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Judgment
Hon’ble Mr. Manish Garg, Member (J) :
In the present Original Application, the applicant has prayed for the following reliefs:
“(i)That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 4.6.2018 (Annex.A/1) only in respect of private respondents and not shortlisting of the applicant and consequently pass an order directing the respondents to adjust Sh. Mohammed Kamil (serial No.3 in merit list) OBC candidate against the unreserved post and consequently, pass an order directing the respondents to consider and to include the name of applicant in shortlisted candidate against the OBC category with all consequential benefits including appointment and fixation of seniority, pay etc., from the date of appointment of similarly situated persons.
(ii)Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.”
Highlighting the facts of the case, learned Counsel for the applicant, submitted that pursuant to the advertisement issued by the Navodaya Vidyalaya Samiti in 2016 for 27 posts of TGT (Urdu), the applicant, being an eligible OBC candidate, appeared in the written examination held on 11.12.2016 and secured 130 marks, being placed at Serial No.9 in the combined final merit list.
It was further submitted that candidates at Serial Nos.1, 2, 4, 5 and 6 were empanelled against the five UR vacancies, whereas candidates at Serial Nos.2, 7 and 8 were considered against OBC vacancies, and that candidates at Serial Nos.1, 2 and 5 did not join, with candidates at Serial Nos.1 and 2 not even appearing for document verification.
Learned Counsel contended that since the OBC candidates at Serial Nos.7 and 8 had secured 132 marks each and had not availed any relaxation of the reserved category, they were eligible to be adjusted against the resultant UR vacancies, and consequently the applicant, being next in the OBC merit, ought to have been accommodated against the OBC vacancy; however, instead, candidates at Serial Nos.10 and 11, securing only 129 marks, were appointed.
Reliance was placed upon the decision rendered by the Hon’ble Supreme Court in BSNL & Anr. v. Sandeep Choudhary & Ors., (2022) 11 SCC 779, Tej Pal Yadav v. Union of India & Ors., 174 (2010) DLT 510 (DB) and the judgment of this Tribunal in OA No.1719/2016, decided on 29.06.2026, to contend that reserved-category candidates securing higher merit without availing reservation benefits are liable to be considered against UR vacancies.
Learned counsel for the applicant further submitted that, vide interim order dated 04.07.2018, the respondents were directed to keep one post vacant, which order continues to operate, and therefore no third-party rights would be affected if the present OA is allowed.
Learned counsel thereafter drew our attention to the relevant paragraphs of the aforesaid judgments relied upon by him. The relevant extracts from the said judgments are reproduced hereinbelow:
“(a) BSNL & Anr. v. Sandeep Choudhary & Ors. (supra)
17.The short question which is posed for the consideration of this Court is:-
“Whether in a case where the reserved category candidates secured more marks than the general category candidates, such reserved category candidates will have to be first adjusted in the general category pool and they shall be considered for appointment in the general category pool or against the vacancies meant for reserved category candidates? ….
24.Similar view has been expressed by this Court in another recent decision of this Court in the case of Sadhana Singh Dangi Vs. Pinki Asati, (2022) 1 SCALE 534. By the said decision, it is reiterated that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. It is further observed and held that even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It is further observed that the candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so.
25.Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is noted that the aforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar, belonging to OBC category, were required to be adjusted against the general category as admittedly they were more meritorious than the last of the general category candidates appointed and that their appointments could not have been considered against the seats meant for reserved category. Consequently, after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as respondent No.1 herein. If such a procedure would have been followed, the original applicant – respondent No.1 would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure. Therefore, as such the High Court has not committed any error in observing and holding that the aforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar, will have to be adjusted against the general category candidates and accordingly respondent No.1 being a reserved category candidate and being at Sr. No.1 in the waiting list of reserved category was to be appointed.
(b) Tej Pal Yadav v. Union of India & Ors
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.
(c) OA No.1719/2016, decided on 29.06.2026
53.We find that the controversy involved in the present Original Application lies within a narrow compass, namely, whether the OBC candidates who secured marks placing them within the zone of unreserved vacancies were liable to be adjusted against unreserved vacancies on merit or could validly be adjusted against reserved OBC vacancies on the ground that they were called for interview under relaxed standards applicable to OBC candidates. 54. The undisputed facts emerging from the record are that the Kendriya Vidyalaya Sangathan issued Advertisement No.9 of 2015 inviting applications for 90 posts of Principal, out of which 49 posts were earmarked for the unreserved category and 23 posts for the OBC category. The applicants participated in the selection process under the OBC category. A written examination was conducted followed by interviews and thereafter a final merit list was prepared.
55.It is also not disputed that the candidates namely Sh. Rajesh Kumar, Sh. Roopinder Singh and Sh. Anil Yadav belonged to the OBC category and were placed at Serial Nos.40, 45 and 46 respectively in the final merit list. The grievance of the applicants is that since these candidates found place within the first 49 candidates in the overall merit list, they ought to have been adjusted against unreserved vacancies on their own merit and not against reserved OBC vacancies. According to the applicants, had these candidates been adjusted against unreserved vacancies, corresponding OBC vacancies would have become available to the applicants.
56.The principal defence raised by the respondents is founded upon the DoP&T Office Memorandum dated 01.07.1998. It has been contended that the aforesaid three OBC candidates secured marks below the cut-off prescribed for unreserved candidates at the stage of shortlisting for interview and therefore they were called for interview only by virtue of the relaxed standards applicable to OBC candidates. Consequently, according to the respondents, they could not be adjusted against unreserved vacancies.
57.We are unable to accept the aforesaid contention of the respondents for more than one reason.
58.Firstly, the respondents themselves have admitted in the additional affidavits that no cut-off marks were prescribed in the advertisement. The so-called cut-off marks were only evolved during the process of shortlisting candidates for interview. The material on record further reveals that candidates were called for interview category-wise and separate interview schedules were prepared for UR and OBC candidates. Thus, the so-called “cut-off” of 99 marks for UR candidates was merely a consequence of the number of candidates called for interview and not a statutory or pre-declared benchmark forming part of the recruitment rules or advertisement conditions.
59.Secondly, the law relating to migration of reserved category candidates to unreserved vacancies is no longer res integra. The Hon’ble Supreme Court in Jitender Kumar Singh Vs. State of U.P. & Ors. clearly held that concessions relating to age relaxation, fee concession or eligibility for participation in the selection process do not deprive a reserved category candidate from being considered against unreserved vacancies if such candidate ultimately secures selection on merit. Similarly, the Hon’ble Delhi High Court in Jitender Yadav Vs. Union of India & Ors. held that a reserved category candidate who secures merit position within the unreserved vacancies is liable to be adjusted against the unreserved category and the corresponding reserved vacancy must go to the next eligible reserved category candidate.
60.In the present case, the final merit position of the three OBC candidates in question placed them well within the first 49 candidates corresponding to the number of unreserved vacancies. Merely because they were called for interview under a separate category schedule or because the respondents subsequently evolved a category-wise cut-off for interview purposes cannot defeat their right to be treated as meritorious candidates against unreserved vacancies once they had secured higher aggregate marks in the final selection process.
61.Thirdly, the reliance placed by the respondents upon the DoP&T Office Memorandum dated 01.07.1998 is misconceived in the facts of the present case. The respondents have not demonstrated that any relaxation in age, qualification, experience or number of attempts was actually availed by the aforesaid candidates. In fact, the specific plea regarding age relaxation taken by the applicants was denied by the respondents themselves on the ground that the candidates were well within the prescribed age limit. Therefore, the only alleged “relaxed standard” relied upon by the respondents is the category-wise shortlisting for interview. Such shortlisting procedure cannot override the settled constitutional principle that meritorious reserved category candidates are entitled to be adjusted against unreserved vacancies.
62.The additional affidavit filed by respondent no.1 further strengthens the case of the applicants. The respondents have categorically admitted therein that interviews were conducted separately category-wise and that no OBC/SC/ST candidate was interviewed on the dates earmarked for UR candidates. This itself demonstrates that the respondents treated the interview process as compartmentalized category-wise instead of preparing a common merit-based zone of consideration. Such a procedure defeats the principle of merit migration consistently recognized by constitutional courts.
63.We also do not find merit in the preliminary objections raised regarding maintainability, locus standi or non-joinder of parties. The applicants are directly affected candidates claiming appointment against resultant OBC vacancies and therefore possess sufficient locus to maintain the present proceedings. Further, since the issue primarily concerns preparation of the select list and implementation of reservation policy, effective adjudication is possible even in the absence of the selected candidates, particularly when no adverse order of termination is being passed against them at this stage.
64.In view of the aforesaid discussion, we are of the considered opinion that the action of the respondents in adjusting Sh. Rajesh Kumar, Sh. Roopinder Singh and Sh. Anil Yadav against OBC reserved vacancies despite their placement within the range of unreserved vacancies in the final merit list is arbitrary, discriminatory and contrary to the settled principles governing reservation and merit migration.
65.Accordingly, both the Original Applications deserve to be allowed and are hereby allowed. The respondents are directed to recast the select list for the post of Principal pursuant to Advertisement No.9 of 2015 by treating the aforesaid OBC candidates who secured merit positions within the unreserved vacancies as unreserved candidates and thereafter fill the resultant OBC vacancies from amongst eligible OBC candidates in accordance with merit. The candidature of the present applicants shall accordingly be considered against the resultant OBC vacancies, if they fall within the zone of selection upon such recasting of the merit list.
66.The aforesaid exercise shall be completed by the respondents within a period of three months from the date of receipt of a certified copy of this order. Consequential benefits, if any, shall also follow in accordance with law. Pending MA(s), if any, shall also stand disposed of. No order as to costs.”
Opposing the grant of relief, learned Counsel for the respondents submitted that the applicant has no enforceable claim against the OBC vacancies, as all four vacancies earmarked for the OBC category had been duly filled and the candidates shortlisted thereagainst had joined.
It was further submitted that the applicant secured 130 marks, whereas three OBC candidates, namely Mohammad Kamil, Manzar Kamal and Md. Asim, secured 137, 132 and 132 marks respectively, while the fourth candidate, Mohammad Shaukat Ali, an OBC-PH candidate, was selected against the vacancy reserved for Persons with Disabilities under horizontal reservation, in terms of the applicable reservation policy and DoPT OM No. 36035/3/2004-Estt dated 29.12.2005.
Learned Counsel further submitted that the candidates at Serial Nos.7 and 8 could not subsequently be shifted from the OBC category to the UR category after their selection and joining, there being no provision permitting such change of category.
Reliance was placed upon Union of India v. Ramesh Ram & Ors., (2010) 7 SCC 234, to contend that a reserved-category candidate who opts for a reserved vacancy continues to be counted against the reserved category. Relevant para of the said judgment, reads as under:
“32.Therefore, we are of the firm opinion that MRC candidates who avail the benefit of Rule 16(2) and are eventually adjusted in the Reserved Category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will therefore be offered to General Category candidates. This is the only viable solution since allotting these General Category seats (vacated by MRC candidates) to relatively lower ranked Reserved Category candidates would result in aggregate reservations exceeding 50% of the total number of available seats. Hence, we see no hurdle to the migration of MRC candidates to the Reserved Category.”
It was further submitted that candidates Shri Mohd. Akhtar and Shri Mohd. Anwarul Haque, though belonging to OBC category, were rightly considered against UR vacancies as they had not availed any age relaxation and satisfied the prescribed UR age limit, whereas the applicant, whose date of birth was 12.06.1979, was beyond the UR cut-off date of 31.07.1981 and had availed OBC age relaxation; hence, he could only be considered against the OBC vacancies, all of which stood filled.
Learned Counsel also submitted that the Recruitment Drive 2022-23 subsequently filled the available vacancies, including those relating to TGT (Urdu), and the selected candidates had already joined. It was, therefore, contended that the applicant has no vested right to claim appointment and the OA, being devoid of merit, deserves to be dismissed.
Heard learned counsel for the respective parties and perused the pleadings available on record.
5. ANALYSIS :
The short controversy which arises for consideration is whether the OBC candidates placed at higher positions in the final merit list, having secured marks within the range of the unreserved vacancies and having not availed any relaxation for the purpose of their selection, were liable to be adjusted against the unreserved vacancies, thereby leaving the corresponding OBC vacancies available for consideration of the next candidates in the OBC merit.
In the present case, the applicant secured 130 marks and was placed at Serial No.9 in the combined merit list. The OBC candidates at Serial Nos.7 and 8 secured 132 marks each. The applicant's specific case is that the said candidates had not availed any relaxation of the reserved category and, being higher in merit, ought to have been adjusted against the unreserved vacancies. Consequently, the resultant OBC vacancies ought to have been filled from amongst the next candidates in the OBC merit, in which event the applicant would have fallen within the zone of consideration.
The principle governing such a situation has been considered by the Hon'ble Supreme Court in BSNL & Anr. v. Sandeep Choudhary & Ors., (supra). In the said case, the Hon'ble Supreme Court held that reserved-category candidates who secure higher marks than the candidates appointed against unreserved vacancies are liable to be adjusted against the unreserved vacancies and that the resultant vacancies in the reserved category are required to be filled from amongst the remaining eligible reserved-category candidates on merit. Applying the said principle, the Hon’ble Court held that the reserved-category candidates could not be counted against the reserved vacancies where they had secured selection on the basis of their own merit.
The aforesaid principle is also consistent with the reasoning adopted by this Tribunal in OA No.1719/2016(supra) wherein, in materially similar circumstances, OBC candidates who had secured merit positions within the range of unreserved vacancies were held liable to be treated against the unreserved category and the resultant OBC vacancies were directed to be filled from amongst the remaining eligible OBC candidates in accordance with merit.
We are unable to accept the reliance placed by the respondents upon Union of India v. Ramesh Ram & Ors.,(supra) as being determinative of the controversy in the present case. In Ramesh Ram (supra), the Hon'ble Supreme Court was concerned with the interpretation and validity of Rule 16(2) of the Civil Services Examination Rules governing allocation of services in the Civil Services Examination. The said Rule specifically permitted a meritorious reserved-category candidate recommended against an unreserved vacancy to be adjusted against a reserved vacancy where such adjustment resulted in allocation of a service of higher preference. The decision thus arose in the distinct setting of service allocation involving different services and preferences under Rule 16(2).
Significantly, the subsequent decision of the Hon'ble Supreme Court in Sandeep Choudhary (surpa) expressly considered the reliance upon Ramesh Ram (supra) and held that the said decision was distinguishable on facts, observing that Ramesh Ram (supra) dealt with Rule 16(2) of the Civil Services Examination Rules and a situation involving service preferences, whereas in the case before it there was no such question of preference. The Hon'ble Supreme Court accordingly declined to treat Ramesh Ram (supra) as an impediment to adjustment of meritorious reserved-category candidates against unreserved vacancies. The reliance of the respondents upon paragraph 32 of Ramesh Ram (supra), therefore cannot be read in isolation so as to lay down an absolute proposition that a reserved-category candidate who has been initially considered or selected against a reserved vacancy can, in all circumstances, be denied adjustment against an unreserved vacancy on the basis of merit. Paragraph 32 has to be understood in the context of Rule 16(2) and the peculiar scheme of Civil Services service allocation considered therein.
We further find substance in the applicant's reliance upon Sandeep Choudhary (supra), Tej Pal Yadav (supra) and the aforesaid decision of this Tribunal. The consistent principle emerging from the judgments relied upon by the applicant is that the reservation mechanism does not operate to exclude a reserved-category candidate from an unreserved vacancy when such candidate is otherwise entitled to selection on the basis of merit and without availing the benefit of the reservation. Conversely, permitting a more meritorious reserved-category candidate to occupy a reserved vacancy, while a lower-ranked candidate is accommodated against an unreserved vacancy, would have the effect of diminishing the opportunity available to the remaining candidates of the reserved category.
In the present case, the respondents have themselves stated that certain OBC candidates were considered against UR vacancies as they had not availed age relaxation and satisfied the prescribed UR age limit. The same principle is therefore required to be examined consistently in respect of the OBC candidates at Serial Nos.7 and 8, whose claim is founded upon their higher merit. The mere fact that they were initially considered or appointed against OBC vacancies cannot, by itself, defeat the applicant's claim if, on verification of the record, it is found that they were otherwise eligible for consideration against UR vacancies on their own merit and without availing any relaxation.
We are, therefore, of the considered view that the select list was required to be prepared by applying the principle of merit migration in accordance with the law laid down by the Hon'ble Supreme Court. The OBC candidates who were within the range of UR merit and had not availed any relaxation could not have been counted against the OBC vacancies merely because they had initially been considered in that category. Their adjustment against UR vacancies would result in corresponding OBC vacancies becoming available, which were required to be filled from among the remaining eligible OBC candidates in order of merit. The applicant, being placed at Serial No. 9 with 130 marks, is consequently entitled to consideration against such resultant OBC vacancy, subject to fulfillment of all other applicable conditions.
In Triloki Nath Tiku & Anr. vs. State of Jammu & Kashmir & Ors., 1967 AIR SC 1283, the Apex Court held that the predominant concept underlying Article 16 is equality of opportunity in the matter of employment. Without detriment to that concept, the State is enabled to make reservations in favour of backward classes so as to give practical content to the concept of equality. It is implicit in the Article that the doctrine of equality of opportunity must be reconciled with that of reservation in favour of backward classes in such a manner that the latter, while serving the cause of backward classes, does not unreasonably encroach upon the field of equality.
Even in Civil Appeal No. 14112 OF 2024 – Rajasthan High Court & Anr. Vs. Rajat Yadav & Ors., decided on 19.12.2025, the Apex Court, in paragraph 74, observed as follows:
“74.Before we part, we find it necessary to enter a caveat. A situation could arise, if the aforesaid principles were applied, of a reserved category candidate based on his/her performance outshining General/Open candidates and figuring in the General merit list, but finding the options to be limited. He/she may, as a consequence of being counted as a General candidate, lose out on a preferred service or a preferred post because the same is reserved for a reserved category candidate. Should such an eventuality occur, the same is bound to breed dissatisfaction, disappointment and displeasure which are not in the interests of public service. After all, fairness matters even in public employment. Where adjustment against the unreserved category would result in a more meritorious reserved category candidate being displaced in favour of a less meritorious candidate within the same category for a preferred service or a preferred post within the reserved quota, the former must be permitted to be considered against the service/post in the reserved quota. This would ensure merit being preserved both across categories and within them, and that reservation functions as a means of inclusion rather than an instrument of disadvantage. The approach adopted by us in holding so is consistent with the view expressed by this Court, encapsulated in paragraph 24.1 of Alok Kumar Pandit (supra). We may also mention here that prior to the view expressed in Alok Kumar Pandit (supra), the High Court at Calcutta in a somewhat like situation took the same view in Mukul Biswas v. State of West Bengal.”
6. CONCLUSION :
In view of the aforesaid analysis, the Original Application is allowed and the respondents are directed to recast the select list by adjusting the eligible OBC candidates who secured merit within the range of UR vacancies against the UR category, and thereafter consider the applicant against the resultant OBC vacancy in accordance with his merit and the applicable recruitment rules.
The exercise, as ordained above, shall be undertaken within a period of three months from the date of receipt of a certified copy of this order. Consequential benefits on notional basis, if otherwise admissible in accordance with law, shall follow.
Pending M.A.(s), if any, shall stand disposed of.
There shall be no order as to costs.