her merit and more meritorious amongst them has to be given first choice of posts. In the present case ground on which claim of the petitioner has been non-suited is that present selection is in respect of single cadre. The view taken in unsustainable by all logics as when said principles have been made applicable, when there are different cadres, by giving due weight to merit of reserve category candidate then same principles will apply with full force, even when there is single cadre. Placement of selected candidate has to be done as per the option exercised. Petitioner cannot be put to disadvantageous position, on account of higher merit and petitioner in all eventuality has to be given first choice of post. The claim of the petitioner is clearly covered by the Anurag Patel case (supra)."
19. In the present set of facts, there is neither any pleading in the writ petition nor any material has been placed on record to demonstrate that non allotment of an institution of his preference in O.B.C. category due to selection in general category, the petitioner has been put to any disadvantageous position. The present case is not a case of examination conducted for recruitment of several category of posts of which some are of higher rank or advantage. In the present set of facts, the selection has been done on the posts of lecturer and the petitioner and others were appointed as lecturer irrespective of the allocation of a particular college. There is no disadvantage to the petitioner due to allocation of the institution in question to him.
20. Under the circumstances, I am of the view that unless a candidate of a reserved category, who competed with the general category and consequent allotment of an institution not of his choice, establishes that because of such allocation he has been put to some disadvantage as compared to those of reserved category lower in rank to him; he cannot claim as a matter of right for allocation of the institution for which he gave preference as O.B.C. candidate. To this extent I disagree with the law laid down by a learned Single Judge in the case of Archana Anand (supra) otherwise the entire allocation in order of preference would be disturbed at the instance of the petitioner after three years of appointments which shall ultimately affect the students. Under the circumstances, it would be appropriate to refer the matter to a Division Bench for authoritative pronouncement on this issue.
21. In view of the above discussion, the matter is referred to Division Bench on the following question:-
"whether an O.B.C. Candidate, who is selected as lecturer in the general category, can claim as a matter of right, the allocation of an institution, for which, he gave preference as reserved category candidate, unless it is established that non allocation of the institution of his choice as a reserved category candidate has put him on a disadvantageous position."
22. Let the matter be placed before Hon'ble the Chief Justice for constitution of a Division Bench for authoritative pronouncement on the question as framed above.
Order Date :- 1.12.2015 Ajeet (Surya Prakash Kesarwani, J.)