Amit Kumar vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Sri Ajay Veer Pundir, learned counsel for the petitioner, Sri Pradeep Joshi, learned Standing Counsel for the State Government appearing on

behalf of the first respondent, and Sri Rakesh Thapliyal, learned Senior Counsel appearing on behalf of the second respondent. Despite service of

notice, respondent nos. 3 to 5 have neither entered appearance through counsel, nor are they present in Court, and as such the writ petition is disposed

of taking into consideration the submissions put forth by the learned counsel appearing on behalf of the petitioner, the learned Standing Counsel

appearing on behalf of the first respondent, and the learned Senior Counsel appearing on behalf of the second respondent.

The petitioner herein has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the impugned select-list qua the post of Assistant

Professor in the Department of Mechanical Engineering; and for a writ of mandamus commanding and directing the second respondent to issue an

appointment letter to the petitioner for the post of Assistant Professor in the Department of Mechanical Engineering.

Facts, to the limited extent necessary, are that the second-respondent issued an advertisement on 12.09.2018 inviting applications for various posts,

of Professors, Associate Professors and Assistant Professors, in different departments. In so far as the Department of Mechanical Engineering is

concerned, by the said advertisement, applications were invited for six posts of Assistant Professors of which one was reserved in favour of the

Scheduled Castes, one in favour of the other backward classes, and the other four posts were left unreserved. The petitioner, who is a graduate in

Technology and a post-graduate in Mechanical Engineering, belongs to the Scheduled Caste category. He applied for the post of Assistant Professor

in Mechanical Engineering, and was issued an admit-card to appear in the written examination. On his being declared to have qualified in the written

examination, he was called for the interview. The petitioner was, however, not selected as an Assistant Professor on the ground that he had secured

61.13 marks, whereas respondents 3 to 5 had all secured more marks than him. It is not in dispute that, while the third respondent had secured 68.21

marks, the 4th respondent had secured 67.52 marks, and the 5th respondent had secured 70.86 marks. While the four posts, in the unreserved

category, were filled-up by two candidates, who had secured more marks than respondents 3 to 5, the other two unreserved posts were filled up

appointing respondent nos. 3 and 4, though the fifth respondent had secured more marks than them. The fifth respondent was, instead, appointed as an

Assistant Professor in Mechanical Engineer under the Scheduled Caste category.

The petitioner’s complaint, in this writ petition, is that, while the 5th respondent, no doubt, belongs to the Scheduled Caste category, he had

secured more marks than respondents 3 & 4 and ought, therefore, to have been appointed under the General category; if the 5th respondent had been

appointed, as an Assistant Professor in Mechanical Engineering, under the general category, then the post filled up by him under the Scheduled Caste

category would have been available to be filled up by the next most meritorious Scheduled Caste candidate which, in the present case, is the petitioner;

and, consequently, the last selected candidate in the general category, i.e. respondent no. 4 who secured 67.52 marks, ought not to have been

appointed, as an Assistant Professor in Mechanical Engineering under the general category, which post should have been filled up appointing the fifth

respondent instead.

On the other hand Sri Rakesh Thapliyal, learned Senior Counsel appearing on behalf of the second respondent, would submit that four posts of

Assistant Professor Mechanical Engineering were in the unreserved category, one in the Scheduled Caste category and one in the OBC category;

separate merit lists were prepared for the general category, the Scheduled Caste category, and the Other Backward Classes category; in the merit list

of Scheduled Caste candidates, the 5th respondent was the most meritorious and, consequently, he was appointed under the Scheduled Caste quota;

and as the petitioner stood lower in the merit than the 5th respondent, he was not entitled to be considered for appointment to the post of Assistant

Professor in Mechanical Engineering reserved in favour of the Scheduled Castes.

The fallacy of the submission, urged on behalf of the respondents, lies in the erroneous premise that candidates in whose favour vertical reservation

is provided, (be it the Other Backward Classes, the Scheduled Castes or the Scheduled Tribes), are not entitled to compete on the basis of their merit

in the general category. Reservation in favour of these categories is, undoubtedly, a vertical reservation, but is in addition to merit. The law does not

envisage reservation in favour of the general category. Every eligible candidate irrespective of his social status, (whether or not he belongs to the

Other Backward Classes, the Scheduled Castes or the Scheduled Tribes), is entitled to be considered, for appointment to posts under the general

category, solely on the basis of his/her merit. In the case of vertical reservation, it is only after candidates are selected in the general category, would

candidates lower in merit be considered for appointment to posts reserved in favour of the categories to which they belong. For instance, if a

Scheduled Caste candidate secures the first rank in a competitive examination, he would be treated as a general category candidate; and a member of

the Scheduled Castes, next in merit, would be appointed against the quota earmarked for the Scheduled Castes.

The fifth respondent, who was selected against the post reserved in favour of the Scheduled Castes, had secured more marks than those secured

by respondents nos. 3 and 4 who were selected under the general category. If appointment to the said post had been made strictly on the basis of

merit alone, irrespective of the category to which the applicant belonged, the fifth respondent would have been selected for appointment to the said

post, under the general category, on the basis of his merit. The mere fact that he belongs to the Scheduled Castes cannot result in his being deprived

of his right to be considered on his own merit which, in the present case, is higher than that of respondents 3 & 4. Despite the fifth respondent having

secured more marks than respondents 3 & 4, he was not appointed to the post in the general category and the third and fourth respondents, who were

less meritorious than he, were selected only on the erroneous premise that the fifth respondent belonged to the Scheduled Castes and he should,

therefore, occupy the post reserved in favour of the Scheduled Castes alone.

The 2nd respondent has selected the fifth respondent, under the Scheduled Castes category, on the erroneous premise that posts, in the general

category, are unavailable to candidates either from the Other Backward Classes, the Scheduled Castes or the Scheduled Tribes. Accepting this

submission would result in an indirect mode of communal reservation being reintroduced, which the Supreme Court had frowned upon in the State of

Madras vs. Sm. Champakam Dorairajan & another: AIR 1951 SC 226. Vertical reservation, not exceeding 50%, can be provided in favour of the

socially and educationally backward sections of society such as the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes. While

posts vertically reserved in favour of the Scheduled Castes, the Schedued Tribes and the other backward classes can be filled up appointing

candidates belonging to the said categories only, all candidates are entitled to compete, for the posts in the general category, on their merit. All

candidates are entitled to be considered on their merit to the posts, under the general category, irrespective of whether they belong to the Other

Backward Classes, the Scheduled Castes, the Scheduled Tribes or do not belong to any of these reserved categories. The most meritorious among all

the candidates are required to be selected and appointed to posts under the general category.

Unreserved posts are required to be filled up strictly on merit, irrespective of whether the candidate belongs to the Scheduled Castes, the Scheduled

Tribes, the Other Backward Classes, or any other community. Reservation, in favour of the socially and educationally backward classes under Article

16(4) of the Constitution of India, is in addition to merit. Consequently, the respondent-University ought to have first filled up the four unreserved posts

strictly on the basis of merit, in which event the 5th respondent would have been selected and appointed under the general category as he had secured

more marks than both respondents 3 and 4. In case the second respondent had followed this procedure, and had appointed the 5th respondent under

the general category, the single post reserved in faavour of the Scheduled Castes would have remained vacant and available to be filled up by the next

most meritorious candidate belonging to the Scheduled Castes. It is not in dispute that, in the present case, the petitioner is the next most meritorious

Scheduled Caste candidate.

The selection process, adopted by the second respondent, is illegal and arbitrary; and is, accordingly set aside. The 5th respondent shall be treated

as having been selected and appointed, as an Assistant Professor in Mechanical Engineering, under the general category. Consequently, appointment

of the last selected candidate under the general category, i.e. the 4th respondent, who secured 67.52 marks, must be, and is accordingly, set aside. In

case, the petitioner is the next most meritorious Scheduled Caste candidate, the second respondent shall consider his candidature for appointment as

an Assistant Professor in Mechanical Engineering in the sole post reserved in favour of the Scheduled Caste category and appoint him to the said post

at the earliest, and in any event, within two months from the date of production of a certified copy of this order.

The Writ Petition is disposed of accordingly. No costs.