Shahid Anjum vs State Of U.P. & Others
2016 Latest Caselaw 5760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 21
 
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 V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

Under the administrative orders of Hon'ble the Chief Justice dated 10.5.2016 following reference has come up before us to be answered;

"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."

The brief background of the reference in question is that Shahid Anjum has applied for the post of Lecturer in Physics pursuant to the advertisement No. 2 of 2010 as OBC category candidate. Petitioner was called for interview and at the point of time when interview took place he indicated preference for appointment in five colleges in case he is finally selected. Thereafter, the result in question was declared on 17.2.2012 wherein petitioner was declared successful in the open category and was placed at serial no. 8 and his name was impanelled for the institution namely Sri Chandan Lal Inter College, Kandhla, Muzaffarnagar instead of institution for which he has given preference as OBC candidate. Petitioner, in this background, has been agitating that he ought to have been given institution of his choice and as nothing was being done he preferred writ petition before this Court and this Court asked the U.P. Secondary Education Service Selection Board to look into the grievance of petitioner. Pursuant to the order dated 3.4.2012 passed by this Court the claim of petitioner has been considered/examined and communication has been sent by informing that petitioner is from OBC category and as he has been selected in open category, the institution meant for open category has been allocated to him and post meant for OBC category cannot be allocated. Thereafter, petitioner in the second round of litigation is once again before this Court by preferring present writ petition and complaining therein that arbitrary treatment has been meted to his candidature and, as such, this Court should intervene in the matter and institution as preferred by him ought to have been allocated to him.

On the presentation of the writ petition in question learned Single Judge on 1.12.2015 has proceeded to make a mention that unless and until a candidate of 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 and to that extent disagreement in question has been made qua the judgment in the case of Archana Anand Vs. State of Uttar Pradesh and others, reported in Laws (All)-2007-4-95, and, thereafter, reference has been made.

Dr. Rajesh Kumar Srivastava, learned counsel for the petitioner, has submitted before us that the reference in question be answered in negative, inasmuch as, once choice has been asked for in the matter of allocation of institution for which an incumbent has given preference as reserved category candidate, then merit has to be respected while making allocation and the candidate should not be forced to substantiate that he would be on disadvantageous position on account of ignorance of his preference.

Sri A.K. Yadav, representing the U.P. Secondary Education Service Selection Board, on the other hand contended that recommendation in question has been made strictly in accordance with the provisions as contained under U.P. Secondary Education Service Selection Rules and, as such, no interference be made by this Court.

Arguments to the similar effect has been advanced by Sri Raghuveer Singh, Advocate and learned Standing Counsel has also toed the same lines.

In order to answer the issue, that has been so raised before us, the relevant portion of statutory provisions, that hold the field i.e. Sub-rule 4, 5, 8, 9 and 10 of Rule 12 of U.P. Secondary Education Services Selection Board, Rules, 1998 (hereinafter refereed to as the "Rules") are being looked into and same provides for as follows:

12. Procedure for direct recruitment.-

"(1) to (3) .................

4. The Board shall prepare list for each category of posts on the basis of marks obtained in the written examination and marks for special merits as follows:-

(a) 85 per cent marks on the basis of written examination;

(b) 10 per cent marks on the basis of interview which shall be divided in the following manner namely:-

(I) 4% marks on the basis of general knowledge;

(ii) 3% marks on the basis of personality test;

(iii) 3% marks on the basis of ability of expression.

(c) 5 per cent marks on the basis of following special merits namely:-

(i) 2% marks for having Doctorate Degree;

(ii) 2% marks for having Master of Education (M.Ed.) degree;

(iii) 1% marks for bachelor of Education (B.Ed.) degree:

Provided that no marks under this clause shall be awarded to a candidate who has obtained marks under sub-clause (ii),

(iv) 1% marks for the participation in any national level sports competition through state team.

5. The Board shall in respect to the selection for the post of Head Master and Principals, allot the marks in the following manner:-

(i) 60% marks on the basis of quality points specified in Appendix 'D'.

(ii) 16% marks for having experience more than the required experience in the manner that 1% marks shall be awarded for each year of such experience, subject to a maximum of 16% marks.

(iii) 2% marks for research paper published in reputed journals in the manner that 1/2% marks shall be allotted for each research paper subject to maximum 2% marks.

(iv) 7% marks for having Doctorate degree or 3% for Master of Education (M.Ed.) provided that only one degree shall be considered under this clause.

Note.- For the purpose of calculating experience the service rendered as Head Master of Junior High Schools or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Head Master and for selection of Principal, the service rendered as Head Master of a High School or as a lecturer shall only be counted.

(v) The Board shall hold interview of the candidates and 15% marks shall be allotted for interview. Marks in the interview shall be divided in the following manner:-

(a) 6% marks on the basis of subject/general knowledge;

(b) 4% marks on the basis of personality test;

(c) 5% marks on the basis of ability of expression."

(6) & (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.

A bare 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. Said panel is purely merit based panel. In terms of sub-rule 9 of Rule 12, an incumbent has to give choice of five institutions 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.

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.

At this juncture we also proceed to examine the judgment in the case of Anurag Patel Vs. U.P. Public Service Commission, 2005 (9) SCC 742, wherein 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 Apex 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."

In the case of Samta Aandolan Samiti vs. Union of India, 2014 (1) AWC 592, Apex 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."

In the case of Ritesh R. Sah vs. Dr. Y.L.Yamul and others, 1996 (3) SCC 253, in paragraph 17 the Apex Court has 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."

This Court in the case of Archana Anand Vs. State of Uttar Pradesh and others, Laws (All)-2007-4-95, while considering the claim of admission for Special B.T.C. Course, has held in paragraph 8 as under:

"8. 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)."

On the parameters of the aforementioned provisions, that have been quoted above, and the judicial pronouncement, that has been taken note of, the consistent view has been that a candidate who has proceeded to apply as a reserve category candidate and in case he/she proceeds to find place on the basis of merit competing with open category candidate, then his/her rights cannot be defeated and the candidate with less merit in the reserved category could not be put to a much advantageous position. A reserved category candidate who has got place for himself/herself on the basis of merit though belonging to reserved category cannot be considered to be recommended/empanelled against the post reserved for reserve category candidate but as provision has been made for providing preference in the matter of selection of institution, then as at the point of time when interview has taken place his/her candidature has been considered as a reserved category candidate and option has been given, accordingly, then his/her candidature in question will have to be considered on the same parameters at the time of preparation of panel based on merit and choice of institution and if such a view is not taken then it would be writ apparent that an incumbent, even though he/she belongs to the same category, if between these two category of person belonging to same class, choice is not given to person who are better in merit, same would certainly be injustice to the said class, however, while computing percentage of reservation, he/she will be treated as an open category candidate with an additional option to move to reserved category for getting preferred placement. Apex Court in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht, 2011 (1) SCC (L&S) 208, has clarified the legal position by mentioning that in case of vertical reservation, reserve category candidates may compete for non-reserved post and if they are appointed to non-reserved posts on their own merit, their number will not be counted against reserved quota. Once the said candidate is to be adjusted as per his/her preference against the reserve category post ignoring his/her candidature against non-reserve posts, then same would create corresponding vacancy in non-reserve posts resulting in offering post to general category post.

Apex Court in the case of Union of India Vs. Ramesh Ram, 2010 (7) SCC 234, has clarified the legal position that when MRC candidates get adjusted against reserve post, the same creates corresponding vacancies in the general merit. MRC candidate having indicated their status as SC/ST/OBC at the time of application, begin their participation in the examination process as reserve candidate. Having qualified as per the general qualifying standard, they have the additional option for opting out of the reserved category and occupying a general post. Where, however, they are able to secure a better post in the reserved list their placement in the general list should not deprive of the same. The reserved status is protected so that his/her better performance does not deny him/her of the chance to be allotted to a more preferred service.

Reference, that has been made, is that the said incumbent is bound to prove that he/she would be at a disadvantageous situation cannot be accepted by us, inasmuch as, once merit has live link with the preference in question i.e. for providing institution of his/her choice, then what is not provided for in the rule cannot be provided for by the judicial dicta and candidate's preference cannot be ignored merely because he/she was higher in merit. In the present reference, what we find that general category is being treated as if it is not at all meant for reserved category candidate whereas general category is open category and indicative of the fact that the list has been prepared based on merit. Words shall be allotted institution of his preference has to be construed accordingly, failing which such provision would stand diluted. Once incumbent of reserved category has proceeded to make place for himself/herself on merit, then the choice that has been given by that candidate has to be accepted as his/her better performance does not deny him/her of being allotted preferred institution. The expression "preference" amongst others means prior right, advantage, precedence etc. Preference is always subjective, if you chose one institution in preference to another institution, you chose it because you have a feeling that your interest would be much more subserved by getting placement in the said institution. Once right to exercise choice of institution has been conferred by statutory rules, the same cannot be permitted to be taken up lightly unless and until there is a situation when it is impossible to act upon to the said choice, in view of this, the reference is answered in following terms;

"The OBC candidate, who is selected as Lecturer in general/open category, can claim as a matter of right, the allocation of an institution, for which, he/she gave preference as a reserved category candidate and he/she is not required to prove that non-allocation of the institution of his/her choice as a reserved category candidate, has put him/her on a disadvantageous position."

The reference is answered, accordingly. The matter be placed before appropriate Bench for hearing and deciding the writ petition in question on merits.

(Mahesh Chandra Tripathi, J.)       (V.K. Shukla,J.)
 

 
Order Date :- 9.9.2016
 
Shekhar