Nirmala Chandra vs State of Chhattisgarh and Others

Pritinker Diwaker, J.�Vide advertisement dated 20.4.2005 (Annexure P-2) 277 posts of Shiksha Karmi Grade-III were advertised out of which 36 posts were kept reserved for women (unreserved) and 12 for women (OBC) category, pursuant to the said advertisement the petitioner had applied for the said post against women (OBC) category. After verification of the documents interview of the candidates was conducted and vide Annexure P-8 merit list for women (unreserved) category was prepared in which name of the petitioner was at S. No. 1 as she had scored the highest i.e. 56.55 marks. A separate list was prepared for the women (OBC) candidates in which the candidate who is at S. No. 1 is said to have scored 53.05 marks i.e. less than the petitioner. Vide order dated 17.6.2005 (Annexure P-3) the petitioner was appointed on the post of Shiksha Karmi Grade-III. Entire selection list of Shiksha Karmi Grade-III was cancelled by the Collector on 13.7.2005 vide Annexure P-4. However, the said order passed by the Collector was set aside by this Court in WP (S) No. 3399/2005 and thus the petitioner still continues in service along with other candidates.

On 18.11.2011 the petitioner was asked to appear before the competent authority for verification of the documents and accordingly she appeared thereon 24.11.2011. After being satisfied with the documents submitted by the petitioner on 22.3.2012, she was informed about her selection on the post of Shiksha Karmi Grade-III against the women (unreserved) category but as she had appeared in the examination against the women (OBC) category she was not entitled to be appointed on the said post. Reply was submitted by the petitioner stating that as her appointment was made strictly on the basis of merit, there was no illegality in the same. Vide order dated 13.4.2012 (Annexure P-1) services of the petitioner have been terminated on the ground that she was appointed against the seat reserved for women (unreserved) category whereas she was the candidate of the category of women (OBC) and therefore her appointment was not in accordance with law. It is this order which is under challenge in this petition.

Counsel for the petitioner submits that in the list of women (unreserved) category (Annexure P-8) the petitioner is at S. No. 1 having scored highest i.e. 56.55 marks and it hardly makes any difference that she belongs to women (OBC) or women (unreserved) category. He submits that once the petitioner has topped the merit list of women (unreserved) category, in the entire selection list of women candidates she would remain at S. No. 1. According to the counsel for the petitioner as the petitioner has scored highest marks, inclusion of her name in the category of women (unreserved) category is in accordance with law and there is no infirmity in the same. According to him, even assuming that name of the petitioner was wrongly included (though it is not correct) in the merit list of women (unreserved) category having scored 56.55 marks, she would be at the top of the list of the candidates belonging to women (OBC) category (Annexure P-9) because in the said category the candidate who has been shown at S. No. 1 has scored 53.05 marks. According to the counsel for the petitioner, the settled legal position that the candidate belonging to reserved category can be included in the list of unreserved candidates if he/she has scored more marks than the last scored by the candidate in the said category, has been completely misunderstood by the respondents while issuing the impugned order.

On the other hand counsel for the respondents supports the order impugned and submits that it is strictly in accordance with law and there is no infirmity in the same. He submits that several complaints were received regarding the irregularities in the appointment of Shiksha Karmis, enquiry committee was constituted and on the basis of the report of the committee, the order was passed after giving due opportunity of hearing to the petitioner.

Heard counsel for the parties and perused the documents on record.

From the merit list of the women (unreserved) (Annexure P-8) it is apparent that the petitioner is at S. No. 1 of the list having scored the highest i.e. 56.55 marks. Even assuming that the petitioner cannot be included in the list of candidates belonging to unreserved category but looking to the marks scored by her she would automatically be placed at S. No. 1 in the category of women (OBC) and being so she is entitled to be appointed as Shiksha Karmi Grade-Ill.

It is a settled position of law that candidates belonging to reserved category have every right to get their names included in the list of unreserved category provided they have meritorious position in the reserved category. Merely on the basis of their caste and community, their names cannot be excluded from the list of unreserved category.

In the case of R.K. Sabharwal and others Vs. State of Punjab and others, it has been held by the Apex Court as under :

"4. 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 are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are 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. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. 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. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a 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 but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. 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. We, therefore, see no force in the first contention raised by the learned counsel and reject the same."

In the matter of Union of India and others etc. Vs. Virpal Singh Chauhan etc., It has been held by the Supreme Court as under:

"29....(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para-5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but elected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates....."

Further in the matter of Ritesh R. Sah Vs. Dr. Y.L. Yamul and others, it has been held by the Supreme Court as under :

"14. In a case Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., , commonly known as Mandal''s case, this Court held thus:- (SCC p. 735, para 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 R.K. Sabharwal and others Vs. State of Punjab and others, , the Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-�-vis reservation and held thus:-(SCC p. 750, para 4)

"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 are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are 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. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise make the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. 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. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a 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 but so long as the instructions/rules providing certain percentage of reservations for the backward Classes are operative the same have to be followed. 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."

In Union of India and others etc. Vs. Virpal Singh Chauhan etc., it has been held that While determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.

In Ajay Kumar Singh and Others Vs. State of Bihar and Others, a three-Judge Bench considered the same question for admission in post graduate medical course. It was contended that once the candidates seeking admission to post graduate medical course have already enjoyed the benefit of reservation at the stage of their admission to M.B.B.S, course, they are not eligible for admission to post-graduate medical course, as reserved candidates. The contention that provision for reservation at the stage of admission to post graduate medical course is uncalled for and contrary to public interest, cannot be accepted. Firstly, the assumption on the basis of which this argument is addressed is untenable. A candidate who is seeking reservation at the stage of admission to post-graduate medical course may not have availed of the benefit of reservation at the stage of admission to M.B.B.S. course as he would have been admitted on his own merit in the general quota [open competition quota but because the competition at the level of post-graduate medical course is extremely acute, he may have to seek the benefit of reservation. Therefore, the assumption that a student seeking benefit of reservation at the stage of admission to postgraduate medical course has already enjoyed the benefit of reservation once previously is not necessarily true. Secondly, there is no rule under Article 15[4] that a student cannot be given the benefit of reservation at more than one stage during the course of his education career. Where to draw the line is not a matter of law but a matter of policy for the State to be evolved keeping in view the larger interests of the society and various other relevant factors. Unless the line drawn by the State is found to be unsustainable under the relevant article, the court cannot interfere. With regard to the observations in Indra Sawhney case in paras 834 and 839 relied upon to contend that the reservation for admission at the post-graduate level is unconstitutional, it was clarified in para 8 that "the Court was not speaking of admission to specialties and super specialties, Moreover, MS or MD are not super-specialities. In any event, this Court did not say that they were not permissible". The argument that reservation at post-graduate level is detrimental to the interests of the society was not countenanced holding that "no one will be passed unless he acquires the requisite level of proficiency. Secondly, the academic performance is not guarantee of efficiency in practice. We have seen both in law and medicine that persons with brilliant academic record do not succeed in practice while students who were supposed to be less intelligent come out successful in profession/practice. It is, therefore, wrong to presume that a doctor with good academic record is bound to prove a better doctor in practice. It may happen or may not". In view of the legal position enunciated by this Court in the aforesaid cases 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 provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. 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 while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved category candidate. The Full Bench of the Bombay High Court in Ashwin Prafulla Pimpalwar v. State of Maharashtra held that selection of candidates for admission to post-graduate medical course in colleges run by or under the control of the State Government shall be regulated in accordance with the prescription in that behalf contained in the rule for selection of the candidates for admission to the post-graduate medical course notified by the Government. The contention that the candidates belonging to the backward classes admitted to M.B.B.S. course selected as general candidates are not eligible for admission as reserved candidates or for scholarship etc. and also for admission to post-graduate medical course as reserved candidates, is illegal for and in negation of Article 15(4). The memorandum issued by the Government on the basis of the statement made by the Minister of Health, Government of Maharashtra was placed before us showing that such candidates are entitled to all the benefits though admitted on merit basis. The said statement is consistent with Article 15(4). Therefore, the candidates belonging to backward classes but selected as general candidates for admission to graduate or post-graduate medical course are entitled to the concessions or scholarships and other benefits according to the rules or instructions of the State Government or the Central Government as the case may be. The admission to the Medical Colleges for the year 1995-96 in the State of Maharashtra is already over and we are not inclined to interfere with the admissions already made but we do commend that while deciding and publishing the Rules for admission in the next academic session directions given in this judgment should be borne in mind and the rules should be made accordingly. In view of our conclusion, and admittedly the authorities having admitted the candidates belonging to the reserved category only against seats meant for reserved category even though they were entitled to be admitted on the basis of their merit, the petitioner who could have been otherwise admitted, has been debarred from taking admission. Since the petitioner is a single applicant before us, we direct that the petitioner be admitted to any one of the colleges where he can be so admitted to the MBBS course where seat is still available and if no seat is available then he may be admitted by increasing one seat in any one of the colleges. It may be made clear that, if the petitioner is desirous of being admitted to any of the Medical colleges in pursuance of this Court''s order then he should approach the Designated Authority within two weeks from today and the Designated Authority will then take appropriate action within two weeks thereafter. The designated authority will decide the college to which the petitioner will be admitted."

In the matter of Union of India (UOI) and Another Vs. Satya Prakash and Others, it has been held as under :

"18. By way of illustration, a reserved category candidate, recommended by the Commission without resorting to relaxed standard (i.e. on merit) did not get his own preference ''say IAS'' in the merit/open category. For that, he may opt a preference from the reserved category. But simply because he opted a preference from the reserved category does not exhaust quota of OBC category candidate selected under relaxed standard. Such preference opted by the OBC candidate who has been recommended by the Commission without resorting to the relaxed standard (i.e. on merit) shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and other Backward Classes. This is the mandate of proviso to sub-rule (2) of Rule 16.

In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to relaxed standard.

If a candidate of Scheduled Caste, Scheduled Tribe and other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she can opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preference."

Further in the matter of Bihari Lal Rada Vs. Anil Jain (Tinu) and Others, it has been held as under :

"32. The 1973 Act, makes available the minimum number of seats to the Scheduled Castes and Backward Classes by way of reservation in proportion to their population. This does not prevent the Scheduled Castes and Backward Classes in getting themselves elected from the unreserved seats on their own merit. The obvious purpose of providing such reservation to the Scheduled Castes, Backward Classes and Women who were unable to get adequate representation in the Local Bodies in the absence of reservation. Reservation ensures that at least minimum number of persons belonging to such classes would get elected. Reservation so made in their favour does not mean that they are not entitled to contest election from unreserved seats and to the offices of Chairperson as the case may be. The reservation does not limit number of candidates from reserved category to be elected. They are eligible to contest from the unreserved seats and get elected resulting in increase of their representation in the Local Bodies.

Be that as it may, neither Article 243-T of the Constitution nor Section 10(5) of the Haryana Municipal Act provide for any reservation to the office of the President in favour of any candidate who does not belong to Scheduled Caste or Backward Class. Obviously there cannot be any such reservation of seats in Municipalities nor to the office of Chairperson in favour of candidates belonging to general category. There is no separate category like general category. The expression belonging to the general category wherever employed means the seats or offices ear-marked for persons belonging to all categories irrespective of their caste, class or community or tribe. The unreserved seats euphemistically described as general category seats are open seats available for all candidates who are otherwise qualified to contest to that office.

There is nothing in the provisions of the Act, 1973 suggesting that in case the office of the President of a Municipality is required to be filled in from the members belonging to the general category then only a member who has been elected as such from an unreserved ward alone can stand for election. There is nothing in law that a person belonging to Backward Class and got himself elected from a ward reserved for that class is debarred from contesting the election to the office of President/Chairperson when that office is not reserved and meant to be filled in from the members belonging to the general category.

In our view, wherever the office of the President of a Municipality is required to be filled in by a member belonging to Scheduled Caste, Scheduled Tribe or Backward Class as the case may be it would be enough if one belongs to one of those categories irrespective of the fact whether they have been elected from a general ward or a reserved ward. Likewise, the office of the President of a Municipality if not reserved or meant for general category, all the candidates irrespective of their caste, class or community and irrespective of the fact whether they have been elected from a reserved ward or a general ward are entitled to seek election and contest to the office of the President of the Municipality."

In view of the aforesaid factual and legal position, this Court is of the considered opinion that order impugned (Annexure P-1) terminating the services of the petitioner is bad in the eye of law and therefore it is liable to be set aside. It is accordingly set aside.

As by virtue of the interim order dated 1.8.2005 the petitioner is already working as Shiksha Karmi Grade-III, no further order is required to be passed. However, she would be entitled for all the consequential benefits if not already passed on to her or withheld for the reason of pendency of this writ petition. Petition allowed. There would be a cost of Rs. 5000/- payable to the petitioner.