Madhya Pradesh High Court
Shashank Singh Gurjar vs The State Of Madhya Pradesh on 8 August, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 7095 of 2018
SHASHANK SINGH GURJAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri M P S Raghuwanshi - Senior Advocate with Shri Manish Gurjar -
Advocate for petitioner.
Shri Vijay Sundram - Govt. Advocate for respondent No.1/State.
Shri Shashank Indapurkar - Advocate for respondents No.2 and 3.
Reserved on : 29/07/2025
Pronounced on : 08 /08/2025
ORDER
This petition under Article 226 of the Constitution of India has been
preferred by the petitioner who had participated in the selection process
initated for filling up various posts including the post of Deputy Collector
undertaken by the M.P. Public Service Commission Indore seeking
directions to the respondents to revise the merit list of Deputy Collector
(unreserved and OBC category) and then to allocate the post of Deputy
Collector (unreserved) to Jitendra Kumar Patel and thereafter to allocate the
vacant post of Deputy Collector (OBC category) to him as he stands at
Sr.No.1 in the waiting list of OBC category.
2. Brief facts suffice for disposal of the present petition are that an
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advertisement was issued for various posts including the post of Deputy
Collector by the M.P. Public Service Commission Indore on 17.3.2016.
Since the dispute in the present case is relating to the post of Deputy
Collector, the number of posts notified for Deputy Collector in the said
advertisement are mentioned as follows:-
Open (unreserved
S.C. S.T. O.B.C.
category)
Number of posts of Deputy
14 04 05 04
Collector
3. The petitioner participated in the selection process and ultimately he
cleared all the stages like preliminary examination, main examination and the
interview and ultimately he was placed at S.No.5 of common Waiting list
and at S.No.1 in the Waiting List of OBC. In the list of unreserved
category, one Rahul Gupta (Roll No.107929) was selected as General
Category candidate and was placed at S.No.13 in the main merit list, likewise
Jeetendra Kumar Patel as OBC candidate (Roll No. 256275) was placed at
S.No.14 based upon his merit. Rahul Gupta, who was placed at S.No.13 in
the merit list of M.P.P.S.C. State Service Examination-2016, before
notifying the final selection list dated 11.7.2017 of 2016 Batch, got selected
as Deputy Collector in the earlier Batch of M.P. P.S.C. State Service
Examination 2015. After his selection on the post of Deputy Collector of
M.P. P.S.C. State Service Examination 2015 Batch, he abondoned the post
of 2016 Batch subsequently, which is evident from the posting orders which
were issued by the Govt. of M.P. on 27.11.2017 because when the said
posting orders were issued for 2016 Batch, his name was not mentioned in
that orders as he was already selected in M.P.P.S.C. State Service
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Examination -2015 Batch for the same post of Deputy Collector.
Consequently, the post of Rahul Gupta who was placed at Sr. No.13 in the
merits list of Deputy Collector of M.P.P.S.C. State Service Examination -
2016 got vacant on 27.11.2017 and in his place the appointment was offered
to Shri Ashutosh Goswami who was placed at Sr. No.1 in the waiting list of
General Category Candidates. Aggrieved by the said action of the
respondents, the present petition has been filed.
4. Learned counsel for the petitioner submitted that one Jeetendra
Kumar Patel (Roll No.256275) placed at S.No.14 in the merit list of OBC
was having higher merit than respondent no.4- Ashutosh Goswmai (Roll
no.156962), therefore, Jeetendra Kumar Patel was to be offered appointment
under Unreserved Category on the post of Deputy Collector as Unreserved
category candidate in place of Rahul Gupta who was placed at Sr. No.13 and
in that view of the matter, the post of Deputy Collector would had fell vacant
in OBC category and had to be filled up out of waiting list candidate from
the OBC category and the petitioner who was at Sr. No.1 in the waiting list
would had got chance of appointment but in not doing so, the action
impugned on the part of respondents is contrary to Article 14 of the
Constitution of India.
5. It is further submitted that the respondents have acted in an illegal
manner inasmuch as on the date of issuance of posting order dated
27.11.2017, one post of Deputy Collector which was allocated to Rahul
Gupta, was lying vacant. Thus, the entrie merit list was required to be
prepared in accordance with Section 4(4) of the The M.P. Lok Seva
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(Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke
Liye Arakshan) Adhiniyam, 1994 (for brevity "Adhiniyam, 1994") which
provides that a person belonging to any of the categories mentioned in sub-
section (2) shall be selected on the basis of merit in an open competition
with general candidates and he shall not be adjusted against the vacancies
reserved for such category under sub-section (2) and as the impugned action
on the part of respondents is contrary to the Section 4(4) of the Adhiniyam,
1994, thus, the order dated 22.01.2018 deserves to be set-aside.
6. It is further submitted that due to mis-application of section 4 (4) of
the Adhiniyam of 1994, the respondents have denied a right of appointment
to the petitioner by issuing letter dated 22.1.2018 and they had issued the
order of appointment in favour of respondent no.4-Shri Ashutosh Goswami
who stood at S.No.1 in the waiting list of the open category candidate which
is impermissible in view of the aforesaid preposition of law since the merit
list had not been implemented and for the first time on 27.11.2017 when the
order of posting was issued, the post of Rahul Gupta which stood vacant
between 11.7.2017 and 27.11.2017, had to be adjusted and the merit list of
Deputy Collector had to be reprepared/ revised in view of the fact that the
post of Rahul Gupta i.e. post of Deputy Collector was vacant prior to the date
of order of posting was issued. Thus, the impugned action of the respondents
being illegal and contrary, deserves to be set-aside.
7. It is further submitted that respondents were not justified in giving
appointment against the vacant situation from the waiting list of those
general category candidate who is lower in merit than OBC/reserved
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category candidates. The argument was based on the principle that in open
category, all other category candidates can get entry if they are having higher
merit to a candidate of open category candidate. Learned counsel for the
petitioner in this regard has relied upon the judgments of Hon'ble Apex
Court rendered in the case of Saurav Yadav and others Vs. State of Uttar
Pradesh and others reported in (2021) 4 SCC 542 and in the case of Bharat
Sanchar Nigam Limited & Anr. Vs. Sandeep Chaudhary & Ors. (Civil
Appeal No.8717 of 2015) dated 28.04.2022.
8. On the other hand, learned counsel for the respondents No.2 and 3
has contended that if a person belonging to reserve category has secured
more marks in the list then his name should be adjusted as against the open
category. The petitioner had opted for being appointed in the OBC category
and therefore he cannot claim to be appointed in general category. Therefore
the purport of Section 4 (4) of Adhinyam of 1994 does not justify filling up
the name of the petitioner as he himself opted for the post of OBC and he is
also less meritorious in comparison to Ashutosh Goswami. The marks of
Ashutosh Goswami are 976 whereas the marks of petitioner are 960, thus
merit wise also the petitioner is not entitled to be posted in place of Rahul
Gupta and as Jitendra Kuma Patel has already been appointed as an OBC
candidate, now his category cannot be changed and the post of Rahul Gupta
fell vacant cannot be filled by Jitendra Kumar Patel.
9. It is further contended that Public Service Commission has
proceeded to make recommendations to make appointment from the waiting
list on the basis of category of vacancy that has remained vacant. It was
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argued vehemently that since the vacancy was of open category, the Public
Service Commission in its wisdom rightly recommended the name of only
those candidate who belonged to 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.
10. Heard counsel for the parties and perused the record.
11. The only point that emerges out for consideration of this Court is
as to whether while making adjustment against the available vacancy already
notified from the waiting list, the respondents are justified in making
appointment in favour of respondnet No.4 who belonged to that category of
which the vacancy has been assigned. In other words, whether once the rule
of reservation has been applied then the vacancy would stand assigned and
no further migration from one category to another category will be
permissible.
12. In matters of rule of reservation, the law is very clear. While
preparing a merit list, the selecting body has to see what is the last cut-off
marks of each category in respect of vertical reservation. There is no
migration from general to reserved category but there can be migration from
reserved category to general category so there is only one way traffic and this
is why general category is called 'open category'. In other words, the
principle is that merit is to be reckoned with in public employment and the
candidates having merit have to be given preference despite the categories to
which they belong to. So, in such event when merit of general category is
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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 open category. But in the matter of reserved category if a
candidate has applied as an general category candidate may be he belongs to
reserved category he would be taken to be general category candidate only.
So there is no migration from general to 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.
13. For instance, if a post for reserved category is assigned and post
assigned to reserved category remains vacant for the reserved category
person not turning up, then a candidate of that reserved category will be
taken from that merit list though he may be lower than the candidate of a
general category available in the waiting list. But in the event a post assigned
to general category remain vacant for the reason that a selected candidate had
not turned up to join and the main panel has got exhausted then the candidate
who is higher in merit, may be of reserved category would stand migrated to
open category and would have preference over a candidate of general
candidate having lesser marks. This migration is absolutely permissible and
is in tune with the principles of reservation so discussed from time to time by
this Court and the Supreme Court.
14. The aforesaid view finds support from the judgment of Supreme
Court in the case of Indra Sawhney Etc. Etc v. Union of India; 1992 (3) SCC
(SUPP) 217 wherein while applying test of merit on the touchstone of Article
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14 of the Constitution vis-a-vis the reservation in public employment
under Article 16(4) of the Constitution, the Court justified migration of
reserved category candidates from their reserved category to the open
category upon scoring above or matching the last cut off/merit of the open
category which is otherwise also known as general category. Vide paragraph
811 of the judgment, the Court has observed "it is well to remeber 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. This above principle by the Constitution Bench was further more
elaborated and precisely too in the case of Saurabh Yadav and ors vs. State
of UP & ors; 2021 (4) SCC 542. The Hon'ble Apex Court though in that
case was also dealing with horizontal reservation more especially in the
matter of female reservation, but supplementing the view of majority,
Ravindra Bhatt, J. observed that open category is not a quota but is available
to all men and women alike to vertical and horizontal reservations. The
Bench referring to judgment of another Constitution Bench in case of R.K.
Sabharwal v. State of Punjab; 1995 (2) SCC 745 vide its paragraph 22 held
thus:
15. In R.K. Sabharwal v. State of Punjab (supra) the Constitution
Bench of this Court considered the question of appointment and
promotion and roster points vis-à-vis reservation and held thus:
4. When a percentage of reservation is fixed in respect of a
particular cadre and the roster indicates the reserve points, it has to
be taken that the posts shown at the reserve points are to be filled
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from amongst the members of reserve categories and the
candidates belonging to the general category are not entitled to be
considered for the reserved posts. On the other hand the reserve
category candidates can compete for the non-reserve posts and in
the event of their appointment to the said posts their number
cannot be added and taken into consideration for working out the
percentage of reservation. 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 under the State. It is,
therefore, incumbent on the State Government to reach a
conclusion that the Backward Class/Classes for which the
reservation is made is not adequately represented in the State
Services. While doing so the State Government may take the total
population of a particular Backward Class and its representation in
the State Services. When the State Government after doing the
necessary exercise makes the reservation and provides the extent
of percentage of posts to be reserved for the said Backward Class
then the percentage has to be followed strictly. The prescribed
percentage cannot be varied or changed simply because some of
the members of the Backward Class have already been
appointed/promoted against the general seats. As mentioned above
the roster point which is reserved for a Backward Class has to be
filled by way of appointment/promotion of the member of the said
class. No general category candidate can be appointed against a
slot in the roster which is reserved for the Backward Class. The
fact that considerable number of members of a Backward Class
have been appointed/promoted against general seats in the State
Services may be a relevant factor for the State Government to
review the question of continuing reservation for the said class but
so long as the instructions/rules providing certain percentage of
reservations for the Backward Classes are operative the same have
to be followed. Despite any number of appointees/promotees
belonging to the Backward Classes against the general category
posts the given percentage has to be provided in addition.?
(emphasis added)
16. In the case in hand, it is clear that the merit list was finally
prepared and the cut-off of the open category was much more than the OBC
and SC/ST category and so there was no question of any migration of a
reserved category candidate to open category but once merit panel got
exhausted and there arose question of getting candidates from the waiting list
against unfilled vacancies then in that waiting list, an open category
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candidate whose merit was less than the reserved category candidate could
not have marched ahead of such reserved category candidate to occupy the
post only on the ground that the post had fallen vacant in the open category
which upon the above principles of law discussed was absolutely
impermissible. Concluding on the principles of migration from reserved
category to open category and the concept of reservation, supplementing the
judgment (delivered by Justice U.U. Lalit, J. as His Lordship then was),
Justice Ravindra Bhatt observed that "reservations, both vertical and
horizontal, are method of ensuring representation in public services. These
are not to be seen as rigid slots, where a candidate's merit, which otherwise
entitles her to be shown in the open general category, is foreclosed, as the
consequence would be, if the argument of counsel for MPPSC is accepted.
Doing so, would result in a communal reservation, where each social
category is confined within the extent of their reservation, thus negating
merit. The open category is open to all, and the only condition for a
candidate to be shown in it is merit, regardless of whether reservation benefit
of either type is available to her or him."
17. In such above view of the matter and legal proposition conceived
and applied as law of reservation, since MPPSC has admitted that they have
adjusted a general category candidate who was at Sr. No.1 in the waiting list
against the vacancy that remained vacant on adbondenment of post by Rahul
Gupta, even after the main merit panel got exhausted despite his marks being
lesser to the OBC category candidate Jeetendra Kumar Patel, this Court is of
the considered view that it was a wrong that needed to be rectified by
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offering appointment to OBC category candidate Jeetendra Kumar Patel in
place of Rahul Gupta and since Jeetendra Kumar Patel was selected as OBC
category candidate, therefore, in his place, a higher meritorious candidate of
OBC category in the waiting list i.e. the petitioner whose name finds mention
at Sr. No.5 in the waiting list should be selected.
18. The stand taken by the M.P.P.S.C, thus, cannot be sustained in
law. No one can be appointed against rules in public employment, may be
interpreting it wrongly or mistakenly and if a wrong has been done it must be
undone. Accordingly, M.P.P.S.C. is directed to prepare panel afresh in the
light of law discussed above and the observations are made to make
adjustments of waiting list candidates against available vacancy that got
wrongly selected. The M.P.P.S.C. shall issue notices to the candidates who
have been notified for the purposes of allotment, if already joined inviting
their objections and thereafter prepare a fresh panel.
19. This petition stands disposed of in above terms.
(MILIND RAMESH PHADKE)
JUDGE
ojha
