Some newspapers have misreported a recent judgment (Deepa EV v. Union of India) of the Supreme Court, claiming that the judgment states that candidates from the “reserved” category (SC/ST/OBC) can’t claim seats in the general category in any case. Such claims state that 50% of all seats are completely “reserved” for the general category, and no SC/ST/OBC person can have a claim on such seats, even on the basis of merit. However, the actual judgment does not imply anything of this sort. Moreover, the law on this point – whether reserved category candidates can claim seats in the general category on the basis of merit – is very clear.
In Deepa E.V., the appellant belonged to the OBC category and had availed age relaxation (as was granted to OBC category candidates). Since no candidate from the general category had secured the minimum cut-off score, the appellant filed a writ petition before the high court to be accommodated in the general category. The high court dismissed the petition. The Supreme Court affirmed this decision and held that:
“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 reason, as per the court, was “there is an express bar for the candidates belonging to SC/ST/OBC who have availed relaxation for being considered for General Category candidates.” The court was reading the existing rules and proceedings of Department of Personnel and Training, which stated that: “[W]hen a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.”
On similar lines, in 2015, in Gujarat Public Service Commission v. Parmar Nilesh Rajendrakumar, the Gujarat high court had held that:
“Considering the reservation policy applicable in the State of Gujarat contained in circular dated 29.01.2000 and 23.07.2004 and relevant statutory provisions i.e. Recruitment Rules, 1967, 2009 and 2010, it is held that all those candidates belonging to the reserved category if they avail the benefit of age relaxation, it is held to be relaxation in the standard, and therefore, are not entitled to their cases being considered for General Category vacancies and that their cases are required to be considered for the reserved category vacancies.”
The proposition developed by the courts in these two judgments is that when there is an existing policy regarding the express bar for those SC/ST/OBCs who have availed relaxation (such as age-relaxation) in a selection process, such “reserved” category candidates won’t be entitled to seats in the general category, even on the basis of merit. However, in Deepa E.V., the court had also observed: “Be it noted, in the instant case, the appellant has not challenged the constitutional validity of the proceedings dated 1.7.1998 read with Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980… [T]he appellant has only sought for a declaration that Exhibit P5 (proceedings dated 1.7.1998) is not binding on the appellant. No argument was canvassed challenging the constitutional validity of the proceedings before the learned Single Judge or before the Division Bench of the High Court.”
This observation by the Supreme Court is quite important in context of the correct position of the law on this issue. This is because if the constitutional validity of these proceedings had been challenged, they would have been struck down, as they are inconsistent with a number of decisions made by the Supreme Court and the high courts.
In the case of Jitendra Kumar Singh v. State of UP (2010), the Supreme Court was considering the UP Public Services (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1994 Act (“UP Act”) and government order dated March 25, 1994. The order stated: “If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category.” The Supreme Court thereby stated that a bare perusal of the order implies that there is no express bar in the UP Act for SC/ST/OBC candidates being considered for posts under the general category. It held:
“From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that Government Orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked.”
The court made it clear that: “With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit.”
In Indra Sawhney v. Union of India (1992) popularly known as the Mandal case, the Constitution Bench of the Supreme Court had held:
“[It] is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.”
In R.K. Sabharwal v. State of Punjab (1995), the Constitution Bench of the Supreme Court considered the question of appointment and promotion and roster points vis-a-vis reservation and thereby held:
“When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts; their number cannot be added and taken into consideration for working out the percentage of reservation…
No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.”
In Union of India v. Virpal Singh Chauhan (1995), the Supreme Court held that while determining the number of posts reserved for SC and ST, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.
In Ritesh R. Sah v. Dr. Y.L. Yamul (1996), the question was whether a reserved category candidate who is entitled to be selected for admission in open competition on the basis of his/her own merit should be counted against the quota meant for the reserved category or if the candidate should be treated as a general candidate. The court reached the conclusion that when a candidate is admitted to an educational institution on his own merit, then such admission is not to be counted against the quota reserved for schedule castes or any other reserved category. It was held so in the following words:
“[W]hile a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate.”
In Dr. N.T.R. University of Health Sciences v. Dubbasi Praveen Kumar, the division of the Andhra Pradesh & Telangana high court held:
“There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4).”
Moreover, in UP Power Corporation Ltd v. Nitin Kumar (Special Appeal No. 310 of 2015, judgment dated 19.05.2015), the division bench of the Allahabad high court, headed by the then chief justice D.Y. Chandrachud, had held that an unreserved post or seat/general category seat is one in which every individual, irrespective of the category to which the person belongs, can compete in open merit. It was further held:
“Where a candidate is meritorious enough to be placed within the zone of selected candidates independent of any claim of reservation and purely on the basis of the merit of the candidate, the candidate ought not to be relegated to a seat against the reserved category. The simple reason for this principle is that reservation is a process by which a certain number of posts or seats is carved out for stipulated categories such as OBC, Scheduled Castes and Scheduled Tribes. Unreserved seats do not constitute a reservation for candidates belonging to categories other than the reserved categories.”
Thus, there is no law prescribing reservation for general category candidates in public employment and therefore there does not arise any question of the reserved category candidates occupying or being selected against “their seats”. Since there is no concept of providing reservation to general category candidates, there cannot be any concept of “their fixed seats”. Such seats can be claimed by everyone on basis of merit. The judgment in the Deepa E.V. case is incomplete. Based on the precedents mentioned, the correct position would be that there can’t be any limitation on the reserved category candidates to claim a seat in the general category on the basis of merit. The relaxations provided are merely to bring the candidates of the reserved” category in a level-playing field, which is the spirit under the text of Article 16(4) of the Indian constitution.
The author is a final year student of B.A. LL.B (Hons.) at Dr. Ram Manohar Lohiya National Law University, Lucknow. His twitter handle is @anuragbhaskar_