Ankit Tada & Ors. vs Union Of India & Ors.

Justice L. Narasimha Reddy:

Since common questions of law and facts, are involved in these OAs, we propose to dispose of them through this common order.

The All India Institute of Medical Sciences (AIIMS) has establishments at various places in the country. With a view to select/appoint 2000 Nursing Officers in the Establishments at Bhopal, Jodhpur, Patna and Raipur, notification No.78/2008 was issued on 27.02.2018, followed by another notification No.07/2020 dated. 23.01.2020. The selection was on the basis of performance in the written examination and subject to reservation in favour of various categories.

The applicants in this batch of OAs belong to one reserved category or the other. The list of selected candidates was published on 20.02.2020. The notification provided for the mechanism of allocation of selected candidates to various places. It was mentioned that the allocation would be based upon choice of the candidates, subject to their merit.

The applicants herein, who belong to the reserved category, were selected in the un-reserved category on account of their merit. All of them have opted for respective places of posting. However, in the order dated 20.02.2020, they were allocated to places, which they did not opt. On account of the implementation of the reservation in the context of posting also, the candidates who were relatively less meritorious, but selected against the reserved vacancies were preferred to the applicants, who incidentally were selected under the unreserved category.

The applicants challenge the impugned order dated 20.02.2020 in so far as it denied to them, the place of their choice, in the context of posting. They contend that, the fact that they did fairly well in the examination and came to be selected against the un-reserved vacancies cannot be treated as a factor against them, compared to a less meritorious candidates in the same category, and were selected against the reserved seats. They placed reliance on the judgment of the Hon’ble Supreme Court in case of Union of India vs. Ramesh Ram and Others (2010) 7 SCC 234 and certain orders issued by the DOP&T.

The OAs are contested by respondents and they filed a common counter affidavit. According to them, the applicants have no right to insist upon being posted at a particular place and that the allocation was made strictly in accordance with the prescribed procedure. It is also stated that the acceptance of the contentions of the applicants would lead to a situation where the applicants would replace the equal number of candidates selected against the reserved vacancies, and the corresponding number of unreserved candidates had to be selected/appointed. The respondents further submit that no hardship has been caused to the applicants, when they are considered under the un-reserved category.

We heard Mr. Gyanant Kumar Singh, Mr. Manoj J George with Ms. Shilpa Liza George, learned counsel for the applicants in respective OAs and Mr. K.P. Gautam, Mr. Satish Kumar, Mr. Hanu Bhaskar, Mr. Amit Anand and Mr. Gyanendra Singh, learned counsel for the respondents in respective OAs.

As in the case of any other service, the reservations are provided for the posts of Nursing Officers in AIIMS also. The selection is on the basis of performance in the written test. It is also fairly well settled that if a candidate belonging to reserved category, secures meritorious marks and finds place in unreserved category, he continues to be treated as unreserved, notwithstanding his social background. It is only when the selection is for more services than one, and the option is to be exercised in this behalf that complications would arise.

If a candidate belonging to a particular reserved category is selected against an unreserved post in category “A” and his choice is for category “C”, where he would not find place except as a reserved candidate, his option or discretion cannot be scuttled. He would be at liberty to switch over to category “C” where he may be selected against a reserved seat. The manner in which the seat he would have otherwise in category “A” must be filled, would depend upon the rules, that have prescribed for this purpose. In the instant case, such a problem does not arise at all. The reason is that the post is only one, namely, Nursing Officer.The places that are mentioned, only indicate the availability of the vacancies. Beyond that, the places do not constitute independent or separate cadres, by themselves.

We cross verified from the learned counsel for the respondents as to whether the post of Nursing Officer is typical to each institution, and it is not transferable. The answer was that the post is very much transferable but the instances are not common. In other words, the candidates allocated to a particular Institute would remain at the same place by and large only in exceptional cases, that the inter Institute transfers are made. The net result is that the post of Nursing Officer is a cadre for the entire establishment of AIIMS and independent cadre do not exist at the centres, established across the Country.

In both the notifications dated 27.09.2018 and 23.01.2020 the respondents incorporated a clause to the effect that the posting of selected candidates shall be on the basis of two factors, namely option and merit. In other words, if more candidates are available at a particular place, the allocation would be on the basis of merit. Hardly any scope exists for reference to the social status, much less the reservation. The clause reads as under:-

 “Those candidates who have complied and filled the order of preference of allocation of institute, hospitals, if eligible based on the CBT, will be allocated their preference based on merit and availability/vacancy or position in the respective institute/hospital.

 Those candidates who have not complied and have either not filled their preference or incompletely filled the preference will be allocated institute/hospital at the discretion of examination section AIIMS in sequence of hospitals as published in advertisement No.78/2008 i.e. (i) AIIMS Bhopal (ii) AIIMS Jodhpur (iii) AIIMS Patna (iv) AIIMS Raipur Any partial preference filled will also be completed by allowing filled preference at higher in order in sequence of preference and remaining out of above in order of sequence as above.”

As observed in the preceding paragraphs, the applicants, hailing from the reserved category, were selected against the unreserved vacancies. They all have opted various places of their choice. However, they were not posted in those places on account of implementation of reservation in that context also. At the threshold of the impugned order itself, the following paragraph is added:-

We make it clear that the allocation of vacancies to different categories in different hospitals were not part of the selection process at all. At the cost of repetition, we mention that reservation was never treated as a factor for posting at different hospitals. The respondents are not entitled to introduce the same at the stage of posting. In the counter affidavit also, extensive exercise is undertaken to justify the postings on the basis of reservation. Once the respondents did not mention in the advertisement that the posting would be on the basis of reservation, they cannot be permitted to introduce the same at a later stage. They fall back upon the general principal of allocation under the policy evolved by the Government.

There would have been occasion for implementation of reservation at the stage of allocation also had it been a case where each hospital constituted a different service and the applicants were required to choose the service. In such an event, the pattern of selection would have been different. In case, their merit and the option did not enable them to get a vacancy in a particular service, in the unreserved category, they would have switched over to reserved category. Fortunately enough, there is no two tier selection process. The social status becomes relevant only in the context of selection to the post and as such. It is not at all in the context of posting at various places.

In view of the discussion undertaken above, we allow the OAs and set aside the impugned order in so far it did not accommodate the applicants at the places of their choice depending upon their overall merit, independent of their social status. The respondents shall complete the exercise and post the selected candidates, in pursuance of the notification dated 23.01.2020 purely on the basis of (a)choice of the candidates and (b) merit obtained by them in the examination, within two months from the date of receipt of a copy of this order.

To be more cautious in this behalf, we direct that social status of a candidate or the factor of reservation shall not be taken into account, in the context of posting. The preference mentioned in the application form shall be treated as final and without any subsequent alteration. We also leave it open to the respondents to confine the exercise, only to the applicants herein, to avoid further complications. The relief is confined to the applicants alone. The entire exercise shall in no way, disturb the selection of any candidate.

Pending MAs shall stand disposed of. There shall be no order as to costs.