The Allahabad High Court held that a reserved category candidate scoring higher marks than a general category candidate will be given priority in the open category selection process, however, vice versa is not applicable for selection in reserved category, where only candidates of reserved category shall be selected.
Brief Facts:
The petitioners applied for the post of Assistant Teachers in Trained Graduate Teacher (TGT) for which an advertisement was issued by the UP Secondary Education Service Selection Board. They were placed on the waiting list, having tied with other candidates at the cut-off marks for the OBC category. It was argued that the candidates who had scored lower than the petitioners were being placed higher on the waiting list and were thus given a chance against the vacant seats.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner argued that respondents are not justified in giving appointments against the vacant situations from the waiting list of those general category candidates who are lower in merit than OBC/reserved category candidates and the arguments are based on the principle that in the open category, all other category candidates can get an entry if they are having higher merit to a candidate of open category candidate. Further, it was argued that the 'Samekit' means a consolidated list of selectees and in that case as and when the vacancy occurs on account of non-joining of the selected candidates from the main panel and if there is no other candidate available in the main panel, the waiting list candidate shall be offered appointment in the order of merit. A candidate of an open category having higher marks than the reserved category candidate will of course be given preference if the vacancy is of the open category, but in the event, that reserved category candidates with higher marks are available then they will be taken to be of open category to be adjusted against the vacancy of general category, if it is still vacant.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that the Board has proceeded to make recommendations to make an appointment from the waiting list on the basis of the category of vacancy that has remained vacant. He argued vehemently that since the vacancies were of open category, the respondents in their wisdom rightly recommended the name of only those candidates who belonged to the general category. He accordingly, tried to justify that once the reservation has been applied and vacancy becomes available, then there will be no further migration from one category to another category.
Observations of the court:
The court stated that the question is as to whether while making adjustments against the available vacancies already notified from the waiting list, the respondents are justified in making allotment in favour of those candidates who belong to that category to which the vacancy has been assigned.
Further, it was stated that while preparing a merit list, the selecting body has to see what are the last cut-off marks of each category with respect to the vertical reservation. There is no migration from the general to the reserved category but there is migration from the reserved category to the general category so there is only one-way traffic and this is why the general category is called 'open category'. In other words, on the principle that merit is to be reckoned with in public employment the candidates having merit have to be given preference despite the categories to which they belong. So, in such an event when the merit of the general category is higher and a reserved category candidate is able to score higher than the last cut-off of the general category then such reserved category candidate would be migrated to the open category. But in the matter of reserved category if a candidate has applied as a general category candidate be he belongs to the reserved category he would be taken to be a general category candidate only. So there is no migration from the general to the reserved category. Similarly, once the post has stood assigned to a particular category of reservation then for all purposes that category would continue to belong to that reserved category even while a candidate is taken from the waiting list.
Further, the court relied on the decision in the case of Indra Sawhney vs Union of India, wherein it was held 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.
The Court held that once the merit list was according to the cut-off, the general category was exhausted, and vacancies were to be filed from the waiting list then general category candidate with lesser marks could not have marched ahead of a more meritorious candidate of the reserved category and further no one can be appointed against rules in public employment, maybe interpreting it wrongly or mistakenly and if a wrong has been done it must be undone.
The decision of the Court:
The court directed the respondents to prepare a fresh panel list in accordance with the law,
Case Title: Akhilesh Kumar and Ors. vs State of U.P. and Ors.
Coram: Hon’ble Mr. Justice Ajit Kumar
Case No.: WRIT - A No. - 12559 of 2023
Advocate for the Petitioner: - Atipriya Gautam, Utkarsh Birla
Advocate for the Respondent: C.S.C., A.K.S.Parihar
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