Union of India Vs.
Ramesh Ram & Ors.  INSC 1076 (14 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NOS.
13571-13572 OF 2008 Union of India .... Petitioner Versus Ramesh Ram & Ors.
.... Respondents S.L.P. (C) No.13297-13298, 13581, 14834-14838 of 2008 AND WRIT
PETITION (C) Nos. 297, 312, 336 and 416 of 2008
Nos. 13571-13572 of 2008 are filed by the Union of India against the order
dated 20.03.2008 passed by the High Court of Judicature at Madras in W.P. (C)
Nos. 1814 & 1815 of 2008. Other aggrieved persons filed S.L.P. (C) Nos.
13297-13298, 13581 and 14834-14838 of 2008. Being aggrieved by the action of
the Union Public Service Commission and the Government of India through which
candidates in reserved category selected in unreserved category were given
choice to opt for service of higher preference in terms of Rule 16(2) of the
Civil Services Examination Rules, (hereinafter referred to as "CSE"),
successful candidates filed Writ Petition (c) Nos. 297, 312, 336 & 416 of
2008 under Art. 32 of the Constitution of India to declare Rule 16(2),(3),(4)
and (5) of the Civil Services Examination Rules, 2002 as ultra vires being
inconsistent with Rule 16(1) of the said Rules as violative of Arts. 14, 16(4)
and 335 of Constitution of India, consequently, quash the second provisional
list released by Press Note dated 26.6.2008.
Civil Services Examination 2005, in the first phase, UPSC recommended 425 candidates
keeping the consolidated reserved list of 64 candidates as per Rule 16(4) and
16(5). As per Rule 16(2), out of 425 candidates, 31 OBC candidates and 1 SC
candidate were selected on merit without availing any relaxation/concession.
Out of above 31 OBC and 1 SC candidates, 26 OBC and 1 SC candidates were
allocated service against the reserved vacancies as by this process they got a
service of higher choice in the order of preference. If these 27 candidates
were considered for service allocation against the general category and in
competition with general candidates, they would have got the service of lower
preference. Rule 16(2) enables candidate of any of the reserved categories to
get a service of higher preference so that he is not placed at disadvantageous
position vis-`-vis other candidates of his category.
OBC candidates filed Original Application before the Central Administrative
Tribunal, Madras Bench (CAT) challenging Rule 16(2). It was contended that
adjustment of OBC merit candidates against OBC category was illegal. According
to them, such candidates should be adjusted against the unreserved or general
category. This would allow more OBC candidates to be recommended for posts and
it would also allow the lower ranked OBC candidates a better choice of service.
Tribunal, after interpreting amended Rule 16(2) and various judgments of this
Court, concluded that OBC candidates who were selected on merit must be
adjusted against the `general category'. However, it ordered that Rule 16(2)
may be applied in terms of decision of this Court in Anurag Patel vs. U.P.
Public Service Commission & Ors., (2005) 9 SCC 742, to ensure that
allocation of service is in accordance with rank-cum- preference with priority
given to meritorious candidates for service allocation.
the order of the Central Administrative Tribunal, the Union of India and other
aggrieved persons preferred Writ Petitions before the High Court of Judicature
at Madras. Some got themselves impleaded in the said proceedings. By the
impugned order dated 20.03.2008, the High Court held Rule 16(2) as
unconstitutional. After holding so, the High Court set aside the select lists
and directed the Government of India and UPSC to rework service allocation de
hors Rule 16(2).
per the final result of CSE-2005, out of 457 vacancies, 425 candidates were
recommended for appointment which included 210 General, 117 OBC, 66 SC and 32
ST category. UPSC was maintaining a consolidated reserve list of 64 candidates
which included 32 General, 31 OBC and 1 SC candidates ranking in order of merit
below the last recommended candidate under respective category as per Rule
16(4) and (5) of the CSE Rules, 2005. Admittedly, 31 OBC category candidates
selected in the General Merit List were not included in the general category
and instead they were part of 117 OBC category candidates selected with relaxed
standard and an equal number of OBC category candidates in the lower order of
merit were denied job. These 31 OBC category candidates selected in general
merit list were included in the reserve list of OBC category candidate and
thereby making the total of 117 in view of Rule 16(2) of the amended CSE Rules.
The purpose of including those OBC category candidates selected in merit list
was to give them a higher preferred service from the OBC category and this was
the reason for which the Rules were amended.
case of the contesting respondents is that the newly introduced system which is
different from the single list system before the amendment undermines the
rights of the reserved category candidates to get higher preferred services
like IAS, IPS or IRS and also reduces the number of reserved candidates
selected while simultaneously increasing the number of general candidates. It
also puts candidates who come through second list at a disadvantage in terms of
seniority and promotions for rest of their career in their respective services.
By the impugned order, the Central Administrative Tribunal as well as the High
Court vindicated the grievance of all, particularly, OBC candidates.
virtue of notification by the Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training), New Delhi dated 04.12.2004,
CSE Rules were amended and we are concerned with Rule 16 (1) (2) (3) (4) and
(5) which are reproduced hereunder:- "16.(1) After interview, the
candidates will be arranged by the commission in the order of merit as
disclosed by the aggregate marks finally awarded to each candidate in the main
examination. Thereafter, the Commission shall for the purpose of recommending
candidates against unreserved vacancies, fix a qualifying mark (hereinafter
referred to as general qualifying standard) with reference to the number of
unreserved vacancies to be filled up on the basis of the main examination. For
the purpose of recommending reserved category candidates belonging to SC, ST
and OBC classes against reserved vacancies to be filled up in each of these
categories on the basis of the main examination:
Provided that the
candidates belonging to the SC, ST & OBC classes who have not availed
themselves of any of the concessions or relaxations in the eligibility or the
selection criteria, at any stage of the examination and who after taking into
account the general qualifying standards are found fit for recommendation by
the commission shall not be recommended against the vacancies reserved for SC,
ST & OBC.
16 (2) While making
service allocation, the candidates belonging to the SC, ST or OBC recommended
against unreserved vacancies may be adjusted against reserved vacancies by the
Govt. if by this process they get a service of higher choice in the order of
16(3) The Commission
may further lower the qualifying standards to take care of any shortfall of
candidates for appointment against unreserved vacancies and any surplus of
candidates against reserved vacancies arising out of the provisions of this
rule, the commission may make the recommendations in the manner prescribed in
sub-rule (4) and (5).
16 (4) While recommending
the candidates, the commission shall, in the first instance, take into account
the total number of vacancies in all categories.
7 This total number
of recommended candidates shall be reduced by the number of candidates
belonging to the SC, ST & OBCs who acquire the merit at or above the fixed
general qualifying standard without availing themselves of any concession or
relaxation in the legibility or reallocation in the eligibility or selection
criteria in terms of the provision to sub rule (1). Along with this of
recommended candidates, the commission shall also declare a consolidated
reserve list of candidates which will include candidates from general and
reserved categories ranking in order of merit below the last recommended
candidate under each category.
The number of
candidates in each of these categories will be equal to the number of reserved
category candidates who were included in the first list without availing of any
relaxation or concession eligibility or selection criteria as per proviso to
sub rule (1), among the OBC categories in the reserve list will be in each
(5) The candidates
recommended in terms of the provisions of sub rule (4), shall be allocated by
to the services and
where certain vacancies still remain to be filled up, the Govt. may forward a
requisition to the commission requiring it to recommend, in order of merit,
from the reserve list, the same number of candidates as requisitioned for the
purpose of filling up the unfilled vacancies in each category."
the Central Administrative Tribunal as well as the High Court, the main
challenge centers around Rule 16(2) of the Rules. The unamended as well as
amended Rule 16(2), are as follows:- Rule 16(2) unamended Rule 16(2) amended
The candidates belonging to any of While making service allocation, the
Scheduled Castes or Scheduled the candidates belonging to the Tribes or the
Other Backward Scheduled Castes, the Scheduled Classes may, to the extent of
the Tribes or Other Backward Classes number of vacancies reserved for
recommended against unreserved the Scheduled Castes and the vacancies may be
adjusted against Scheduled Tribes and the Other reserved vacancies by the
Backward Classes be recommended Government, if by this process, by the
Commission by a relaxed they get a service of higher choice standard, subject
to the fitness of in the order of their preference. these candidates for
selection to the services.
Provided that the
candidates belonging to the Scheduled Castes and the Scheduled Tribes and the
Other backward Classes who have been recommended by the Commission without
resorting to the relaxed standard referred to in this sub-rule shall not be
adjusted against the vacancies reserved for the Scheduled Castes and the
Scheduled Tribes and the Other Backward Classes.
questions that have to be answered are as follows:
(i) Whether reserved
category candidates i.e., OBC/SC/ST who were selected on merit and placed in
the list of general/unreserved category candidates could be considered as
reserved category candidates at the time of "service allocation"
(ii) Whether Rule
16(2) (3) (4) and (5) of the CSE Rules are inconsistent with 16(1) and
violative of Arts. 14, 16(4) and 335 of the Constitution of India.
(iii) Whether the
decision of the Central Administrative Tribunal in this case can be valid as it
relied upon following Rule 16(2) of the Civil Service Examination Rules as far
as it is conformed with the ratio of Anurag Patel vs. U.P. Public Service Commission
and Others, (2005) 9 SCC 742, which had taken reference from the judgment of
Ritesh R. Shah vs. Dr. Y.L. Yamul and Others, (1996) 3 SCC 253, which is
actually dealing with reservation in the admission for the seats in the post
graduation medical courses and whether the reservation for admission in the
educational institutions can be applied in a different scenario of considering
the Constitutionality of a Government policy with regard to reservation in
service under Union or State and if yes how far.
(iv) The five judges'
Bench of this Court has decided in the case of R.K. Sabharwal and Others vs.
State of Punjab and Others, (1995) 2 SCC 745, as follows in paragraph
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."
Now to follow this ratio, a number of questions arise in this case. Firstly,
this judgment is strictly confined to the enabling provision of Article 16(4)
of the Constitution under which the State Government has the sole power to
decide whether there is requirement for reservation for the backward class of
people in the service under the State. But the present case deals with the
posts under Government of India being selected through Union Public Service
Commission. Whether the above mentioned ratio can be strictly applicable here.
Secondly, under the proviso of Rule 16(1) of the notification which is in
question it has been provided that any candidate belonging to the SC, ST and
OBC classes who have not availed themselves of any of the concessions or
relaxations in the eligibility or the selection criteria, at any stage of the
examination and who after taking into account the general qualifying standards
are found fit for recommendation by the commission shall not be recommended
against the vacancies reserved for SC, ST and OBC which is very much in
accordance of the above judgment.
But through the
disputed Rule 16(2) the candidates belonging to the SC, ST or OBC so
recommended under Rule 16(1) against unreserved vacancies may be adjusted
against reserved vacancies by the Government and by this process they get a
higher choice in the order of their preference. Now it is to be resolved
whether the candidates who have availed themselves of the better preferences
available only for the reserved category candidates can be placed under the
merit/general category as they are availing the relaxation/concessions
available only for the reserved category people or they can be adjusted in the
reserved category list as provided under the disputed Rule. Thirdly, if they
are put in the general category along with the other general category
candidates who are not eligible for any relaxations and are appointed to the
services totally on the basis of their merit whether it will not violate the
mandate of Articles 14 and 16(1) & (2) of the Constitution as it is
providing with different scope of opportunity for the candidates placed under
the general/merit category on the basis of caste.
is also to be maintained that Government can make relaxation to a limit of
prescribed percentage of a particular reserved category in accordance with the
judgment rendered in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217.
The relevant paras
are as follows:
reservations contemplated in clause (4) of Article 16 should not exceed 50%.
810. While 50% shall
be the rule, it is necessary not to put out of consideration certain
extraordinary situations inherent in the great diversity of this country and
the people. It might happen that in farflung and remote areas the population
inhabiting those areas might, on account of their being out of the mainstream
of national life and in view of conditions peculiar to and characteristical to
them, need to be treated in a different way, some relaxation in this strict
rule may become imperative. In doing so, extreme caution is to be exercised and
a special case made out.
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
(emphasis supplied) In
the light of the above-mentioned decision whether it is reasonable not to give
better preference of posts in service for the persons of reserved category who
have been selected in the open competition field on the basis of their own
merit and even if they are given such better preference whether that should not
come under this specific percentage as it will only be a certain relaxation or
concession and not a proper form of reservation as observed in the same
judgment in paragraph 813 is as follows:
"813. It is,
however, made clear that the rule of 50% shall be applicable only to
reservations proper; they shall not be -- indeed cannot be -- applicable to
exemptions, concessions or relaxations, if any, provided to `Backward Class of
Citizens' under Article 16(4)."
the case of Union of India and Another vs. Satya Prakash and Others, (2006) 4
SCC 550, this Court dealt with the unamended Civil Service Examination Rules
prior to 2002 wherein the more meritorious candidates could not opt for a
It was held in Para
19 as under:
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
the relaxed standard."
It was thus directed
in para 20 as under:- "20. If a candidate of the Scheduled Caste, the
Scheduled Tribe and Other Backward Class, who has been recommended by the
Commission without resorting to the relaxed standard could not get his/her 15
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."
The said judgment was
rendered with a view to correct the injustice meted out to the meritorious
reserved category candidates who were recommended against posts in services
which were lower in preference than the posts in services to which the reserved
category candidates were recommended in spite of obtaining better marks and
merit. As the judgment dealt with the unamended Rule 16 whether it is
applicable to the amended Rule.
far as the amended Rule 16 is concerned the very basis of the change is given
in Rule 16(3) so as to "take care of any shortfall of candidates for
appointment against unreserved vacancies" whereby it is the intention of
the legislature to take reasonable restriction over reservation so that the
candidates of the unreserved category also get equal opportunity to represent
themselves. It is also to be noted that the reserved category candidates
selected in the merit/unreserved category upon the basis of their merit have
not availed of any relaxations which are only available for the reserved
category candidates. Whether whenever they are opting for the better preference
that is available in the reserved category they are to be considered among the
reserved category and should not be placed in the same category where the
candidates, be it of reserved or unreserved category, who have not taken any
kind of relaxation available only for the reserved category candidates have
been placed and also whether the policy of the Government can be interfered
with by when it has reasoned objective for the inclusion of the amended Rule 16
which is under dispute.
dealing with the main questions that are to be answered by the larger Bench, it
is to be kept in mind that, though, in Indra Sawhney's case (supra), more than
50% relaxation/concession has been provided with de hors proper reservation it
was also mentioned in the said judgment that the State Government is in the
best position to make policies for reservation when they are actually required
under the specific situations and circumstances of a state (in case of India as
a whole the Central Government). In the present case, the UPSC has provided the
amendment of Rule 16 which has been made to fulfill certain objective already
specified in the Rules. It is also to be cleared out whether the persons from
reserved category who are already selected in the merit category without taking
any relaxation/concession available for the reserved category candidates can
actually avail the better preference of service from the services under
reserved category list as that will be solely based upon the caste of the
candidates i.e. whether he is SC, ST or OBC as he has already been selected in
the general category on the basis of his merit only.
view of the fact that the issues raised and discussed relating to amended Rule
16 of CSE applicable to all Central Civil Services, we are of the view that an
authoritative pronouncement is needed, particularly, in the light of the
various decisions referred above, hence, all these SLPs and Writ Petitions are
referred to a Constitution Bench.
[ K.G. BALAKRISHNAN ]
[ P. SATHASIVAM ]
[ J.M. PANCHAL ]