वनांचल एक्सप्रेस ब्यूरो
इलाहाबाद उच्च न्यायालय की लखनऊ बेंच ने बुधवार को एक अहम फैसले में कहा कि यदि आरक्षित वर्ग का उम्मीदवार अनारक्षित वर्ग के उम्मीदवार से अधिक अंक लाता है तो आरक्षित वर्ग का वह उम्मीदवार किसी प्रकार की छूट लेने के बावजूद अनारक्षित वर्ग की रिक्तियों/पदों के सापेक्ष ही चयनित होगा। न्यायालय ने इस आधार पर अन्य पिछड़ा वर्ग (ओबीसी) के रोहित वर्मा, आयुष रंजन चौधरी और अन्य की याचिकाओं की सुनवाई करते हुए उत्तर प्रदेश शासन और उत्तर प्रदेश उच्चतर शिक्षा सेवा आयोग को छह सप्ताह के अंदर याचिकाकर्ताओं को अनारक्षित वर्ग में शामिल कर साक्षात्कार की प्रक्रिया सम्पन्न कराने का आदेश दिया।
न्यायमूर्ति मनीष कुमार की एकल पीठ ने दोनों पक्षों के अधिवक्ताओं को सुनने के बाद अपने फैसले में कहा, ''इसमें कोई विवाद नहीं है कि यदि आरक्षित वर्ग का उम्मीदवार अनारक्षित वर्ग के उम्मीदवार से अधिक अंक लाता है तो आरक्षित वर्ग का वह उम्मीदवार किसी प्रकार की छूट लेने के बावजूद अनारक्षित वर्ग की रिक्तियों/पदों के सापेक्ष सूचीबद्ध किया जाएगा, जैसा कि इस न्यायालय और शीर्ष अदालत के विभिन्न आदेशों में वर्णित है।"
पीठ ने अपने आदेश में यह भी लिखा है, "यह स्पष्ट है कि विधि के तहत आरक्षित वर्ग के उम्मीदवार के पास अपनी मेरिट के आधार पर दोनों वर्गों (सामान्य वर्ग और आरक्षित वर्ग) की रिक्तियों के सापेक्ष चयनित होने का अधिकार है। अनारक्षित वर्ग की रिक्तियां किसी भी व्यक्ति के लिए आरक्षित नहीं होती हैं। सामान्य वर्ग के लिए निर्धारित मेरिट सूची के न्यूनतम अंक से ज्यादा अंक हासिल करने वाला आरक्षित वर्ग का उम्मीदवार अनारक्षित वर्ग की रिक्तियों के सापेक्ष समायोजित किया जाएगा, ना कि उस आरक्षित वर्ग की रिक्तियों के सापेक्ष जिसके तहत उसने आवेदन किया है।"
पीठ ने विवादित मामले को तीन बिन्दुओं परखा। पहला, ऐसे मामले में, जहां आरक्षण का लाभ विशेष वर्गों को मुहैया कराया जाता है, क्या उम्मीदवारों की सूची वर्गवार बनाना और सामान्य, ओबीसी और एससी/एसटी नाम से उम्मीदवारों को अलग करना विधिसम्मत है? इसके जवाब में पीठ ने लिखा कि ऐसे किसी प्रावधान के तहत अथवा उसके बिना वर्गवार उम्मीदवारों की सूची बनाना विधिसम्मत है। दूसरा, क्या आरक्षित वर्ग का उम्मीदवार अपनी मेरिट की आधार पर अनारक्षित वर्ग के उम्मीदवारों की सूची में शामिल हो सकता है? इसके जवाब में पीठ ने लिखा, ''हां, सूचीबद्ध होने के बाद आरक्षित वर्ग के उम्मीदवार अनारक्षित वर्ग के उम्मीदवारों के साथ खुली भर्ती में शामिल होते हैं और उनसे ज्यादा अंक हासिल करते हैं तो वे अपनी मेरिट के आधार पर अनारक्षित वर्ग की रिक्तियों पर चयनित होंगे। अगर आवश्यक हुआ तो उम्मीदवारों का अनुपात रेगुलेशन-2014 के रेगुलेशन-6(2) में उपलब्ध व्यवस्था के तहत रिक्तियों की संख्या के सापेक्ष और अधिक बढ़ाया जा सकता है।"
तीसरा, भर्ती प्रक्रिया के किस स्तर पर रेगुलेशन-2014 में उल्लेखित प्रावधानों के तहत मेरिट के आधार पर साक्षात्कार के लिए बुलाए जाने वाले उम्मीदवारों की सूची विशेष तौर पर तैयार करना है? जवाब में पीठ ने लिखा है, "साक्षात्कार के पूर्व उच्च अंक प्राप्तआरक्षित वर्ग के उम्मीदवार को निकालना चयन प्रक्रिया के पूर्ण होने के पहले उम्मीदवार को अंतिम रूप से खारिज करना है। रेगुलेशन-2014 को किसी अधिनियम या संविधान के प्रावधान के उल्लंघन के तौर पर नहीं देखा जा सकता है। रेगुलेशन-2014, 1994 के यूपी एक्ट नं.-4 की धारा-3(6) और भारतीय संविधान के अनुच्छेद-14 एवं 16 को आपसी सामंजस्य के रूम में देखना पड़ता है। स्थिति यह है कि आरक्षित वर्ग के उम्मीदवार को भविष्य में चयन से प्रतिबंधित नहीं किया जा सकता है, यदि वह साक्षात्कार में बुलाए जाने वाले अनारक्षित वर्ग के उम्मीदवार के लिए निर्धारित कट-ऑफ मार्क्स से ज्यादा मार्क्स हासिल किया है।
गौरतलब है कि उत्तर प्रदेश उच्चतर सेवा आयोग ने सूबे के राजकीय एवं वित्तपोषित महाविद्यालयों में विभिन्न विषयों के असिस्टेंट प्रोफेसर की भर्ती के लिए विज्ञापन निकालकर आवेदन मांगा था। चयन प्रक्रिया के तहत दो चरण थे। लिखित परीक्षा एवं साक्षात्कार। लिखित परीक्षा के चयन के बाद आयोग ने पिछले साल 24 जून को अधिसूचना संख्या-47 जारी किया। इसके तहत उसने 33 विषयों में असिस्टेंट प्रोफेसर के पद के लिए आवेदन मांगे। इसमें समाज शास्त्र के 273 पद भी शामिल थे जिन्हें तीन वर्गों में विभाजित किया गया था। अनारक्षित वर्ग के लिए 167 पद निर्धारित किए गए थे जबकि ओबीसी के लिए 63 और एससी-एसटी के लिए 43 पद निर्धारित थे।
अनारक्षित वर्ग के 167 पदों पर कुल 838 उम्मीदवारों को साक्षात्कार के लिए बुलाया गया था। इनका लिखित परीक्षा में न्यूनतम कटऑफ मार्क्स 103.33 निर्धारित किया गया। ओबीसी के 63 पदों के सापेक्ष 385 उम्मीदवारों को बुलाया गया था जिनका न्यूनतम कटऑफ मार्क्स 133.34 निर्धारित किया गया। एससी-एसटी वर्ग के 43 पदों के सापेक्ष 217 उम्मीदवारों को साक्षात्कार के लिए बुलाया गया जिनका न्यूनतम कटऑफ मार्क्स 112.36 निर्धारित किया गया। उम्मीदवारों को प्रत्येक वर्ग में 1:5 के अनुपात में बुलाया गया था।
उच्च न्यायालय में याचिका दाखिल करने वाले ओबीसी के रोहित वर्मा, आयुष रंजन चौधरी और अन्य का नाम तीनों वर्गों में चयनित उम्मीदवारों में नहीं था जबकि वे अनारक्षित वर्ग के उम्मीदवारों के लिए निर्धारित न्यूनतम कट ऑफ मार्क्स 103.37 से कहीं ज्यादा था। आयोग द्वारा आयोजित लिखित परीक्षा में रोहित वर्मा ने 125.84 अंक हासिल किया था जबकि आयुष रंजन चौधरी और एक अन्य ने क्रमशः 125.44 और 116.48 अंक प्राप्त किया था। आयोग के फैसले से नाराज इन उम्मीदवारों ने उच्च न्यायालय इलाहाबाद की लखनऊ बेंच में अधिवक्ता गिरीश चंद्र वर्मा, अरुण कुमार वर्मा और करुणाकर श्रीवास्तव के माध्यम से याचिका दाखिल की। इसकी सुनवाई करते हुए न्यायमूर्ति मनीष कुमार ने बुधवार को इनके पक्ष में फैसला सुनाया।
न्यायमूर्ति मनीष कुमार ने फैसले में लिखा है कि पूरी चयन प्रक्रिया को रद्द करने की जरूरत नहीं है क्योंकि ऐसी कोई याचना नहीं की गई है। चयन प्रक्रिया को प्रभावित किए बिना न्यायालय आए याचिकाकर्ताओं को राहत दी जा सकती है। उन्होंने आदेश में लिखा है, "याचिकाकर्ताओं को रुकी हुई चयन प्रक्रिया को रद्द किए बिना राहत दी जा सकती है। इसलिए यह निर्देशित किया जाता है कि साक्षात्कार के लिए बुलाए गए अनारक्षित वर्ग के अंतिम उम्मीदवार से अधिक अंक प्राप्त करने वाले याचिकाकर्ताओं, जो न्यायालय आए हैं, को अनारक्षित वर्ग की रिक्त सीटों के सापेक्ष होने वाले साक्षात्कार की चयन प्रक्रिया में शामिल किया जाएगा। किसी भी प्रकार की देरी से बचने के लिए प्रतिवादी संख्या-2 एवं 3 को आदेश की प्रमाणित प्रति मिलने की तिथि से छह सप्ताह के अंदर जल्द से जल्द चयन प्रक्रिया को पूर्ण करने के लिए भी निर्देश दिया जाता है।"
बता दें उत्तर प्रदेश उच्चतर शिक्षा सेवा आयोग की ओर से आयोजित 32 विषयों के असिस्टेंट प्रोफेसर का चयन इसी प्रक्रिया के तहत किया गया है। समाज शास्त्र को छोड़कर सफल उम्मीदवारों के पक्ष में नियुक्ति पत्र जारी कर दिया गया है।
वहीं, उत्तर प्रदेश उच्चतर शिक्षा सेवा आयोग की आरक्षण विरोधी नीतियों के खिलाफ आंदोलन करने वाले राष्ट्रीय विद्यार्थी चेतना परिषद के संयोजक मनोज यादव ने उच्च न्यायालय के फैसले को छात्रों और बेरोजगारों के आंदोलन की जीत बताया। उन्होंने इस भर्ती प्रक्रिया में शामिल उम्मीदवारों से आयोग के फैसले को न्यायालय में चुनौती देने की अपील की है। उनका दावा है कि उच्च न्यायालय जाने वाले रोहित वर्मा, आयुष रंजन चौधरी और डॉ. विरेंद्र उनके संगठन से जुड़े हैं। उन लोगों ने ही उन्हें न्यायालय जाने के लिए प्रेरित किया था।
इलाहाबाद स्थित उच्च न्यायालय के लखनऊ बेंच में कार्यरत न्यायमूर्ति मनीष कुमार की एकल पीठ के आदेश को नीचे पढ़ सकते हैं... (आदेश की PDF प्रति प्राप्त करने के लिए यहां CLICK पर क्लिक करें)
ये भी पढ़ें-
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved Judgment
Court No. - 30
Case :- SERVICE SINGLE No. - 20476 of 2019
Petitioner :- Rohit Verma
Respondent :- State Of U.P.Thru Addl.Chief Secy. Higher Edu.Lukcnow & Ors.
Counsel for Petitioner :- Girish Chandra Verma
Counsel for Respondent :- C.S.C.,Anuj Kudesia,Ashwani Kumar Agnihotri,Gaurav Mehrotra,Utsav Mishra,Vinod Kumar Singh
And
Case :- SERVICE SINGLE No. - 19881 of 2019
Petitioner :- Ayush Ranjan Chaudhary And Anr.
Respondent :- State Of U.P Thru Prin.Secy. Higher Education And Ors.
Counsel for Petitioner :- Karunakar Srivastava,Arun Kumar Verma
Counsel for Respondent :- C.S.C.,Anshumali Srivastava,Ashwani Kumar Agnihotri,Gaurav Mehrotra,Manish Misra,Satendra Tripathi,Utsav Mishra,Vinod Kumar Singh
Hon'ble Manish Kumar,J.
1. The controversy involved in both the aforesaid writ petitions is similar in nature,therefore, the same is decided by a common judgment.
2. Under challenge in the writ petitions i.e. Writ Petition No. 20476 (S/S) of 2019, Rohit Verma Versus State of U.P. and Others and Writ Petition No. 19881 (S/S) of 2019, Ayush Ranjan Chaudhary and Another Versus State of U.P. and Others, is the notification no. 47 dated 24-06-2019 issued by the U.P. Higher Education Services Commission, Allahabad (hereinafter referred as 'Commission' in short). By the said notification the Commission has called the candidates for interview in the ratio of 1:5 under three categories i.e. General, OBC and SC/ST as per the cut off marks determined categorywise as obtained in the written examination.
3. The petitioners belong to Other Backward Class category i.e. OBC and cut off marks determined for the OBC category candidates called for interview is 130.34 whereas for the general category candidates, the cut off marks is 103.37.
4. The petitioner in Writ Petition No. 20476(S/S) of 2019, has secured 125.84 marks whereas the petitioners in Writ Petition No. 19881(S/S) of 2019 have secured 125.44 and 116.48 marks respectively in the written examination.
5. The brief facts of the case are that notification no. 47 was issued by the Commission inviting applications for selection on the post of Assistant Professor in 33 subjects including 273 posts in Sociology bifurcating in three categories i.e. 167 posts for unreserved category, 63 posts for OBC category and 43 posts for SC & ST category, which is the subject matter of the present writ petitions.
6. Against 167 vacancies of unreserved category, 838 candidates were called for interview and the last candidate called has scored 103.33 marks in the written examination. Against 63 vacancies for OBC Category, 385 candidates were called and the last candidate has scored 133.34 marks. Under the SC/ST category, 217 candidates were called for interview against 43 vacancies and the last candidate has scored 112.36 marks. The candidates were called in ratio of 1 :5 in each category.
7. The selection has two stages, viz the written examination and thereafter interview. According to Regulation 6(2) of the U.P. Higher Education Services Commission(Procedure for Selection of Teachers) Regulations, 2014(In short referred as 'Regulations, 2014'), candidates have been called for interview in the ratio of 1:5 by determining the cut of marks categorywise i.e. General, OBC and SC/ST. The petitioners of both the writ petitions were not called for interview in any of the categories for the reason that they have not fallen within the cut off marks fixed for the OBC category candidates.
8. The grievance of the petitioners is that the last candidate belonging to general category, who has obtained 103.37 marks has been called for interview, who is lower in merit.
9. Sri G.C.Verma and Sri Karunakar Srivastava, learned counsel for the petitioners have submitted that by not calling the petitioners for the interview, though, they have scored higher marks than the general category candidates, the Commission acted in contravention of Section 3(6) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred as the U.P. Act No. 4 of Act of 1994). Sections 3(1) and 3(6) of the said Act provide as under :-
"Section 3 (1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentages of vacancies to which recruitment are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens.-
(a) in the case of Scheduled Castes twenty one percent :
(b) in the case of Scheduled Tribes two percent :
(c) in the case of Other Backward Classes of citizens twenty seven per cent :
Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Scheduled II."
"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)."
10. In support of abovementioned contention, learned counsel for the petitioners have relied upon the Division Bench Judgment of this court dated 19-05-2015 passed in Special Appeal No. 310 of 2015(U.P. Power Corporation Ltd. And Another Versus Nitin Kumar and 9 Others), which has been followed in Writ A No. 68706 of 2015 (Lalit Kumar Versus State of U.P. and Another).
11. Submission of learned counsels for the petitioners is that case of the present petitioners is squarely covered by the Judgment of this court in the case of Lalit Kumar (Supra) and U.P. Power Corporation Ltd.(Supra).
12. Learned counsels have further submitted that the State Government has issued a Government Order dated 25-03-1994. Para 4 of the said Government Order provides that if any candidate belonging to reserved category is selected with the general category candidates in an open selection, then he/she shall not be adjusted against the vacancies reserved for reserved category candidates, meaning thereby, such reserved category candidate shall be treated to be migrated against the unreserved vacancy though the reserved category candidates appeared in the selection after taking benefit of relaxation admissible to the candidates belonging to reserved category. Para 4 of the Government Order dated 25-03-1994 reads as follows :-
ß¼4½ ;fn vkjf{kr Js.kh ls lEcfU/kr dksbZ O;fDr ;ksX;rk ds vk/kkj ij [kqyh izfr;ksfxrk esa lkekU; vH;fFkZ;ksa ds lkFk p;fur gksrk gS rks mls vkjf{kr fjfDr;ksa ds izfr lek;ksftr ugha fd;k tk;sxk vFkkZr~ mls vukjf{kr fjfDr;ksa ds izfr lek;ksftr ekuk tk;sxk] Hkys gh mlus vkjf{kr oxZ ds vH;fFkZ;ksa dks vuqeU; fdlh lqfo/kk ;k NwV ¼;Fkk vk;q lhek esa NwV vkfn½ dk miHkksx fd;k gksAÞ
13. Learned counsel for the petitioners have further contended that on 30-01-2015, another order has been issued by the state government for strict compliance of provisions of Section 3(6) of U.P. Act No. 4 of 1994. In support of their submissions, they have also placed reliance on the Judgment of the Apex Court in the case of Jitendra Kumar Singh and Another Versus State of U.P. and Others, reported in 2010(3) SCC,119. In this case, the issue before the Apex Court were with regard to filling up of the general category posts by the candidates belonging to reserved category on their obtaining more marks than the last candidate in the general category. The Apex Court held that the submission of learned counsels for the petitioners/appellants is not accepted that the reserved category candidate having availed relaxation of age are disqualified for open category seat.
14. Another Judgment of the Apex Court, which has been relied upon by learned counsels for the petitioners is Ajith Kumar & Others Vs Renu Kr. and Others, reported in 2015 (16) SCC,778. In this case, the Apex Court held that once a candidate appears in the examination pursuant to a concession granted by the Service Commission, cannot be treated as less meritorious candidate who are entitled to be appointed to open category post even though having obtained higher marks. The Apex Court held that a relaxation or concession given at the preliminary stage, cannot have any relevance in determining the merit of the candidate.
15. The other Judgment of the Apex court, on which the learned counsels for the petitioners have placed reliance is Vikas Sankhala Versus Vikas Kumar Agarwal and Others, reported in (2017)1 SCC 350. In this case also, relaxation of 5% marks was made in favour of the reserved category candidates for passing TET test by the NCTE. The same issue had again cropped up that once concession has been taken, that candidate shall not be at par with the general category candidates. The Court framed three issues, which are quoted below :-
i. Whether the policy of the State as reflected in its letter dated March 23, 2011 deciding to give relaxation ranging from 10% to 20% in TET marks to different reserved categories as mentioned therein is valid in law?
ii. Whether NCTE notification dated July 29, 2011, which amends paragraph 3 of its earlier guidelines/notification dated February 11,2011, provides 5% relaxation to the reserved category to passing TET?
If so, whether it would be applicable to the reserved categories in the State of Rajasthan as well?
iii. Whether reserved category candidates, who secured better than general category candidates in recruitment examination, can be denied migration to general seats on the basis that they had availed relaxation in TET?
Learned counsels for the petitioners have relied upon the answer to Issue No. 3 which has been dealt with in Para 63(B) of the Judgment, which is quoted hereinbelow :-
63(b) Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category.
16. Similar issue has been dealt with by the Apex Court by its Judgment dated 04-07-2019 passed in Civil Appeal No. 5185 of 2019(Arising out of S.L.P.(Civil) No. 3938 of 2018, Neeravkumar Dilipbhai Makwana Vs. Gujrat Public Service Commission and Others, whether a reserved category candidate, who has availed of age relaxation can thereafter seek to be accommodated in or migrated to the general category seat, the Apex Court replied in affirmative in favour of reserved category candidate.
17. Sri Vivek Shukla, learned counsel for the opposite parties no. 2 & 3 i.e. Uttar Pradesh Higher Education Service Commission, on the other hand, has vehemently opposed the submissions made on behalf of the petitioners. He has submitted that Section 3(6) of U.P. Act No. 4 of 1994 provides for "get selected on the basis of merit in an open competition". In the present case, the selection has yet not been completed. The selection would be completed only after the interview and hence, any migration from the reserved seat to unreserved seat is permissible only after completion of the selection but in the intermediate stage, migration is not permitted.
18. Learned counsel for the opposite parties no. 2 & 3 has further relied upon Regulation 6(2) of the Regulations 2014, which is quoted as under :-
"6. The commission shall scrutinize the applications and conduct the written examination and interview of eligible for the post of lecturer and principal.
i. Written examination for the post of lecturer shall consist one objective type question papers (General Knowledge and related optional subjects of fix marks- 2000 (60+140) and for interview 30 marks. Final merit list shall be prepare on the basis of marks obtained on both) (200+30).
ii. Selection for the post of Principal based on a written examination. Academic Performance Indicator (API) marks and interview. Written examination consist one objective question paper comprising General Knowledge and administrative aptitude test of fix marks (30+70) 100 marks. For API 50 marks which shall be allotted by the Commission's guideline based on U.G.C. norms. For Interview fixed 20 marks.
(2) The number of candidates to be called for interview as for as possible, be between three to five, the vacancies advertise as the Commission may consider proper. All within cut off marks shall be called for interview."
19. According to the learned counsel for the respondents, the candidates have been called for interview as per the statutory provisions in the ratio of 1:5 by determining cut off marks categorywise i.e. General, OBC and SC/ST.
20. Learned counsel for the opposite parties no. 2 & 3 has further relied upon the definition of selection as provided in Regulation 2(m) which is quoted below :-
2(m) "Selection" means selection of candidate finally after written examinations and interview, in pursuance of Advertisement already made." He has also placed reliance on Regulation 6 of the Regulations,2014, where it has been provided that "Final result declared to the marks of written examination and interview."
21. Learned counsel for the respondents has drawn attention of this court to the Press Release made by the Commission on 17-07-2019, which is quoted below :-
Þ;g Hkh Li"V djuk gS fd fyf[kr ijh{kk lEiw.kZ p;u izfdz;k dh ,d chp dh dM+h gS ftlesa vH;fFkZ;ksa dks ek= lk{kkRdkj gsrq vkeaf=r fd;k x;k gSA /;krO; gS fd fyf[kr ijh{kk dk ifj.kke p;u ugha gksrk gS] vk;ksx }kjk fyf[kr ijh{kk esa izkIr vadksa ds vk/kkj ij fofu;ekoyh&2014 ds fcUnq&6¼2½ lk{kkRdkj ds i'pkr~ lQy vH;fFkZ;ksa ds ¼fyf[kr ijh{kk $ lk{kkRdkj½ izkIr vadksa dh lesfdr esfjV lwph ds vk/kkj ij mRRkj izns'k yksd lsok ¼vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ds fy, vkj{k.k½ vf/kfu;e&1994 ds fcUnq&3¼6½ ds rgr vU; fiNM+k oxZ] vuqlwfpr tkfr ,oa vuqlwfpr tutkfr ds vH;FkhZ vukjf{kr (Unreserved) lkekU; Js.kh esa p;fur fd;s tk ldsaxsAß
22. The learned counsel has further relied upon an office memorandum which has been issued by the U.P. Public Service Commission on 09-12-2019,wherein it has not been provided that if any candidate has taken benefit of any qualified standard, then that candidate is entitled for migration/adjustment in the open category at the stage of final selection. Copy of the said Office Memorandum has been enclosed with the written submissions filed on behalf of the opposite parties no. 2 & 3.
23. The learned counsel for the respondents has placed reliance on para 52 of the Judgment in the case of Sanjeev Kumar Singh Versus State of U.P. and Others, reported in 2007(2) ADJ 150, wherein it has been held that ex-facie and undoubtedly, at the time of final select list, Section 3(6) of Act of 1994 would be applicable and if a reserve category candidate has secured marks more than a last general category candidate, he is entitled to be selected against unresreved seat without being adjusted against a reserved seat. Even, the said judgment is not of any help to the opposite parties no. 2 & 3, the reason being that in the same paragraph, it has been provided that all the candidates securing 50% marks and more in the preliminary qualifying written test participated in the physical test irrespective of the number of candidates qualifying against individual category. The standard of selection is common to all, whereas in the present writ petitions, the petitioners have been debarred from interview despite the fact that they have secured more marks in the written test than the candidates who were called for the interview belonging to unreserved category.
24. Learned counsel has further submitted that the method of shortlisting can validly be adopted by the selection body even in the absence of any rule or regulation and in support of his contention, he has also relied upon the Judgment of the Apex Court in the case of B.Ramakichenin Vs Union of India, reported in 2008(1)SCC,362. For convenience, para nos. 15,16 & 17 of the said Judgment are quoted below:-
"15. It is well settled that the method of short- listing can be validly adopted by the Selection Body vide Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar and another 1994 (6) SCC 293 (vide paras 6, 8, 9 and 13), Government of Andhra Pradesh vs. Dilip Kumar and another 1993 (2) SCC 30, etc.
16. Even if there is no rule providing for short- listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. for example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short-listing can be resorted to by the Selection Body, even though there is no mention of short-listing in the rules or in the advertisement.
17. However, for valid short-listing there have to be two requirements
(i) It has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a B.Sc. degree, and if there are a large number of eligible applicants, the Selection Body can resort to short-listing by prescribing certain minimum marks in B.Sc. and only those who have got such marks may be called for the interview. this can be done even if the rule or advertisement doe not mention only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of short-listing is only a practical via- media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing as they may not be able to interview hundreds and thousands of eligible candidates;
(ii) If a prescribed method of short-listing has been mentioned in the rule or advertisement then that method alone has to be followed."
25. Learned counsel for the respondents has submitted that the selection is as per Regulations, 2014. The petitioners have neither challenged the relevant provisions of Regulations,2014 nor the Office Memorandum issued by the Commission. He has further contended that the the Judgments relied upon by the learned counsel for the petitioners are not applicable in the present case for the reason that the Judgment in the case of U.P. Power Corporation Ltd.(Supra), there was no Regulation, whereas in the present case, the Regulations are in existence providing the procedure and defining the selection.
26. As far as the other Judgment in the case of Government of Andhra Pradesh Versus P.Dilip Kumar and Another, reported in 1993(2)SCC310, is also not applicable,since the provisions are different.
27. On the other hand, learned counsel namely Sri Anuj Kudesia, Sri Gaurav Mehrotra and Sri Satendra Tripathi, who have moved impleadment applications on behalf of the unreserved category candidates, their impleadment applications have already been allowed by this court by its order dated 02-06-2020 have submitted that the petitioners have not approached this court with clean hands by making concealment in not disclosing that they have appeared in the examination by taking relaxation of 5% marks in post graduation as admissible to OBC category candidates. Sri Anuj Kudesia, Advocate, with the affidavit has also enclosed the copy of the form of Sri Rohit Verma, showing that he has scored 50% marks in Post Graduate and by taking advantage of relaxation of 5% marks, he became eligible to participate in the selection, since eligibility is 55% marks in the post graduation. It has further been contended that the petitioners have participated in the selection as an OBC Category candidates by taking relaxation and hence, cannot be treated at par with the candidates belonging to unreserved category.
28. Sri Anuj Kudesia, learned counsel has relied upon the Judgment of the Apex Court in the case of Deepa EV Versus Union of India & Ors, reported in [2017(12)SCC,680 and the Judgment dated 04-12-2019 passed by the Apex Court in the case of The Secretary, U.P. Public Service Commission Versus Dr. Shiv Vinayak Tripathi and Another.
29. Learned counsel after arguing at some length, have failed to dispute the law laid down in the case of Jitendra Kumar Singh (Supra) and very fairly accepted that in the present case, Judgment in the case of Jitendra Kumar Singh(Supra) is applicable.
30. Sri Anuj Kudesia, learned counsel has further contended that the petitioners on the basis of assumption disclosed their marks in the writ petitions and there is no official declaration of the result of the written examination by the Selection Service Commission but it is found that the marks said to be obtained by the petitioner were not disputed in the Counter Affidavit filed on behalf of opposite parties no. 2 & 3.
31. Sri Karunakar Srivastava, learned counsel for the petitioners in Writ Petition No. 19881 (S/S) of 2019, has filed a Supplementary Affidavit disclosing therein that the petitioners in his writ petition have scored more than 55% marks in post graduation and in support of his contentions, he has enclosed copy of the form. On being asked learned counsel representing the opposite parties no. 2 & 3 (U.P. Higher Education Service Commission), as to whether they want to file any objection/reply, the learned counsel representing the Commission has stated that no reply is required and the documents are on record.
32. After hearing learned counsels for the parties, it is found that it is not disputed that if a candidate belonging to reserved category scores higher marks than a candidate belonging to unreserved category, then the reserved category candidate would be migrated against the seats/posts of unreserved category irrespective of having taken any concession, as laid down in various Judgments of this court as well as of the Apex Court. To adjudicate the controversy in the present writ petition, the following questions crop up for consideration :-
(I) In a case, where the benefit of reservation is provided to certain categories, will it be permissible to shortlist the candidates categorywise and prepare a separate lists of each category of candidates, namely General, OBC and SC/ST.
(II) Can a candidate in the reserved category be migrated to the list of candidates of unreserved category on the basis of his merit ?
(III) At what stage of the process of recruitment, list of candidates on merits, so as to be called for interview is to be prepared particularly in reference to the provisions contained in Regulations,2014 ?.
33. It has been held by the Apex Court in the case of Jitendra Kumar (Supra) that the competition would start only at a stage when all the persons who fulfill all the requisite eligibility qualification,age etc. are shortlisted. Relevant extract of the said Judgment is quoted below :-
"17. .........However, after the promulgation of the 1994 Act and issuance of the Instructions dated 25th of March, 1994, the State Government has not treated relaxation in age and fee as relaxation in the standard of selection. Therefore, even if a candidate has availed concession in fee and or age limit, it cannot be treated to be relaxation in standard of selection. Therefore, it would not deny a reserved category candidate selection in Open Competition with General Category candidates. Such concessions can be granted by the State under Section (8)1 of the Act. The Division Bench has also held that a relaxation in age and concession in fee are provisions pertaining to eligibility of a candidate to find out as to whether he can appear in a competitive test or not and by itself do not provide any indicia of open competition. The competition would start only at a stage when all the persons who fulfill all the requisite eligibility qualification, age etc. are short listed. The candidates in the zone of consideration entering the list on the basis of aforesaid qualifications would thereafter participate in competition and open competition would commence therefrom. Therefore, concession granted under Section 8 would not disentitle a reserved category candidate of the benefit under Section 3 sub-Section (6)."
"49. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgment as noticed above. In these matters, we are concerned with the interpretation f the 1994 Act, the instructions dated 25.03.1994 and the GO dated 26.02.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus, becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category."
34. It is also clear that under the law a reserved category candidate has right to be considered against both the vacancies i.e. vacancies available for general category candidates depending upon his merit and the reserved category candidates. The vacancies under the unreserved category are not reserved for anyone. A candidate belonging to the reserved category who has scored higher marks than the last in the merit list of general category, would be adjusted against the unreserved vacancy and not against the reserved vacancy, against which he has applied.
35. If the submissions made on behalf of the opposite parties no. 2 & 3 are accepted then at the intermediate stage, the reserved candidate though having scored higher marks in the written examination cannot be migrated to the unreserved category candidates, who have scored lesser marks, it would then lead to illegality and discrimination for the reasons that firstly; the merit will be compromised whereas it is the very basis of selection, secondly;, by eliminating the reserved category candidate with higher marks at the intermediate stage itself namely, prior to interview amounts to final rejection of the candidature before completion of process of selection, thirdly; if the migration from reserved to unreserved category is not permitted at the intermediate stage i.e at the interview stage, then how the categorization has been made at the intermediate stage fourthly; if contention of learned counsel representing the opposite parties no. 2 & 3 is accepted, then very purpose of the legislation of Act No. 4 of 1994 particularly, Section 3(6) would be frustrated and would become redundant.
36. The contention made on behalf of opposite parties no. 2 & 3 is that the selection is proceeded as per Regulation 6(2), which provides that number of candidates to be called for interview would be 3 to 5 times of the vacancies advertised, as stated in the Counter Affidavit, is also not acceptable for the reason that Regulation 6(2) says that "as for as possible", meaning thereby, the ratio could be more than five times if the situation may so demand.
37. Regulation 6(2) is flexible and procedural in nature, which cannot impinge upon substantial rights provided statutorily i.e. U.P. Act No. 4 of 1994 and constitutionally. Again Regulation 6(2) does not put any limitation as stated in the Counter Affidavit as a reason not extending the zone of consideration and try to justify their arguments.
38. Contention of learned counsel for the opposite parties no. 2 & 3 is that for limitation of extending the zone of consideration by increasing the ratio is also against the law laid down by the Apex court. In support of their contention for shortlisting, relied upon a decision which rather held otherwise in the case of Dr. Shiv Vinayak Tripathi (Supra). The facts of the case were that in order to shortlist the candidates, the screening test was conducted by the appellants in terms of the resolution and the ratio of 1:3 was applied, for the next stage of selection process which was in intermediate stage. The Selection Service Commission had increased the ratio from 1: 3 to 1: 12 as for as the OBC candidates are concerned for calling the OBC category candidates obtaining the equal marks belonging to general category candidates. The said action was challenged and controversy had reached upto the Apex Court. The Apex Court held that there is no illegality or invalidity in such exercise of power by the Commission for the reason that as per the well settled law that a person belonging to reserved category, entitled to be considered against the unreserved post, such person has to be firstly absorbed against the post of unreserved category.
The reliance placed upon press release dated 09/02/2019 has no value, whatsoever, so as to deserve consideration. On the face of it, it is contrary to statutory provisions under section 3(6) of 1994 Act. Again it has been issued after first part of selection has already been taken place. It cannot have any retrospective effect after the selection has started and completed in parts. This press release does not help the respondents.
39. Judgment in the case of Deepa EV(Supra) relied upon by learned counsel, Sri Anuj Kudesia and Sri Gaurav Mehrotra is not applicable in the present case though the issue is same as mentioned in para 4 of the said Judgment, which reads as follows :-
"4. The appellant, who has applied under OBC category by availing age relaxation and also attending the interview under the "OBC category" cannot claim right to be appointed under the General category."
The Apex Court in para 8 of the said Judgment held as under :-
"8. The learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh v. State of U.P., which deals with the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Government Order dated 25.03.1994. On a perusal of the above judgment, we find that there is no express bar in the said U.P. Act for the candidates of SC/ST/OBC being considered for the posts under general category. in such facts and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate a level playing field. In the light of the express bar provided under the proceedings dated 01.07.1998 the principle laid down in Jitendra Kumar Singh cannot be applied to the case in hand."
In these circumstances, the Judgment in the case of Deepa EV(Supra) does not support the contention of learned counsels rather it cuts against their own argument.
40. Contention of learned counsel representing the opposite parties no. 2 & 3 that the Judgment in the case of U.P. Power Corporation Ltd. (Supra), is not applicable for the reason that the U.P. Power Corporation Ltd. has no Regulations like Regulations, 2014. The said contention is not acceptable, since it is wholly immaterial whether such Regulation exits or does not exist particularly in view of provisions u/s 3(6) of 1994 Act and the principle of equality in the matter of selection on merit.
41. Judgment of Division Bench of this court in the case of U.P. Power Corporation Ltd. (Supra)has been followed by this court in the case of Lalit Kumar (Supra).
42. In view of the discussions held above, the questions as framed are replied accordingly as follows :-
(1) Shortlisting of the candidates categorywise is permissible with or without any such provision.
(2) Yes, the candidates after short listing, participated in the open selection alongwith the candidates belonging to unreserved category if scored higher marks then they shall be migrated to the unreserved category vacancies according to the merit and if necessary the ratio of candidates can be increased against the number of vacancies more particularly in view of flexibility provided in Regulation 6(2) of Regulation 2014 or even otherwise.
(3) By eliminating the reserved category candidate with higher marks at the intermediate stage itself namely, prior to interview amounts to final rejection of the candidature before completion of process of selection. Regulations 2014 cannot be read in contravention of provision of an Act and the Constitution. A harmonious construction has to be made reading the provisions of Regulations,2014, Section 3(6)of U.P. Act No. 4 of 1994 and Articles 14 and 16 of the Constitution of India. The position that emerges out is that a reserved category candidate shall not be debarred from further selection if the candidate has scored higher marks than cut off marks fixed for the candidates belonging to unreserved category called for the interview.
43. At later stage, learned counsels representing the private respondents have relied upon the Judgment and order dated 10-11-2016 passed by this court in Writ Petition No. 6083 (S/S) of 2016, Sachhida Nand Mishra Versus State of U.P. and Others, to say that in such a circumstances whole selection need not be quashed and relief may be confined to the petitioners of this case who have approached this court. As a mater of fact no such plea has been raised to quash the whole selection in the present proceedings. The petitioners in the two writ petitions in question can well be granted relief confined to them without disturbing the whole process of selection which question was not raised by any party nor any such relief is sought.
44. It has also been informed by learned counsel representing all the parties that in all other 32 subjects, the selection has been made by following the same procedure and appointment orders have also been issued in favour of the successful candidates except for the Sociology Subject.
45. Since, the petitioners can be granted relief without quashing the selection process held so far, it is hereby directed that the petitioners having higher marks than the last candidate of unreserved category called for the interview, the petitioners, since have approached the court, shall be allowed in the further process of selection, against the unreserved seats, namely in the interview. To avoid any further delay, a direction is also issued to opposite parties no. 2 & 3 to complete the process as early as possible say within a period of six weeks from the date a certified copy of this order is served.
46. With the directions made hereinabove , both the writ petitions are hereby allowed.
47. No order as to costs.
48. Let a copy of this order be placed on the record of Writ Petition 19881 (S/S) of 2019.
Order Date :- 17.6.2020
AKS/VKS
AFR
Reserved Judgment
Court No. - 30
Case :- SERVICE SINGLE No. - 20476 of 2019
Petitioner :- Rohit Verma
Respondent :- State Of U.P.Thru Addl.Chief Secy. Higher Edu.Lukcnow & Ors.
Counsel for Petitioner :- Girish Chandra Verma
Counsel for Respondent :- C.S.C.,Anuj Kudesia,Ashwani Kumar Agnihotri,Gaurav Mehrotra,Utsav Mishra,Vinod Kumar Singh
And
Case :- SERVICE SINGLE No. - 19881 of 2019
Petitioner :- Ayush Ranjan Chaudhary And Anr.
Respondent :- State Of U.P Thru Prin.Secy. Higher Education And Ors.
Counsel for Petitioner :- Karunakar Srivastava,Arun Kumar Verma
Counsel for Respondent :- C.S.C.,Anshumali Srivastava,Ashwani Kumar Agnihotri,Gaurav Mehrotra,Manish Misra,Satendra Tripathi,Utsav Mishra,Vinod Kumar Singh
Hon'ble Manish Kumar,J.
1. The controversy involved in both the aforesaid writ petitions is similar in nature,therefore, the same is decided by a common judgment.
2. Under challenge in the writ petitions i.e. Writ Petition No. 20476 (S/S) of 2019, Rohit Verma Versus State of U.P. and Others and Writ Petition No. 19881 (S/S) of 2019, Ayush Ranjan Chaudhary and Another Versus State of U.P. and Others, is the notification no. 47 dated 24-06-2019 issued by the U.P. Higher Education Services Commission, Allahabad (hereinafter referred as 'Commission' in short). By the said notification the Commission has called the candidates for interview in the ratio of 1:5 under three categories i.e. General, OBC and SC/ST as per the cut off marks determined categorywise as obtained in the written examination.
3. The petitioners belong to Other Backward Class category i.e. OBC and cut off marks determined for the OBC category candidates called for interview is 130.34 whereas for the general category candidates, the cut off marks is 103.37.
4. The petitioner in Writ Petition No. 20476(S/S) of 2019, has secured 125.84 marks whereas the petitioners in Writ Petition No. 19881(S/S) of 2019 have secured 125.44 and 116.48 marks respectively in the written examination.
5. The brief facts of the case are that notification no. 47 was issued by the Commission inviting applications for selection on the post of Assistant Professor in 33 subjects including 273 posts in Sociology bifurcating in three categories i.e. 167 posts for unreserved category, 63 posts for OBC category and 43 posts for SC & ST category, which is the subject matter of the present writ petitions.
6. Against 167 vacancies of unreserved category, 838 candidates were called for interview and the last candidate called has scored 103.33 marks in the written examination. Against 63 vacancies for OBC Category, 385 candidates were called and the last candidate has scored 133.34 marks. Under the SC/ST category, 217 candidates were called for interview against 43 vacancies and the last candidate has scored 112.36 marks. The candidates were called in ratio of 1 :5 in each category.
7. The selection has two stages, viz the written examination and thereafter interview. According to Regulation 6(2) of the U.P. Higher Education Services Commission(Procedure for Selection of Teachers) Regulations, 2014(In short referred as 'Regulations, 2014'), candidates have been called for interview in the ratio of 1:5 by determining the cut of marks categorywise i.e. General, OBC and SC/ST. The petitioners of both the writ petitions were not called for interview in any of the categories for the reason that they have not fallen within the cut off marks fixed for the OBC category candidates.
8. The grievance of the petitioners is that the last candidate belonging to general category, who has obtained 103.37 marks has been called for interview, who is lower in merit.
9. Sri G.C.Verma and Sri Karunakar Srivastava, learned counsel for the petitioners have submitted that by not calling the petitioners for the interview, though, they have scored higher marks than the general category candidates, the Commission acted in contravention of Section 3(6) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred as the U.P. Act No. 4 of Act of 1994). Sections 3(1) and 3(6) of the said Act provide as under :-
"Section 3 (1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentages of vacancies to which recruitment are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens.-
(a) in the case of Scheduled Castes twenty one percent :
(b) in the case of Scheduled Tribes two percent :
(c) in the case of Other Backward Classes of citizens twenty seven per cent :
Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Scheduled II."
"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)."
10. In support of abovementioned contention, learned counsel for the petitioners have relied upon the Division Bench Judgment of this court dated 19-05-2015 passed in Special Appeal No. 310 of 2015(U.P. Power Corporation Ltd. And Another Versus Nitin Kumar and 9 Others), which has been followed in Writ A No. 68706 of 2015 (Lalit Kumar Versus State of U.P. and Another).
11. Submission of learned counsels for the petitioners is that case of the present petitioners is squarely covered by the Judgment of this court in the case of Lalit Kumar (Supra) and U.P. Power Corporation Ltd.(Supra).
12. Learned counsels have further submitted that the State Government has issued a Government Order dated 25-03-1994. Para 4 of the said Government Order provides that if any candidate belonging to reserved category is selected with the general category candidates in an open selection, then he/she shall not be adjusted against the vacancies reserved for reserved category candidates, meaning thereby, such reserved category candidate shall be treated to be migrated against the unreserved vacancy though the reserved category candidates appeared in the selection after taking benefit of relaxation admissible to the candidates belonging to reserved category. Para 4 of the Government Order dated 25-03-1994 reads as follows :-
ß¼4½ ;fn vkjf{kr Js.kh ls lEcfU/kr dksbZ O;fDr ;ksX;rk ds vk/kkj ij [kqyh izfr;ksfxrk esa lkekU; vH;fFkZ;ksa ds lkFk p;fur gksrk gS rks mls vkjf{kr fjfDr;ksa ds izfr lek;ksftr ugha fd;k tk;sxk vFkkZr~ mls vukjf{kr fjfDr;ksa ds izfr lek;ksftr ekuk tk;sxk] Hkys gh mlus vkjf{kr oxZ ds vH;fFkZ;ksa dks vuqeU; fdlh lqfo/kk ;k NwV ¼;Fkk vk;q lhek esa NwV vkfn½ dk miHkksx fd;k gksAÞ
13. Learned counsel for the petitioners have further contended that on 30-01-2015, another order has been issued by the state government for strict compliance of provisions of Section 3(6) of U.P. Act No. 4 of 1994. In support of their submissions, they have also placed reliance on the Judgment of the Apex Court in the case of Jitendra Kumar Singh and Another Versus State of U.P. and Others, reported in 2010(3) SCC,119. In this case, the issue before the Apex Court were with regard to filling up of the general category posts by the candidates belonging to reserved category on their obtaining more marks than the last candidate in the general category. The Apex Court held that the submission of learned counsels for the petitioners/appellants is not accepted that the reserved category candidate having availed relaxation of age are disqualified for open category seat.
14. Another Judgment of the Apex Court, which has been relied upon by learned counsels for the petitioners is Ajith Kumar & Others Vs Renu Kr. and Others, reported in 2015 (16) SCC,778. In this case, the Apex Court held that once a candidate appears in the examination pursuant to a concession granted by the Service Commission, cannot be treated as less meritorious candidate who are entitled to be appointed to open category post even though having obtained higher marks. The Apex Court held that a relaxation or concession given at the preliminary stage, cannot have any relevance in determining the merit of the candidate.
15. The other Judgment of the Apex court, on which the learned counsels for the petitioners have placed reliance is Vikas Sankhala Versus Vikas Kumar Agarwal and Others, reported in (2017)1 SCC 350. In this case also, relaxation of 5% marks was made in favour of the reserved category candidates for passing TET test by the NCTE. The same issue had again cropped up that once concession has been taken, that candidate shall not be at par with the general category candidates. The Court framed three issues, which are quoted below :-
i. Whether the policy of the State as reflected in its letter dated March 23, 2011 deciding to give relaxation ranging from 10% to 20% in TET marks to different reserved categories as mentioned therein is valid in law?
ii. Whether NCTE notification dated July 29, 2011, which amends paragraph 3 of its earlier guidelines/notification dated February 11,2011, provides 5% relaxation to the reserved category to passing TET?
If so, whether it would be applicable to the reserved categories in the State of Rajasthan as well?
iii. Whether reserved category candidates, who secured better than general category candidates in recruitment examination, can be denied migration to general seats on the basis that they had availed relaxation in TET?
Learned counsels for the petitioners have relied upon the answer to Issue No. 3 which has been dealt with in Para 63(B) of the Judgment, which is quoted hereinbelow :-
63(b) Migration from reserved category to general category shall be admissible to those reserved category candidates who secured more marks obtained by the last unreserved category candidates who are selected, subject to the condition that such reserved category candidates did not avail any other special concession. It is clarified that concession of passing marks in TET would not be treated as concession falling in the aforesaid category.
16. Similar issue has been dealt with by the Apex Court by its Judgment dated 04-07-2019 passed in Civil Appeal No. 5185 of 2019(Arising out of S.L.P.(Civil) No. 3938 of 2018, Neeravkumar Dilipbhai Makwana Vs. Gujrat Public Service Commission and Others, whether a reserved category candidate, who has availed of age relaxation can thereafter seek to be accommodated in or migrated to the general category seat, the Apex Court replied in affirmative in favour of reserved category candidate.
17. Sri Vivek Shukla, learned counsel for the opposite parties no. 2 & 3 i.e. Uttar Pradesh Higher Education Service Commission, on the other hand, has vehemently opposed the submissions made on behalf of the petitioners. He has submitted that Section 3(6) of U.P. Act No. 4 of 1994 provides for "get selected on the basis of merit in an open competition". In the present case, the selection has yet not been completed. The selection would be completed only after the interview and hence, any migration from the reserved seat to unreserved seat is permissible only after completion of the selection but in the intermediate stage, migration is not permitted.
18. Learned counsel for the opposite parties no. 2 & 3 has further relied upon Regulation 6(2) of the Regulations 2014, which is quoted as under :-
"6. The commission shall scrutinize the applications and conduct the written examination and interview of eligible for the post of lecturer and principal.
i. Written examination for the post of lecturer shall consist one objective type question papers (General Knowledge and related optional subjects of fix marks- 2000 (60+140) and for interview 30 marks. Final merit list shall be prepare on the basis of marks obtained on both) (200+30).
ii. Selection for the post of Principal based on a written examination. Academic Performance Indicator (API) marks and interview. Written examination consist one objective question paper comprising General Knowledge and administrative aptitude test of fix marks (30+70) 100 marks. For API 50 marks which shall be allotted by the Commission's guideline based on U.G.C. norms. For Interview fixed 20 marks.
(2) The number of candidates to be called for interview as for as possible, be between three to five, the vacancies advertise as the Commission may consider proper. All within cut off marks shall be called for interview."
19. According to the learned counsel for the respondents, the candidates have been called for interview as per the statutory provisions in the ratio of 1:5 by determining cut off marks categorywise i.e. General, OBC and SC/ST.
20. Learned counsel for the opposite parties no. 2 & 3 has further relied upon the definition of selection as provided in Regulation 2(m) which is quoted below :-
2(m) "Selection" means selection of candidate finally after written examinations and interview, in pursuance of Advertisement already made." He has also placed reliance on Regulation 6 of the Regulations,2014, where it has been provided that "Final result declared to the marks of written examination and interview."
21. Learned counsel for the respondents has drawn attention of this court to the Press Release made by the Commission on 17-07-2019, which is quoted below :-
Þ;g Hkh Li"V djuk gS fd fyf[kr ijh{kk lEiw.kZ p;u izfdz;k dh ,d chp dh dM+h gS ftlesa vH;fFkZ;ksa dks ek= lk{kkRdkj gsrq vkeaf=r fd;k x;k gSA /;krO; gS fd fyf[kr ijh{kk dk ifj.kke p;u ugha gksrk gS] vk;ksx }kjk fyf[kr ijh{kk esa izkIr vadksa ds vk/kkj ij fofu;ekoyh&2014 ds fcUnq&6¼2½ lk{kkRdkj ds i'pkr~ lQy vH;fFkZ;ksa ds ¼fyf[kr ijh{kk $ lk{kkRdkj½ izkIr vadksa dh lesfdr esfjV lwph ds vk/kkj ij mRRkj izns'k yksd lsok ¼vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ds fy, vkj{k.k½ vf/kfu;e&1994 ds fcUnq&3¼6½ ds rgr vU; fiNM+k oxZ] vuqlwfpr tkfr ,oa vuqlwfpr tutkfr ds vH;FkhZ vukjf{kr (Unreserved) lkekU; Js.kh esa p;fur fd;s tk ldsaxsAß
22. The learned counsel has further relied upon an office memorandum which has been issued by the U.P. Public Service Commission on 09-12-2019,wherein it has not been provided that if any candidate has taken benefit of any qualified standard, then that candidate is entitled for migration/adjustment in the open category at the stage of final selection. Copy of the said Office Memorandum has been enclosed with the written submissions filed on behalf of the opposite parties no. 2 & 3.
23. The learned counsel for the respondents has placed reliance on para 52 of the Judgment in the case of Sanjeev Kumar Singh Versus State of U.P. and Others, reported in 2007(2) ADJ 150, wherein it has been held that ex-facie and undoubtedly, at the time of final select list, Section 3(6) of Act of 1994 would be applicable and if a reserve category candidate has secured marks more than a last general category candidate, he is entitled to be selected against unresreved seat without being adjusted against a reserved seat. Even, the said judgment is not of any help to the opposite parties no. 2 & 3, the reason being that in the same paragraph, it has been provided that all the candidates securing 50% marks and more in the preliminary qualifying written test participated in the physical test irrespective of the number of candidates qualifying against individual category. The standard of selection is common to all, whereas in the present writ petitions, the petitioners have been debarred from interview despite the fact that they have secured more marks in the written test than the candidates who were called for the interview belonging to unreserved category.
24. Learned counsel has further submitted that the method of shortlisting can validly be adopted by the selection body even in the absence of any rule or regulation and in support of his contention, he has also relied upon the Judgment of the Apex Court in the case of B.Ramakichenin Vs Union of India, reported in 2008(1)SCC,362. For convenience, para nos. 15,16 & 17 of the said Judgment are quoted below:-
"15. It is well settled that the method of short- listing can be validly adopted by the Selection Body vide Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar and another 1994 (6) SCC 293 (vide paras 6, 8, 9 and 13), Government of Andhra Pradesh vs. Dilip Kumar and another 1993 (2) SCC 30, etc.
16. Even if there is no rule providing for short- listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. for example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short-listing can be resorted to by the Selection Body, even though there is no mention of short-listing in the rules or in the advertisement.
17. However, for valid short-listing there have to be two requirements
(i) It has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a B.Sc. degree, and if there are a large number of eligible applicants, the Selection Body can resort to short-listing by prescribing certain minimum marks in B.Sc. and only those who have got such marks may be called for the interview. this can be done even if the rule or advertisement doe not mention only those who have the aforementioned minimum marks, will be considered or appointed on the post. Thus the procedure of short-listing is only a practical via- media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing as they may not be able to interview hundreds and thousands of eligible candidates;
(ii) If a prescribed method of short-listing has been mentioned in the rule or advertisement then that method alone has to be followed."
25. Learned counsel for the respondents has submitted that the selection is as per Regulations, 2014. The petitioners have neither challenged the relevant provisions of Regulations,2014 nor the Office Memorandum issued by the Commission. He has further contended that the the Judgments relied upon by the learned counsel for the petitioners are not applicable in the present case for the reason that the Judgment in the case of U.P. Power Corporation Ltd.(Supra), there was no Regulation, whereas in the present case, the Regulations are in existence providing the procedure and defining the selection.
26. As far as the other Judgment in the case of Government of Andhra Pradesh Versus P.Dilip Kumar and Another, reported in 1993(2)SCC310, is also not applicable,since the provisions are different.
27. On the other hand, learned counsel namely Sri Anuj Kudesia, Sri Gaurav Mehrotra and Sri Satendra Tripathi, who have moved impleadment applications on behalf of the unreserved category candidates, their impleadment applications have already been allowed by this court by its order dated 02-06-2020 have submitted that the petitioners have not approached this court with clean hands by making concealment in not disclosing that they have appeared in the examination by taking relaxation of 5% marks in post graduation as admissible to OBC category candidates. Sri Anuj Kudesia, Advocate, with the affidavit has also enclosed the copy of the form of Sri Rohit Verma, showing that he has scored 50% marks in Post Graduate and by taking advantage of relaxation of 5% marks, he became eligible to participate in the selection, since eligibility is 55% marks in the post graduation. It has further been contended that the petitioners have participated in the selection as an OBC Category candidates by taking relaxation and hence, cannot be treated at par with the candidates belonging to unreserved category.
28. Sri Anuj Kudesia, learned counsel has relied upon the Judgment of the Apex Court in the case of Deepa EV Versus Union of India & Ors, reported in [2017(12)SCC,680 and the Judgment dated 04-12-2019 passed by the Apex Court in the case of The Secretary, U.P. Public Service Commission Versus Dr. Shiv Vinayak Tripathi and Another.
29. Learned counsel after arguing at some length, have failed to dispute the law laid down in the case of Jitendra Kumar Singh (Supra) and very fairly accepted that in the present case, Judgment in the case of Jitendra Kumar Singh(Supra) is applicable.
30. Sri Anuj Kudesia, learned counsel has further contended that the petitioners on the basis of assumption disclosed their marks in the writ petitions and there is no official declaration of the result of the written examination by the Selection Service Commission but it is found that the marks said to be obtained by the petitioner were not disputed in the Counter Affidavit filed on behalf of opposite parties no. 2 & 3.
31. Sri Karunakar Srivastava, learned counsel for the petitioners in Writ Petition No. 19881 (S/S) of 2019, has filed a Supplementary Affidavit disclosing therein that the petitioners in his writ petition have scored more than 55% marks in post graduation and in support of his contentions, he has enclosed copy of the form. On being asked learned counsel representing the opposite parties no. 2 & 3 (U.P. Higher Education Service Commission), as to whether they want to file any objection/reply, the learned counsel representing the Commission has stated that no reply is required and the documents are on record.
32. After hearing learned counsels for the parties, it is found that it is not disputed that if a candidate belonging to reserved category scores higher marks than a candidate belonging to unreserved category, then the reserved category candidate would be migrated against the seats/posts of unreserved category irrespective of having taken any concession, as laid down in various Judgments of this court as well as of the Apex Court. To adjudicate the controversy in the present writ petition, the following questions crop up for consideration :-
(I) In a case, where the benefit of reservation is provided to certain categories, will it be permissible to shortlist the candidates categorywise and prepare a separate lists of each category of candidates, namely General, OBC and SC/ST.
(II) Can a candidate in the reserved category be migrated to the list of candidates of unreserved category on the basis of his merit ?
(III) At what stage of the process of recruitment, list of candidates on merits, so as to be called for interview is to be prepared particularly in reference to the provisions contained in Regulations,2014 ?.
33. It has been held by the Apex Court in the case of Jitendra Kumar (Supra) that the competition would start only at a stage when all the persons who fulfill all the requisite eligibility qualification,age etc. are shortlisted. Relevant extract of the said Judgment is quoted below :-
"17. .........However, after the promulgation of the 1994 Act and issuance of the Instructions dated 25th of March, 1994, the State Government has not treated relaxation in age and fee as relaxation in the standard of selection. Therefore, even if a candidate has availed concession in fee and or age limit, it cannot be treated to be relaxation in standard of selection. Therefore, it would not deny a reserved category candidate selection in Open Competition with General Category candidates. Such concessions can be granted by the State under Section (8)1 of the Act. The Division Bench has also held that a relaxation in age and concession in fee are provisions pertaining to eligibility of a candidate to find out as to whether he can appear in a competitive test or not and by itself do not provide any indicia of open competition. The competition would start only at a stage when all the persons who fulfill all the requisite eligibility qualification, age etc. are short listed. The candidates in the zone of consideration entering the list on the basis of aforesaid qualifications would thereafter participate in competition and open competition would commence therefrom. Therefore, concession granted under Section 8 would not disentitle a reserved category candidate of the benefit under Section 3 sub-Section (6)."
"49. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgment as noticed above. In these matters, we are concerned with the interpretation f the 1994 Act, the instructions dated 25.03.1994 and the GO dated 26.02.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus, becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category."
34. It is also clear that under the law a reserved category candidate has right to be considered against both the vacancies i.e. vacancies available for general category candidates depending upon his merit and the reserved category candidates. The vacancies under the unreserved category are not reserved for anyone. A candidate belonging to the reserved category who has scored higher marks than the last in the merit list of general category, would be adjusted against the unreserved vacancy and not against the reserved vacancy, against which he has applied.
35. If the submissions made on behalf of the opposite parties no. 2 & 3 are accepted then at the intermediate stage, the reserved candidate though having scored higher marks in the written examination cannot be migrated to the unreserved category candidates, who have scored lesser marks, it would then lead to illegality and discrimination for the reasons that firstly; the merit will be compromised whereas it is the very basis of selection, secondly;, by eliminating the reserved category candidate with higher marks at the intermediate stage itself namely, prior to interview amounts to final rejection of the candidature before completion of process of selection, thirdly; if the migration from reserved to unreserved category is not permitted at the intermediate stage i.e at the interview stage, then how the categorization has been made at the intermediate stage fourthly; if contention of learned counsel representing the opposite parties no. 2 & 3 is accepted, then very purpose of the legislation of Act No. 4 of 1994 particularly, Section 3(6) would be frustrated and would become redundant.
36. The contention made on behalf of opposite parties no. 2 & 3 is that the selection is proceeded as per Regulation 6(2), which provides that number of candidates to be called for interview would be 3 to 5 times of the vacancies advertised, as stated in the Counter Affidavit, is also not acceptable for the reason that Regulation 6(2) says that "as for as possible", meaning thereby, the ratio could be more than five times if the situation may so demand.
37. Regulation 6(2) is flexible and procedural in nature, which cannot impinge upon substantial rights provided statutorily i.e. U.P. Act No. 4 of 1994 and constitutionally. Again Regulation 6(2) does not put any limitation as stated in the Counter Affidavit as a reason not extending the zone of consideration and try to justify their arguments.
38. Contention of learned counsel for the opposite parties no. 2 & 3 is that for limitation of extending the zone of consideration by increasing the ratio is also against the law laid down by the Apex court. In support of their contention for shortlisting, relied upon a decision which rather held otherwise in the case of Dr. Shiv Vinayak Tripathi (Supra). The facts of the case were that in order to shortlist the candidates, the screening test was conducted by the appellants in terms of the resolution and the ratio of 1:3 was applied, for the next stage of selection process which was in intermediate stage. The Selection Service Commission had increased the ratio from 1: 3 to 1: 12 as for as the OBC candidates are concerned for calling the OBC category candidates obtaining the equal marks belonging to general category candidates. The said action was challenged and controversy had reached upto the Apex Court. The Apex Court held that there is no illegality or invalidity in such exercise of power by the Commission for the reason that as per the well settled law that a person belonging to reserved category, entitled to be considered against the unreserved post, such person has to be firstly absorbed against the post of unreserved category.
The reliance placed upon press release dated 09/02/2019 has no value, whatsoever, so as to deserve consideration. On the face of it, it is contrary to statutory provisions under section 3(6) of 1994 Act. Again it has been issued after first part of selection has already been taken place. It cannot have any retrospective effect after the selection has started and completed in parts. This press release does not help the respondents.
39. Judgment in the case of Deepa EV(Supra) relied upon by learned counsel, Sri Anuj Kudesia and Sri Gaurav Mehrotra is not applicable in the present case though the issue is same as mentioned in para 4 of the said Judgment, which reads as follows :-
"4. The appellant, who has applied under OBC category by availing age relaxation and also attending the interview under the "OBC category" cannot claim right to be appointed under the General category."
The Apex Court in para 8 of the said Judgment held as under :-
"8. The learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh v. State of U.P., which deals with the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Government Order dated 25.03.1994. On a perusal of the above judgment, we find that there is no express bar in the said U.P. Act for the candidates of SC/ST/OBC being considered for the posts under general category. in such facts and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate a level playing field. In the light of the express bar provided under the proceedings dated 01.07.1998 the principle laid down in Jitendra Kumar Singh cannot be applied to the case in hand."
In these circumstances, the Judgment in the case of Deepa EV(Supra) does not support the contention of learned counsels rather it cuts against their own argument.
40. Contention of learned counsel representing the opposite parties no. 2 & 3 that the Judgment in the case of U.P. Power Corporation Ltd. (Supra), is not applicable for the reason that the U.P. Power Corporation Ltd. has no Regulations like Regulations, 2014. The said contention is not acceptable, since it is wholly immaterial whether such Regulation exits or does not exist particularly in view of provisions u/s 3(6) of 1994 Act and the principle of equality in the matter of selection on merit.
41. Judgment of Division Bench of this court in the case of U.P. Power Corporation Ltd. (Supra)has been followed by this court in the case of Lalit Kumar (Supra).
42. In view of the discussions held above, the questions as framed are replied accordingly as follows :-
(1) Shortlisting of the candidates categorywise is permissible with or without any such provision.
(2) Yes, the candidates after short listing, participated in the open selection alongwith the candidates belonging to unreserved category if scored higher marks then they shall be migrated to the unreserved category vacancies according to the merit and if necessary the ratio of candidates can be increased against the number of vacancies more particularly in view of flexibility provided in Regulation 6(2) of Regulation 2014 or even otherwise.
(3) By eliminating the reserved category candidate with higher marks at the intermediate stage itself namely, prior to interview amounts to final rejection of the candidature before completion of process of selection. Regulations 2014 cannot be read in contravention of provision of an Act and the Constitution. A harmonious construction has to be made reading the provisions of Regulations,2014, Section 3(6)of U.P. Act No. 4 of 1994 and Articles 14 and 16 of the Constitution of India. The position that emerges out is that a reserved category candidate shall not be debarred from further selection if the candidate has scored higher marks than cut off marks fixed for the candidates belonging to unreserved category called for the interview.
43. At later stage, learned counsels representing the private respondents have relied upon the Judgment and order dated 10-11-2016 passed by this court in Writ Petition No. 6083 (S/S) of 2016, Sachhida Nand Mishra Versus State of U.P. and Others, to say that in such a circumstances whole selection need not be quashed and relief may be confined to the petitioners of this case who have approached this court. As a mater of fact no such plea has been raised to quash the whole selection in the present proceedings. The petitioners in the two writ petitions in question can well be granted relief confined to them without disturbing the whole process of selection which question was not raised by any party nor any such relief is sought.
44. It has also been informed by learned counsel representing all the parties that in all other 32 subjects, the selection has been made by following the same procedure and appointment orders have also been issued in favour of the successful candidates except for the Sociology Subject.
45. Since, the petitioners can be granted relief without quashing the selection process held so far, it is hereby directed that the petitioners having higher marks than the last candidate of unreserved category called for the interview, the petitioners, since have approached the court, shall be allowed in the further process of selection, against the unreserved seats, namely in the interview. To avoid any further delay, a direction is also issued to opposite parties no. 2 & 3 to complete the process as early as possible say within a period of six weeks from the date a certified copy of this order is served.
46. With the directions made hereinabove , both the writ petitions are hereby allowed.
47. No order as to costs.
48. Let a copy of this order be placed on the record of Writ Petition 19881 (S/S) of 2019.
Order Date :- 17.6.2020
AKS/VKS
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