Animesh Choudhary vs State of U.P. and Another

Dilip Gupta, J.—The petitioner who had applied as a candidate belonging to the OBC category has challenged the selections made to the post of Gram Panchayat Adhikari pursuant to the advertisement issued on 10th August, 1998.

The respondents have filed a counter affidavit and two supplementary counter affidavits. The original records have also been examined.

It transpires that at the pre-interview stage, marks were given to the candidates on the basis of the marks obtained by them at the Intermediate Examination and the Written Examination. The petitioner obtained 44.50 marks at the pre-interview stage and was placed at serial No. 59 in the list of General Category candidates to be called for interview. This list contained the names of 64 candidates and the candidate at serial No. 1 in the said list obtained 51.41 marks while the candidate at serial No. 64 obtained 44.42 marks. Likewise, a list of 36 candidates belonging to the OBC Category to be called for interview was also prepared. The candidate at serial No. 1 in this list obtained 44.21 marks while the candidate at serial No. 36 obtained 40.78 marks.

The candidates were called for interview. The petitioner obtained 2.35 marks at the interview and thus his total marks became 46.85. 16 candidates were selected under the General Category and 9 candidates were selected under the OBC Category. The records also indicate that under the General Category, the selected candidate at serial No. 1 obtained 58.66 marks in total and the selected candidate at serial No. 16 obtained 53.28 marks in total. In the OBC Category, the selected candidate at serial No. 1 obtained 52.91 marks in total while the selected candidate at serial No. 9 obtained 50.20 marks in total.

As noticed hereinabove, the petitioner had obtained only 46.85 marks in total and, therefore, he could neither be selected under the General Category and nor could be selected under the OBC Category.

Sri O.P. Pandey, learned Counsel appearing for the petitioner has contended that the petitioner had submitted his application as OBC Category candidate but the respondents wrongly treated him as a candidate belonging to the General Category since his name appeared at serial No. 59 in the list of General Category candidates prepared at the pre-interview stage. He also contended that like the petitioner, one Shiv Shankar had also applied as OBC Category candidate and even though his name did not appear in the list of candidates to be called for interview under the OBC Category, he was ultimately selected as OBC Category candidate and was placed at serial No. 4. It is his contention that the petitioner should have been selected under the OBC Category since Shiv Shankar had obtained only 46.43 marks at the pre-interview stage, while the petitioner had obtained 44.50 marks at the pre-interviews stage.

Learned Standing Counsel, however, in view of the provisions of Section 3(6) of the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes) Act 1994 (hereinafter referred to as the Act) has submitted that the petitioner was rightly placed in the General Category list of candidates to be called for interview even though he had applied as a candidate belonging to the OBC Category since he had obtained more marks at the pre-interview stage than the last candidate in the General Category. He states that the petitioner had obtained 44.50 marks and Shiv Shankar, who was also a candidate belonging to the OBC Category, had obtained 44.43 marks were placed in the General Category list of candidates called for interview since they had obtained more marks than the last candidate in this list who had obtained 44.42 marks. At the interview, Shiv Shankar obtained 5.70 marks and so his total marks became 52.13. He was, accordingly, selected under the OBC Category.

I have carefully considered the submissions advanced by the learned Counsel for the parties.

It is not in dispute that the petitioner belongs to OBC Category and he had secured 44.50 marks at the pre-interview stage. The stand taken by the respondents is that the petitioner was placed in the General Category at the pre-interview stage since he had obtained 44.50 marks. It needs to be mentioned that the first candidate in this list of 64 candidates obtained 51.41 marks while the last candidate obtained 44.42 marks. The list of 9 candidates called for interview in the OBC Categories contain the names of such OBC Category candidates who had obtained less than 44.42 marks.

It needs to be mentioned that like the petitioner, Shiv Shankar was also placed in the General Category list at serial No. 27 since he had obtained 46.43 marks at the pre-interview stage. Shiv Shankar obtained 5.70 marks in the interview and thus his total became 52.13 marks. He was not placed in the selected General Category list because the last General Category selected candidate had secured 53.28 marks.

Section 3(6) of the Act provides:

3(6) If a person belonging to any of the categories mentioned in sub section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under Sub-section (1).

In Post-Graduate Institute of Medical Education and Research etc. Vs. K.L. Narasimhan and another etc., the Supreme Court observed:

It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate.

In Hindustan Construction Co. Ltd. Vs. State of Jammu and Kashmir, the Supreme Court held in paragraph 811:

In this connection it is well to remember 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.

In M. Nagaraj and Others Vs. Union of India (UOI) and Others, , the Supreme Court held in paragraph-60:

In Indra Sawhney Jeevan Reddy, J. noted that reservation under Article 16(4) does not operate on communal ground. Therefore, if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal the Supreme Court held that while general category candidates are not entitled to fill the reserved posts, reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of 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.

In Shiv Prakash Yadav and Ors. v. State of U.P. and Ors. 2008 (1) ESC 507), a Division Bench of this Court also observed:

At this stage, it would be prudent to notice when certain seats are reserved, it would not result in making unreserved seats compartmentalized for general category candidates i.e. unreserved candidates. There is no reservation for general category candidates. In other words we can say, when certain seats are reserved, a reserve category candidate in addition to reserve seats can always compete for unreserved seats. The unreserved seats are available to all the candidates who participate in the selection irrespective of category for which they belong but a reserve seat is available only to the category of the candidate to which such reserve seat is meant for. To illustrate, if out of 100 seats, 27 are reserved for O.B.Cs., 18 for S.C. And 2 for S.T. candidates, it would mean that an O.B.C. candidate would be able to compete against 27 seats reserved for O.B.C. as well as remaining 53 unreserved seats. Similarly a S.C. candidate would be able to compete against 18 seats reserved for S.C. as well as remaining 53 reserved seats, and a S.T. candidate would be able to compete against 2 seats reserved for S.T. as well as remaining 53 unreserved seats. On the contrary a general category candidate would be able to compete only against 53 unreserved seats. The zone of consideration, therefore, against the unreserved seats is much wider and extend to 100% of the candidates who participate in the selection but it is not so for reserved seats. The only rider would be, if in the selection process, the test of assessment, merit etc. is different qua unreserved seats and reserved seats, and the candidates belonging to reserved seats enbloc are considered, separately at any stage, than such difference in standard or criteria or indicia having a material bearing in the assessment of merit and influence the open competition and in such case the reserve category candidate may not compete for unreserved seats on account of variation in the standard and not otherwise. It is true and as already observed above, a reasonable balance has to be struck between the rival claim of respective categories.

...

It is true that interpretation of statute would not depend on the understanding of the executive but the fact remains that on and after the enforcement of Act of 1994, in the State of U.P., Section 3 (6) is being implemented by giving adjustment to reserve category candidates against unreserved seats provided they are selected in open competition with general category candidates without availing any concession or relaxation in the standard of selection which does not include relaxation in age or fee.

...In other words we can say that concession in fee or relaxation in upper age limit are the provision not concerned with the process of selection i.e. open competition itself but are the provisions pertaining to eligibility i.e. to bring in a candidate in the zone of consideration. Once a person is included in the zone of consideration, he is entitled to participate in the open competition irrespective of difference in the eligibility qualification. Further, if on account of his identity belonging to particular category, any procedural difference is observed in the selection itself, in that case only, such an adjustment u/s 3 (6) of the Act of 1994 would not be applicable and not otherwise.

...

The reason for considering reserve category candidates against unreserved seats is writ large. As said earlier, an unreserved seat is available to all the candidates who are in the zone of consideration but a reserve seat is confined to a candidate of that particular person. In an open competition, general category candidate is entitled to compete only against an unreserved seat but a reserve category candidate in addition to his right to be considered against the reserve seat is also entitled to be considered against unreserved seats. His option in the application for consideration of his candidature for reserve seat is only a declaration of his intention to be considered against reserve seat without depriving himself right to be considered against an unreserved seat...

There is no averment in the writ petition that there was any procedural difference at the interview stage when the General Category and the reserved Category candidates were interviewed. Thus, in view of the aforesaid decisions, the respondents committed no illegality in placing the petitioner and Shiv Shankar in the list of General Category candidates to be called for interview.

The contention of the learned Counsel for the petitioner that Shiv Shankar could not have been selected under the OBC Category because he had not appeared at the interview as OBC Category candidate cannot be accepted. Shiv Shankar was placed in the list of General Category candidate to be called for interview and he had appeared for interview and obtained 5.70 marks.

Learned Counsel for the petitioner then contended that the marks at the interview have been arbitrarily given and candidates securing lesser marks at the pre-interview stage have been pushed up by giving high marks in the interview. This contention cannot be accepted. There is nothing on the record to substantiate such an averment and secondly the records indicate that five members constituted the Interview Panel and each member had separately given marks out of 10 and it is the average marks that have been calculated for the purposes of awarding marks at the interview. In the absence of any malice against the members of the Interview Board, there is no reason to doubt the award of marks by the Interview Panel.

The petitioner, for all the reasons stated above, could not have been selected for the post of Gram Panchayat Adhikari.

There is, therefore, no merit in the petition. It is, accordingly, dismissed.