Naveen Dahiya vs Gnct Of Delhi & Ors.
2015 Latest Caselaw 1238 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                            Judgment delivered on: February 11, 2015.
+      W.P.(C) 2125/2014
       NAVEEN DAHIYA                                     ..... Petitioner
                   Through:           Mr. Sourabh Ahuja, Advocate

                         versus

       GNCT OF DELHI & ORS.                          .... Respondents
                     Through:         Ms. Zubeda Begum, Standing
                                      Counsel for GNCTD with Ms.
                                      Sana Ansari, Advocate for Delhi
                                      Police
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE I.S.MEHTA

                             JUDGMENT

% KAILASH GAMBHIR, J. (ORAL)

1. Challenge in the present petition filed under Article 226 of the

Constitution of India is to the order dated 06.02.2014 whereby the learned

Central Administrative Tribunal, Principal Bench, New Delhi has

dismissed the O.A. No. 1063/2013 preferred by the petitioner.

2. Facts essential to decide the present writ petition are that the

petitioner in pursuance of an advertisement issued by the respondent -

Delhi Police in the year 2010, had applied for the post of Head Constable

(Ministerial) under the OBC category. There were 499 vacancies in total,

out of which 255 vacancies were earmarked for unreserved category; 142

for OBC category; 66 for SC category; and 36 for ST category. As per the

petitioner, he sought no relaxation or concession available to candidates

under the OBC category from the respondent.

3. The mode of recruitment for the appointment of Head Constable

(Ministerial), as notified in the advertisement, was direct recruitment by

holding various examinations and it was to be governed by Standing

Order No.324/2009. As per the extant rules and instructions on the

subject, every candidate had to undergo physical measurement and

endurance test (qualifying test) for being eligible to appear for the written

test. It was also laid down that the candidate securing less than 40% in the

written test, (irrespective of their category) shall not be eligible for

typing and computer formatting test (25 marks). The final merit list was

to be prepared by the respondents by summing up the marks secured by

the candidates in written and typing test.

4. The petitioner after having qualified the physical measurement and

endurance test appeared in the written examination. The result of the

written test was declared in June 2012 but the Roll number of the

petitioner did not figure in the list of selected candidates. The petitioner

was thus not called for typing and computer formatting test and his name

was also not found in the final merit list, which was prepared by the

respondents by summing up the marks obtained by the candidates in the

written as well as typing and computer formatting test. Between the

period of 7-11.3.2013, the respondents published/uploaded three lists

being the list of candidates who appeared in the written test along with

their marks and lowest marks of the last selected candidates category

wise for appearing in typing test; the list of provisionally qualified

candidates, roll number wise and the list of candidates qualified in

computer formatting test alongwith the marks obtained in written test and

typing test. After having perused the result of the written examination, the

petitioner was surprised to find that even after securing 72 marks he was

not called for typing test, as the lowest marks of last selected candidate in

OBC category were 73 marks. So far as the last selected candidate under

unreserved category was concerned, the candidate had secured 71 marks,

thus the petitioner had secured higher marks than the last selected

candidate under the unreserved category. In this background of facts, the

grievance raised by the petitioner in his OA filed before the learned CAT

was that the respondent failed to follow the mandate of the constitution

envisaged under Article 16(4) of the Constitution of India by not

accommodating/adjusting his candidature against the unreserved category

despite the fact that he was more meritorious and secured higher marks

than the last selected candidate in the unreserved category.

5. Mr. Sourabh Ahuja, Advocate representing the petitioner

vehemently contended that it is a settled legal position that all the

candidates irrespective of their categories will first contest for a post

under unreserved category and the candidates (belonging to SC, ST,

OBC) who were selected on their own merit without relaxed standards

will not be adjusted against the reserved share of vacancies. So far as the

reserved vacancies are concerned, the counsel contended that the same

will be filled up separately from amongst the candidates belonging to

reserved categories, who could not compete on their own merit from

general list.

6. Counsel also contended that the policy of reservation has to be

adopted/ followed at every stage of selection process and not merely at

the end of the selection process as has been done by the respondents in

this case. He also contended that the written examination, undertaken by

the petitioner alongwith other candidates, was not of qualifying nature as

the marks secured in the written test were determinative in nature. The

learned counsel for the petitioner also argued that the learned Tribunal

has not appreciated the settled legal position and infact gave precedence

to the Standing Order No.324/09 dated 10.12.2009 over all judicial

precedents. The learned counsel for the petitioner also submitted that the

learned Tribunal has ignored the mandate of the judgment in the case of

M. Sankar v. Bharat Heavy Electricals Limited decided on 27.10.2006

by taking a contrary view that the 'own merit' criteria can be adopted

only once in a process of selection i.e., at the end of the whole process,

which the respondents have rightly adopted in this case and applying

'own merit' criteria on every stage of process of selection would create a

chaos and utter confusion, which would render the next stages of the

process nearly impossible (from CAT order). The learned counsel for the

petitioner further submitted that even after taking this view, the learned

Tribunal had directed the respondents to consider the amendment of the

Standing Order No. 324/09 in the light of the judicial pronouncement in

the case of M. Sankar (Supra).

7. Based on the above arguments, the learned counsel for the

petitioner submitted that the reasoning given by the learned Tribunal is

not only unfounded but fallacious and against the spirit and mandate of

Article 16(4) of the Constitution of India and the various judicial

precedents on the subject. In support of his arguments, the learned

counsel for the petitioner has placed reliance on the judgment of the Apex

Court in the case of Jitender Kumar Singh v. State of U.P. 2010(1)

SCALE 358 and in the case of M. Sankar v. Bharat Heavy Electricals

Limited by Madurai bench.

8. Ms. Zubeda Begum, learned Standing Counsel appearing on behalf

of the respondents supported the reasoning given by the learned Tribunal

and as per the counsel, the same deserves to be upheld by this court. She

argued that the respondents have carried out the selection process strictly

in compliance with the instructions contained in the Standing Order No.

324/09 and as per the process of recruitment duly notified in the public

advertisement. She also argued that the criteria of 'own merit' selection

has been correctly applied by them at the end of the whole selection

process, when out of 230 vacancies for unreserved category, 81 had gone

to OBC candidates and 10 had gone to the SC candidates, who made the

grade on their own merits against the candidates in unreserved category.

She urged that the 'own merit' criteria could not be applied at every stage

separately. The learned counsel for the respondent also argued that as per

the laid down criteria, candidates coming within the range of merit in the

written test equivalent to 5 times of the number of vacancies in any

category, whether unreserved, OBC, SC, ST or Ex. Servicemen, were to

be treated as qualified for appearing in the typing and computer

formatting test. The petitioner who had secured 72 marks in the OBC

category could compete with the last selected candidate in the OBC

category. The last select candidates in OBC category had secured 73

marks and therefore, he was rightly not detailed for typing and computer

formatting test. In support of her arguments, reliance was placed by the

learned counsel for the respondent on the judgment of the Apex Court in

Andhra Pradesh Public Service Commission vs. Baloji Badhavath and

Others reported (2009) 5 SCC 1 and the decision of the Allahabad High

Court in the case of Dhananjay Singh vs. State of U.P. and another in

Civil Miscellaneous Writ Petition No. 21607 of 2009.

9. We have heard the learned counsels for both the parties on

considerable length and given our anxious consideration to the arguments

advanced by them. We have also perused the material placed on record

and the judgment relied upon by the parties.

10. The aim of any civilized society should be to secure dignity to

every individual. There cannot be dignity without equality of status and

opportunity. The absence of equal opportunities in any walk of social life

is a denial of equal status and equal participation in the affairs of the

society and, therefore, of its equal membership. In the landmark case of

Indira Sawhney vs. Union of India reported in 1992 Supp (3) SCC

217,it was held by the Hon'ble Supreme Court that the dignity of the

individual is denied in direct proportion to his deprivation of the equal

access to social means. The democratic foundations are missing when

equal opportunity to grow, govern, and give one's best to the society is

denied to a sizeable section of the society. The deprivation of the

opportunities may be direct or indirect. Nevertheless, the consequences

are as potent. Inequality ill-favours fraternity and unity remains a dream

without fraternity. The goal enumerated in the Preamble of the

Constitution, of fraternity assuring the dignity of the individual and the

unity and integrity of the nation must, therefore, remain unattainable so

long as the equality of opportunity is not ensured to all. The trinity of the

goals of the Constitution, viz., socialism, secularism and democracy

cannot be realized unless all sections of the society participate in the State

power equally, irrespective of their caste, community, race, religion and

sex and all discriminations in the sharing of the State power made on

those grounds are eliminated by positive measures.

11. In the present case, the parties are not at variance with regard to the

basic facts of the case. The diverse stand taken by the counsels

revolves around the legal principle with regard to the stage of application

of "own merit" criteria. According to the counsel representing the

petitioner, the principle of 'own merit' has to be adopted/followed at

every stage of selection process as per the mandate of law whereas

according to the counsel representing the respondent 'own merit' criteria

could not have been applied by them at every stage of selection process

but only at the final stage of selection.

12. The learned Tribunal found merit in the pleas advanced on behalf

of the respondents and held that the 'own merit' can be adopted only once

in a process of selection i.e. at the end of whole process and the

respondent has rightly applied the same. The learned Tribunal also

observed that application of 'own merit' criteria at every stage of

selection process would perhaps create havoc and utter confusion, which

would render the selection nearly impossible. The learned Tribunal also

found that the judgment of the Hon'ble Supreme Court in the matter of

Jitender Kumar Singh (Supra) shall not apply to the facts of the present

case and in so far as the decision in the matter of M. Sankar (Supra) is

concerned, it shall not be binding in present case as standing Order

No.324/09 dated 10.12.2009 was not built on the principles laid down in

the said judgment. The Tribunal also gave direction to the respondents to

consider amendment of the said Standing Order in the light of the judicial

pronouncement in the case of M. Sankar (Supra).

13. We find a basic fallacy in the reasoning given by learned Tribunal

while taking a view that it is only at the final stage of selection process

that the 'own merit' criteria can be adopted. Such an interpretation taken

by the learned Tribunal would defeat the very spirit and objective of the

constitutional mandate envisaged under Article 16(4) of the Constitution

of India.

14. Article 16(4) of the Constitution of India permits the state

government to make any provision for the reservation of appointments or

posts in favour of any backward class of citizens which, in the opinion of

the state is not adequately represented in the services in the state. The

very purpose for granting this reservation is to provide representation to

those who are not adequately represented. By providing these

reservations, the state extends some benefit to the candidates in reserved

categories in so far as that if a candidate from a reserved category is not

able to compete on his own merit from the general category, then in that

event he may be given a chance to compete from the reserved category.

It is thus a well settled law that every candidate will first compete on their

own merit from the candidates of general category, irrespective of their

own categories, however if a candidate in the reserved category is not

able to make his grade in the general category then he may contest with

the reserved category. Thus, the candidates of the reserved category, who

are able to get selected in the general category on their own merit, shall

not be counted against the quota reserved for reserved category

candidates. In this context we may refer with profit to the authoritative

pronouncement of the Apex Court in the land mark judgment of Indra

Sawhney Etc. v. Union of India & Ors. (Supra) wherein it was held as

under:

"In this connection it is well to remember 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."

15. In the matter of Ritesh R. Sah v. Dr. Y.L. Yamul & Ors., (1996) 3

SCC 253, the question that emerged for consideration before the Apex

Court was whether a candidate who belonged to the Scheduled Caste or

any other reserved category could be counted against the quota meant for

the reserved category even if he was entitled for selection for admission

in open competition on the basis of his own merit or would he be treated

as an open competition candidate. The Hon'ble Supreme court in

paragraph 13 of the said decision expressed the view as under:

"13. There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16(4)."

16. In Jitendra Kumar Singh (Supra), where the matter related to the

appointment on the posts of Sub-Inspector in Civil Police and Plantoon

Commandant in PAC through direct recruitment, the chief issue which

came up for consideration before the Apex Court pertained to the extent

of selection of a reserved category candidate against unreserved seat and

in what circumstances a reserved category candidate can be considered

against unreserved vacancies besides reserved seat and also where a

candidate of reserved category has availed relaxation meant for reserved

category candidate namely fee and age, whether he will be deprived and

outsourced from competing against an unreserved seat in open

competition with general candidates. Upholding the view taken by the

Division Bench of the High Court in the said case, the Supreme Court

observed that relaxation in age and concession in fee are provisions

pertaining to the eligibility of a candidate to find out as to whether he can

appear in competitive test or not and the same by itself do not provide any

indicia of open competition. After referring to the legal principles settled

in Indra Sawhney (Supra), the Court held that the reservations are a

mode to achieve equality of opportunity guaranteed under Article 16(1)

of the Constitution of India. Concession and relaxation in fee and age

provided to the reserved category candidates are with a view to enable

them to compete and seek the benefit of reservation and thus the same is

merely an aid to reservation. It was further held that these concession and

relaxations place a candidate at par with the general category candidate

and it is only thereafter that the merit of the candidate is to be determined

without any further concession in favour of the reserved category

candidate. The Court went on to add that such relaxation cannot deprive a

reserved category candidate of his right to be considered as a general

category candidate on the basis of own merit in the competitive

examination.

17. The ratio of the said judgment of the Apex Court in Jitendra

Kumar Singh (supra) fully attracts the facts of the present case, in fact

the case of petitioner in the present case stands on a higher pedestal as he

never availed any kind of relaxation either in age or in the fee. We are at

a total loss to understand how the learned Tribunal took a view that the

said judgment of the Apex Court would not attract to the facts of the

present case.

18. We may also usefully refer to a judgment of the Division Bench of

this Court in the case of Tej Pal Yadav v. Union of India & Ors., LPA

611/2010 decided on 29th November, 2010 concerning All India Pre-

Medical/Pre-Dental Entrance Examination conducted by the Central

Board of Secondary Education (in short 'CBSE'), the grievance raised by

the appellant was that he belongs to the OBC category but since he had

secured 72.3% marks in the final examination, he was entitled to be

considered in the general category and not in the OBC. Placing reliance

on the various judgments of the Apex Court, the Division Bench of this

Court authoritatively held that where a candidate appeared as an OBC

category candidate but performed extremely well, his claim should not be

scuttled or smothered solely on the ground that he had taken the initial

examination as an OBC category candidate because if this is allowed to

be done, a general category candidate who really could not compete with

OBC category candidate in the main examination would steal a march

over a candidate from the OBC category. The Court further observed that

the denial of right to a reserved category candidate would neither be in

the public interest nor in accordance with the law laid down in the cases:

Indra Sawhney Etc. v. Union of India & Ors., 1992 Supp (3) SCC 217,

Ritesh R. Sah v. Dr. Y.L. Yamul & Ors., (1996) 3 SCC 253, R.K.

Sabharwal v. State of Punjab, (1995) 2 SCC 745 and Dr. Preeti

Shrivastava v. State of Madhya Pradesh, AIR 1999 SC 2894. Relevant

para 19 of the said judgment is reproduced as under:

"19. Coming to the case at hand, a student may appear in the preliminary examination declaring that he belongs to OBC category and may qualify or may not qualify. If he does not qualify, that is the end of the road. If he qualifies, he appears in the main examination. If he does not qualify in the said examination, his right to get admission becomes totally extinct. If he qualifies within the OBC category, he may put forth his claim in that category but if he gets more marks than the general candidates, he would be justified to say that he can be

considered in the general category. As has been held in the case of Dr. Preeti Shrivastava (supra), the public interest cannot be undermined and public good cannot be sacrificed. The necessity of maintaining efficiency is also paramount. If the whole concept of reservation is understood in a holistic manner, it becomes amply clear that a candidate's appearing in the OBC category in the preliminary examination is basically at the entry level. We are inclined to think that though both the preliminary and main examinations, at a first glance, may look to be totally interconnected, yet on a deeper scrutiny, one is disposed to think that despite being apparent interconnectivity there is a subtle distinctive separation. This being the position, we are of the considered opinion that if an OBC candidate appears in the preliminary examination as an OBC category candidate and performs extremely well in the main examination, his claims should not be scuttled or smothered solely on the ground that he had taken the initial examination as an OBC category candidate. In case it is allowed to be so done, a general category candidate who really could not compete with the OBC candidate in the main examination would steal a march over him. That would not be in the public interest and also not in accord with the law laid down in the cases of Indra Sawhney (supra), Ritesh R. Sah (supra), R.K. Sabharwal (supra) and Dr. Preeti Shrivastava (supra). Further, if we allow ourselves to say so, the constitutional philosophy as well as the law laid down by the Apex Court from time to time in relation to the conceptual essentiality of reservation in medical admission, a test of trinity, namely, due regard for merit when a reserved category candidate is able to compete with a general category candidate, interest of public efficiency and public good in certain courses, and bestowing of special care to the said category so that they would come up in educational sphere are to be kept in view. Therefore, we conclude and hold that the analysis made by the learned Single Judge in this regard is not defensible."

19. Further, the Division Bench of the Madras High Court (Madurai

Bench) in the case of M. Sankar (Supra) also laid down that the matter

relating to employment would include every stage of the selection process

and it cannot be said that only at the time of final selection such candidate

belonging to reserved category would be considered to be adjusted

against the general category notwithstanding the fact that he is otherwise

eligible and is not required to avail of any of the relaxations contemplated

for a candidate belonging to the reserved category. Relevant paras of the

said judgment are reproduced as under:

"28. ............It is obvious that the matter relating to employment would include every stage of the selection process and it cannot be said that only at the time of final selection such candidate belonging to reserved category would be considered to be adjusted against general category notwithstanding the fact that he is otherwise eligible and he is not required to avail of any of the relaxation contemplated for a candidate belonging to the reserved category.

29. What the BHEL should have done is to first find out whether a candidate belonging to reserved category is eligible by virtue of any relaxation applicable to reserved category. If such candidate is found to be eligible only because he has availed of some relaxation applicable only to reserved category, his application is to be considered against the reserved vacancy within the proportion of 1:18 meant for reserved category. On the other hand, if a candidate belonging to reserved category is otherwise eligible and does not require any relaxation either relating to age or relating to qualification, such a candidate is first required to be considered in the selection process relating to the general vacancy within the proportion prescribed for general category. However, if he fails to make the cut relating to general category, his candidature is still required to be considered as against the proportion of 1:18 meant for particular reserved category."

20. In the light of the aforesaid legal principles, the ratio which we

draw is that in any examination, there may be different stages. One stage

may be of Preliminary examination in the nature of qualifying

examination which may comprise of some preliminary test or physical

test prerequisite to enter the main competitive examination and the other

of Main Competitive Test. The marks obtained in the Preliminary

Examination and the Physical Test are usually not to be included for

determination of Final merit. It is only when a candidate qualifies in the

Preliminary Examination and the Physical Test, he become eligible to

appear in the Main Competitive Test. Thus in the Preliminary

Examination and the Physical Test, all the candidates will be treated with

equality i.e. irrespective of their category, reserved or unreserved, and at

this stage the candidates have to qualify this stage for being eligible to

appear in the Main Competitive Test. After qualifying Preliminary

Examination or any Physical Test, the stage is set for an open competition

between the candidates belonging to all the categories, reserved or

unreserved. To say that after entering the stage of Main Competitive

Examination, the candidates of reserved category will compete only with

the candidates of their own category would be a clear negation of rights

of the reserved category candidates guaranteed under Article 16(4) of the

Constitution of India. It is thus not only at the time of final selection that

the criteria of 'own merit' will be adhered to but it has to be followed at

every stage of which the marks obtained by the candidate will be counted

at the time of final Merit, as non-adherence of the same may result into

elimination of a meritorious candidate of reserved category at the

intermediate stage in comparison to the candidate of unreserved category.

Thus the selection at any qualifying stage may not be category wise but

once the said stage is over then certainly a candidate belonging to the

reserved category cannot be debarred from competing with the candidates

of unreserved category and if found more meritorious than the last

candidate under the unreserved category, he must find his place in the

merit list of unreserved category.

21. Adverting back to the facts of the present case. In the present case

also as per the extant rules and instructions on the subject, every

candidate had to undergo physical measurement and endurance test

(qualifying test) for being eligible to appear for the written test. The

candidate securing less than 40% in the written test, (irrespective of their

category) shall not be eligible for typing and computer formatting test (25

marks). The candidates who qualify the physical measurement and

endurance test shall be eligible to appear for typing and computer

formatting test (25 marks). The final merit list was to be prepared by the

respondents by summing up the marks secured by the candidates in

written and typing test. The petitioner in the present case was an OBC

category candidate. After having qualified the physical measurement and

endurance test, he appeared in the written examination. In the written

examination, he scored 72 marks. The lowest marks of last selected

candidate in general category were 71 marks and that of the candidate in

OBC category were 73 marks. However the petitioner was not called for

the typing and computer formatting test on the ground that the lowest

marks of last selected candidate in OBC category were 73 marks and

since he is an OBC category candidate he can contest only with OBC

category candidates in the intermediary stage and the criteria of 'own

merit' selection will be applied only at the end of the whole selection

process and not before.

22. As has been discussed above, once the qualifying stage is over, the

criteria of own merit has to be followed at every stage and not just at the

final stage. In the light of the law discussed above, the order passed by

the Ld. CAT dated 06.02.2014 is set aside. The Respondents are directed

to let the petitioner appear for the typing and computer formatting test

and in case he is selected and has to be appointed, consequent directions

are issued to the respondent to accommodate him against the next

available vacancy. We also direct that the petitioner shall be given

notional seniority alongwith his batchmates and his pay shall also be

fixed notionally. However, the petitioner shall be entitled to pay and

allowance only from the date he actually joins as a Head Constable

(Ministerial) in Delhi Police.

In view of the aforesaid discussion the present writ petition and all

the pending applications are disposed off.

(KAILASH GAMBHIR) JUDGE

(I.S.MEHTA) JUDGE FEBRUARY 11, 2015 Pkb/v