Mohd. Vaseem vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Ajay Veer Pundir, learned counsel for the petitioner, Mr. S.S. Chaudhary, learned Brief Holder for the State Government and Mr.

Rakesh Thapliyal, learned Senior Counsel appearing for respondent no.2.

The jurisdiction of this Court has been invoked by the petitioner herein seeking a writ of certiorari to quash the select list for the post of Assistant

Professor (Mechanical Engineering); and for a writ of mandamus commanding the second respondent to issue 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-Institution invited applications to fill up six posts of Assistant Professors in

Mechanical Engineering. Of these six posts, one was reserved in favour of the Scheduled Castes, one in favour of the Other Backward Classes and

the other four were in the open/general category. On completion of the selection process, a select list was prepared which disclosed that, while the

petitioner had secured 68.72 marks, the third respondent had secured 68.21 marks, the fourth respondent- 67.52 marks and the fifth respondent-69.42

marks. The petitioner claims that he and the fifth respondent belong to the Other Backward Classes, and respondent nos.3 and 4 belong to the

open/general category and are not entitled for the benefits of vertical reservation. Mr. Rakesh Thapliyal, learned Senior Counsel appearing on behalf

of the second respondent-Institution, would, however, contend that, while the third respondent no doubt belongs to the open/general category, the

fourth respondent belongs to the Other Backward Classes. For reasons to be stated later in this order, it is unnecessary for us to dwell on, or

undertake an examination of, this issue.

Instead of selecting the fifth respondent under the open/general category, the second respondent-Institution selected him under the OBC category

and, though the petitioner had secured more marks than respondent nos.3 and 4, it is respondent nos.3 and 4 who were selected and appointed under

the open/general category, and not the petitioner merely because he belonged to the OBC category.

The 2nd respondent had selected the fifth respondent, under the Other Backward Classes category, on the erroneous premise that posts, in the

open/general category, are unavailable to be filled up by candidates either from the Other Backward Classes, the Scheduled Castes or the Scheduled

Tribes. Upholding this procedure would result in an indirect mode of communal reservation being re-introduced, which the Supreme Court had

frowned upon in 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 Scheduled Tribes and the other backward classes, can be

filled up appointing candidates belonging to the said categories only, all candidates, irrespective of whether or not they belong to the vertically reserved

categories, are entitled to compete, for the posts in the open/general category, on their merit. In effect, all candidates are entitled to be considered on

their merit, to the posts under the open/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 open/general category.

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 of Assistant Professors in Mechanical Engineering,

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

secured more marks than both respondents 3 and 4 as well as the petitioner herein. In case the second respondent had followed this procedure, and

had appointed the 5th respondent under the open/general category, the single post reserved in favour of the Other Backward Classes would have

remained vacant and available to be filled up by the next most meritorious candidate belonging to the Other Backward Classes. The petitioner claims

that it is he who is the next most meritorious candidate in the Other Backward Classes category.

This illegality took place as the second respondent-Institution had prepared a separate merit list of candidates belonging to the Other Backward

Classes, and another merit list of candidates belonging to the Scheduled Castes, and had filled up both the reserved posts with the most meritorious

OBC and SC candidates. They commenced the exercise of filling up the open/general category posts thereafter. As a result, even though the most

meritorious OBC and the Scheduled Caste candidates had secured more marks, two open category candidates, lower in merit than them, were

appointed to two of the four posts in the open/general category.

What the second respondent should have done is to first fill up the four open/general category posts strictly in the order of merit irrespective of

whether the four most meritorious candidates belonged to the OBC or the SC category or did not belong to any category entitled to the benefit of

vertical reservation. After filling up the four posts in the open/general category with the four most meritorious candidates, the second respondent-

Institution should then have undertaken the exercise of filling up the sole posts reserved in favour of the OBC and the SC category, thereby ensuring

that the principle, of providing reservation in addition to merit, is adhered to. If such a procedure had been adopted then, since the more meritorious

Scheduled Caste and the Other Backward Class candidates would have been appointed in the open/general category, the next most meritorious

candidate belonging to the Scheduled Castes and the Other Backward Classes would have been entitled to be appointed in the post vertically reserved

in favour of the Scheduled Castes and the Other Backward Classes. A Division Bench of this Court had, in its order in Writ Petition (S/B) No.314 of

2019 dated 06.03.2020, set aside the appointment of the fourth respondent herein, and had directed the second respondent-Institution to appoint the

most meritorious Scheduled Caste candidate in his place under the open/general category, and appoint the next most meritorious Scheduled Caste

candidate in the post reserved in favour of the Scheduled Castes.

Similarly, since the fifth respondent had secured more marks than the petitioner, the third and the fourth respondents, he ought to have been

appointed as an Assistant Professor (Mechanical Engineering) in the open/general category on his merit, and not under the OBC category. If the fifth

respondent had been so appointed under the open/general category, then the sole post, reserved in favour of the OBC category, would have been

available to be filled up by the next most meritorious OBC candidate, which the petitioner claims that it is he.

As per the marks secured by the candidates referred to in the select list, the petitioner has, admittedly, secured more marks than respondent nos.3

and 4. Mr. Ajay Veer Pundir, learned counsel for the petitioner, claims that the petitioner is the next most meritorious candidate in the OBC category,

after the fifth respondent; both respondent nos.3 and 4 belong to the open/general category; and they are not entitled for the benefit of vertical

reservation.

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 open/general category. Consequently,

appointment of the last selected candidate under the general category, i.e. the 3rd respondent, who secured 68.21 marks (the selection of the 4th

respondent, who secured 67.52 marks, was already set-aside by the order of a Division Bench of this Court in Writ Petition (S/B) No.314 of 2019

dated 06.03.2020), must be, and is accordingly, set aside.

It is contended, on behalf of the 2nd respondent, that the petitioner was wrongly awarded 68.72 marks. From the affidavit, now filed on behalf of

the second respondent, it does appear that a complaint was made by the fourth respondent stating that the petitioner had been erroneously awarded

four marks towards experience, though he was only entitled to be awarded two marks. Mr. Rakesh Thapliyal, learned Senior Counsel appearing on

behalf of the second respondent-Institution, would submit that, if two marks are reduced, the petitioner would then have secured only 66.72 marks

which was less than both respondent nos.3 and 4; and, while respondent no.3 may not be entitled for appointment under the OBC category since he is

not entitled to the benefit of vertical reservation, the fourth respondent belongs to the OBC category and would be entitled, as he would then be more

meritorious than the petitioner, to be appointed to the post earmarked in favour of the OBC category.

It is not in dispute that, in terms of the marks awarded by the selection committee earlier, the petitioner was found more meritorious than both

respondent nos.3 and 4, and would be entitled to be appointed to the post reserved in favour of the OBC category. If, however, his marks are reduced

by two, then he would be lower in merit than the fourth respondent who, according to Mr. Rakesh Thapliyal, learned Senior Counsel appearing on

behalf of the second respondent, also belongs to the OBC category.

Mr. Rakesh Thapliyal, learned Senior Counsel, would submit that a decision in this regard is required to be taken by the Board of Governors of the

second respondent-Institution. Suffice it, instead of taking upon ourselves the task of examining whether or not the petitioner was awarded two excess

marks, to direct the Board of Governors of the second respondent-Institution to examine the representation submitted by the fourth respondent at the

earliest and, after affording the petitioner an opportunity of being heard, pass appropriate orders on whether or not the marks awarded to the

petitioner, ie 68.72 marks, should be retained or reduced.

The Board of Governors of the second respondent-Institution shall take a decision regarding the marks awarded to the petitioner at earliest, and fill

up the posts of Assistant Professor (Mechanical Engineering), reserved in favour of the OBC category, with the most meritorious candidate belonging

to the OBC category, below the fifth respondent herein who must be deemed, notwithstanding that he belongs to the OBC category, to have been

appointed as an Assistant Professor in Mechanical Engineering under the open/general category on his merit. In case, the petitioner is the next most

meritorious candidate from the Other Backward Classes category, 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 Other Backward Classes category and appoint him to the

said post.

The entire exercise, culminating in filling up the post of Assistant Professor, in Mechanical Engineering reserved in favour of the OBC category,

shall be completed with utmost expedition and, in any event, within one month from today.

The Writ Petition is accordingly disposed of. No costs.

Let a certified copy of this order be furnished to the learned counsel for the parties, by 15.06.2020, on payment of the prescribed charges.