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Judgment
P.S. Mishra, C.J.—Many exercises, litigations and pronouncements of the Courts and many efforts as to how reservations for socially and educationally Backward Classes, Scheduled Castes and Scheduled Tribes would be rationalised, it appears, have failed to create necessary awareness even in organisations which boast of being one of the largest Public Undertakings and a ''State'' under Article 12 of the Constitution of India. The instant case of a damage to a person belonging to a backward class and entitled to the benefit of reservation merely because he has been more meritorious than others in his class of backward, is a glaring example of the above.
The instant appeal under Clause 15 of the Letters Patent of the Court has arisen from the judgment of the learned single Judge in a petition under Article 226 of the Constitution of India. Relevant facts, which are undisputed are that the petitioner along with other candidates appeared in the written test for recruitment as sub-staff of the respondent-Corporation and being successful in the written test, was interviewed and in the selection list found himself placed at S.No.47. Respondents selected 112 candidates and prepared accordingly a list on 23-9-1995 dividing the posts as follows for different categories:
56 posts - General Category
31 posts-O.B.C.
17 posts - Scheduled Castes
6 posts - Scheduled Tribes
2 posts - Ex-service men
It is said since 56 posts were earmarked for General Category and the petitioner-appellant occupied 47th position in the list prepared on 23-9-1995 in the appointments that the respondents have been making, they took others in O.B.C category and appointed them. Some appointments they made in General Category; however, the petitioner-appellant''s turn being at S.No.47 has not yet come.
Petitioner-appellant has moved this Court alleging that he being much above in the merit list of 112 candidates than other candidates belonging to O.B.C category, before any person ranking below him was appointed, he ought to have been appointed.
Respondents have contended that since the petitioner-appellant has qualified legitimately for being appointed in the General Category (56 posts earmarked for General Category), he cannot have any claim for being considered for appointment in the O.B.C category. Learned single Judge has accepted the above contention and observed as follows:
"The petitioner cannot compare himself with other B.C. candidates who have secured place in the reserved category. The petitioner''s case cannot be considered in the reserved category and any such consideration could be contrary to the scheme and the concept of the reservation itself.
The learned senior Counsel appearing on behalf of the respondent-Corporation brings to my notice that the petitioner is likely to get his appointment in due course. It is stated that the respondent-Corporation had already appointed persons placed upto serial No. 31 in General Category and in due course, the petitioner''s case shall also be considered and is likely to be appointed.''''
In R.K. Sabharwal and others Vs. State of Punjab and others, , the Constitution Bench of the Supreme Court has said:
"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 arc to be filled from amongst the members of reserve categories and the candidates belonging to the general category arc 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...... 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..... No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class..... 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."
It appears, the above, in our view, is enough for the conclusion that merely because the petitioner-appellant has also entered by dint of merit in the arena of the General Category of candidates, he has not ceased to be a person belonging to the Other Backward Classes (OBC) in case all categories candidates are appointed simultaneously and the petitioner-appellant by dint of his merit was appointed in the General Category, reserved posts for other Backward Classes would not have been reduced and he would not have been taken as one appointed against the reserved post. No one, however, in his category, i.e. other Backward Classes, who is less meritorious than him could be appointed ignoring his claim and by just doing exactly, what obviously is in the teeth of this principle of law, respondents have violated under Article 14 of the Constitution read with Article 16(1) thereof.
Learned Counsel for the respondents has drawn our attention to a Two-Judge Division of the Supreme Court in Ritesh R. Sah Vs. Dr. Y.L. Yamul and others, , which, in our view, supports the view taken by us above than supporting the view which has prevailed before the learned single Judge. Dealing with the case of reservation in admissions to the medical colleges, the Supreme Court in the said judgment has pointed out that in view of the legal position enunciated by the Supreme Court, 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 seats reserved for reserved category. But at the same time, the provision should be so made that it will not work out to the disadvantage of such candidates and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The Supreme Court in the said judgment has pointed out, "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 in 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." Without any ambiguity, thus, respondents ought to have understood that reservation is sanctioned as a rule for advancing the cause of a candidate belonging to the socially and educationally backward classes or scheduled castes or scheduled tribes and not to cause any disadvantage to such a person on the ground that he has more merit than others who are in the category of socially and educationally backward classes or Scheduled Castes and Scheduled Tribes. Respondents have caused immense damage to the interests of the petitioner-appellant by denying to him primacy which he deserved on the basis of the merit amongst the socially and educationally backward classes. No one can suggest that inter se amongst those who are placed in one or the other category of reservations, less meritorious will have primacy upon the most meritorious. Respondents have almost said to the petitioner-appellant that because you are more meritorious in your category of socially or educationally backward classes, we provide appointment to those who are less meritorious in your class.
For the reasons aforementioned, we come to the irresistible conclusion that the impugned judgment is not sustainable. It is accordingly set aside. Petitioner-appellant in our view is entitled to be appointed, if otherwise not found ineligible, before next to him in merit and belonging to the Other Backward Classes, to which category he belongs. This can be achieved by giving to the petitioner-appellant such appointment fictionally over the next in merit to him and belonging to his class.
The appeal and the writ petition are accordingly allowed. Respondents are directed to consider the petitioner-appellant for being appointed as sub-staff fictionally before the appointment of the candidate who is next in merit and belongs to his class, if not earlier appointed in General Category, i.e., before next in merit to him in his class is appointed as sub-staff.
Since the petitioner-appellant has already suffered and respondents, even if they intend to do so fully repair the injury sustained by him, it is desirable that the exercise, as directed by us above, is completed within three months form the date of receipt of a copy of the order of the Court.
Petitioner-appellant can serve a copy of the order of the Court for doing the needful upon the competent authority in the Life Insurance Corporation.