-1- R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF AUGUST, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NO.18947 OF 2016 (S-CAT) C/W WRIT PETITION NO.54254 OF 2016 (S-CAT) IN W.P. NO.18947 OF 2016 BETWEEN ANTHONY S MARIYAPPA AGE ABOUT 27 YEARS SELECTED CANDIDATE FOR IFS UNDERGOING TRAINING AT INDIRA GANDHI NATIONAL FOREST ACADEMY DEHRADUN-248 006 PERMANENT ADDRESS: MARIYALIN PARADISE BEHIND DEREBAIL CHURCH PRASHANTH NAGAR, 3RD CROSS, DEREBAIL, MANGALURU-575 006.
... PETITIONER (BY SRI D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR SRI REUBEN JACOB, ADVOCATE) AND 1. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF ENVIRONMENT FORESTS & CLIMATE CHANGE INDIRA PARIYAVARANABHAVAN, PRITHVI BLOCK, 6TH FLOOR, JORBHAG ROAD, ALIGANJ NEW DELHI-110 003.
2. UNION PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY DHOLPUR HOUSE, SHAJAHAN ROAD, NEW DELHI-110 001.
3. G.KIRAN AGED ABOUT 28 YEARS, S/O GOVINDRAJU, R/AT # 125, ‘ASHA KIRAN’, OPP: DEEPA HOSPITAL 1ST MAIN ROAD, SREE VINAYAKA EXTENSION, K.R.PURAM, BENGALURU-560 031.
... RESPONDENTS (BY SRI V LAKSHMINARAYANA, SENIOR COUNSEL FOR SRI RANGANATH S JOIS, ADVOCATE FOR C/R3 SRI B PRAMOD, CGC FOR R1 SRI V NARASIMHA HOLLA, ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE FINAL ORDER DT.15.3.2016 IN O.A.NO.170/00239/2015 PASSED BY THE C.A.T BANGALORE BENCH AT BANGALORE VIDE ANNX-E TO THE W.P. AND DISMISS THE SAID O.A.NO.170/00239/2015 FILED BY THE R-3 AND ETC.
IN W.P. NO.54254 OF 2016 BETWEEN UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF ENVIRONMENT FORESTS & CLIMATE CHANGE PRITHVI BLOCK 6TH FLOOR, JORBAGH ROAD, ALIGANJ NEW DELHI 110003 (BY SRI B PRAMOD, ADVOCATE) ..PETITIONER AND 1. G. KIRAN AGED ABOUT 28 YEARS, S/O GOVINDRAJU R/A # 125, ASHA KIRAN, OPP DEEPA HOSPITAL 1ST MAIN ROAD, SREE VINAYAKA EXTN K R PURAM, BANGALORE 560031 2. UNION PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY DHOLPUR HOUSE SHAJAHAN ROAD NEW DELHI 110001 3. SHRI ANTONY S MARIYAPPA SELECTED CANDIDATES FOR IFS UNDERGOING TRAINING AT INDIRA GANDHI NATIONAL FORT ACADEMY DEHRADUN 248006 ... RESPONDENTS (BY SRI V LAKSHMINARAYANA, SENIOR COUNSEL FOR SRI RANGANATH S JOIS, ADVOCATE FOR R1 SRI NARASIMHA V HOLLA, ADVOCATE FOR R2 SRI NANJUNDA REDDY, SENIOR COUNSEL FOR SRI REUBEN JACOB, ADVOCATE FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD:15.3.2016 IN OA NO.170/00239/2015 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU (ANNEXURE-E) AND ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 31.07.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, DEVDAS J., MADE THE FOLLOWING:
COMMON ORDER These petitions seek to assail the impugned order dated 15.03.2016 passed by the Central Administrative Tribunal in O.A.No.170/00239/2015. Both the petitions are heard and disposed of by this common order.
2. The petitioner Sri.Anthony S. Mariyappa, and the third respondent Sri. G.Kiran, appeared for the Civil Services Examination conducted in the year 2013 for selection to Indian Forest Services (IFS), an examination conducted by the Union Public Service Commission (for short ‘UPSC’) in terms of notification dated 05.03.2013, also known as ‘The Rules for a competitive examination to be held by the Union Public Service Commission in 2013’ for the purpose of filling vacancies in the Indian Forest Service (hereinafter referred to as ‘The Rules’ for short).
[ 3. The undisputed facts are that the petitioner herein applied for the post as General Merit candidate, while the third respondent applied as Reserved candidate (Scheduled Caste). In the preliminary examination, the petitioner secured 270.68 marks, while the third respondent secured 247.18 marks. The qualifying marks for General Merit was prescribed as 267, while the qualifying marks under Scheduled Caste Category was 233 marks. Since both the candidates secured the requisite qualifying marks, they were admitted for the Main examination (written). In the Main examination, the third respondent secured 617 marks and the cut-off marks for General Merit was 479. Both the candidates were interviewed in the personality test and inclusive of the interview marks, the third respondent secured 791 marks. The petitioner herein scored lesser than the third respondent. As a result, in the merit list that was prepared by the UPSC, the petitioner herein stood at Sl.No.37, while the third respondent was placed at Sl.No.19.
4. Both the candidates herein had given their preference as ‘Karnataka cadre’. The Central Government, while allocating the cadres to the candidates, on the basis of results of Indian Forest Service Examination, 2013, by notification dated 13.03.2015, allocated ‘Karnataka cadre’ to the petitioner herein, while the third respondent was allocated ‘Tamil Nadu cadre’. The bone of contention is the allocation in the impugned notification dated 13.03.2015.
5. The third respondent herein approached the Central Administrative Tribunal (hereinafter referred to as ‘Tribunal’ for short) and the Tribunal allowed the application, while directing the Central Government to allocate ‘Karnataka Cadre’ to the third respondent. Being aggrieved, the petitioner and the Central Government have preferred these two writ petitions.
6. Sri D.N.Nanjunda Reddy, learned Senior Counsel appearing for the petitioner submitted that the Tribunal has wrongly interpreted the Official Memorandum dated 21.04.2011 and therefore on that ground alone, the impugned order requires to be set aside. It is submitted that the amended paragraph No.9, in Official Memorandum dated 21.04.2011 clearly provides that a Reserved category candidate selected on ‘general standards’ is eligible for allocation against the available unreserved vacancy as per his merit and preference. It is submitted that the Tribunal has not considered the words ‘general standards’, when it is an admitted fact that the third respondent herein availed relaxation in the preliminary examination, having not qualified on general standards viz., securing lesser than the cut-off marks prescribed for a General Merit candidate.
7. The learned Senior Counsel submitted that Clause-14 and the proviso to Clause-14(ii) of ‘The Rules’ clearly provide that only such of the candidates belonging to any of the Scheduled Castes, Scheduled Tribes or Other Backward Classes who have been recommended by the Commission without resorting to any relaxations/concessions in the eligibility or selection criteria, at any stage of the examination, are eligible for being appointed against unreserved vacancies. In other words, it is submitted that once a candidate belonging to the Reserved Category, obtains any relaxation/concession in the eligibility or selection criteria, at any stage of the examination, he/she is not eligible for appointment to an unreserved vacancy. The third respondent having obtained relaxation at the stage of preliminary examination, having failed to secure the minimum prescribed marks of qualification for being admitted to the Main examination, the third respondent was rightly treated as ‘Reserved Candidate’ and therefore, the Central Government was right in allocating the preferred cadre to the petitioner herein, since only one unreserved vacancy was available in Karnataka cadre.
8. In this regard, the learned Senior Counsel placed reliance on the following decisions of the Hon’ble Supreme Court:
i) Union of India and Others Vs. Rajiv Yadav, IAS and Others (1994) 6 SCC 38;
ii) Deepa E.V. Vs. Union of India and Others (2017) 12 SCC 680; and iii) Niravkumar Dilipbhai Makwana Vs. Gujarat Public Service Commission (2019) SCC OnLine SC 827.
9. Sri B.Pramod, learned CGC appearing for the Union of India and Sri V.Narasimha Holla, learned Counsel for the UPSC would support the contentions of the learned Senior Counsel, appearing for the petitioner. Sri B.Pramod, learned CGC would add that the observation of the Tribunal that the Official Memorandum dated 21.04.2011 cannot stand in the eye of law and Constitution, on the mistaken premise that the same is against settled principles of law that a meritorious Scheduled Caste candidate cannot be treated as General Merit candidate, cannot be sustained and therefore requires to be set aside. The learned Counsel submits that the Tribunal has proceeded on a mistaken notion that the third respondent herein is a meritorious Scheduled Category candidate, having failed to notice that paragraph-9 of the Official Memorandum dated 21.04.2011 provides for allocation against available unreserved vacancy as per merit and preference of a reserved category candidate who has been selected on ‘general standards’, while the third respondent does not fit into that category.
10. Per contra, Sri V.Lakshminarayana, learned Senior Counsel appearing for the third respondent seeks to justify the impugned order passed by the Tribunal. The primary submission of the learned Senior Counsel is that Clause-14(i) of ‘The Rules’ provides that 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 general qualifying mark. A candidate who scores above the cut-off mark, irrespective of the category, shall be appointed as General Merit candidate. The third respondent, having scored very high marks in the Main examination and personality test, was placed way above the petitioner herein i.e., at Sl.No.19, while the petitioner stands at Sl.No.37. Therefore, in terms of Clause-14(i) of ‘The Rules’, the relaxation granted during the preliminary examination is inconsequential and only the marks obtained in the Main examination and personality test are required to be considered. Therefore, it is submitted that the decision of the Tribunal cannot be faulted with, having observed that any Official Memorandum which militates against the settled position of law and runs counter to Articles 14, 16 and 335 of the Constitution of India can only be ignored and was rightly ignored by the Tribunal.
11. The learned Senior Counsel places reliance on the following decisions, to buttress his contention:
1. Anurag Patel Vs. U.P.Public Service Commission and Others (2005) 9 SCC 742;
2. Andhra Pradesh Public Service Commission Vs. Baloji Badhavath and Others (2009) 5 SCC 1;
3. Union of India Vs. Ramesh Ram And Others (2010) 7 SCC 234; and 4. Ajithkumar P. & Others Vs. Remin K.R. And Others (2015) 16 SCC 778.
12. Heard Sri D.N.Nanjunda Reddy, learned Senior Counsel along with Sri Reuben Jacob, learned Counsel appearing for the petitioner, Sri V.Lakshminarayana, learned Senior Counsel along with Sri Ranganath S.Jois, learned Counsel appearing for the third respondent, Sri B.Pramod, learned CGC appearing for Union of India and Sri V.Harikrishna Holla, learned Counsel appearing for UPSC and perused the writ papers.
13. On going through all the judgments cited by the learned Counsels, we find that the basic principles enshrined therein and the common thread passing through the various judgments of the Hon’ble Supreme Court may be summed up as follows:
i) Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or 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 service under the State. It is purely a matter of discretion of the State to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being an enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time.
(ii) Where certain number of posts are reserved in favour of candidates belonging to socially and economically backward classes, meritorious candidates belonging to those classes should not be appointed to such reserved posts but shall be appointed to posts falling in the open category.
(iii) The Constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, to select candidates and/or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor.
iv) Judgment of merit may be at several tiers. The State must adopt some criteria. It is bound to devise some procedure to shortlist the candidates.
14. The basic requirement, therefore, is to look for the policy of reservation and the enabling provisions, in the nature of Rules/Regulations/Guidelines/Official Memoranda/Circulars. The relevant provisions governing the conduct of examination, selection and appointment in the present case are as follows:
Clauses 13 and 14 of ‘The Rules for a competitive examination to be held by the Union Public Service Commission in 2013’ for the purpose of filling vacancies in the Indian Forest Service, which read as under:
13. Candidates who obtain such minimum qualifying marks in the Preliminary Examination as may be fixed by the Commission at their discretion shall be admitted to the Indian Forest Service (Main) Examination (written); and candidates who obtain such minimum qualifying marks in the Main Examination (written) as may be fixed by the Commission at their discretion shall be summoned by them for an interview for a personality test:
The minimum qualifying marks as determined above, may be relaxable at the discretion of the Commission, in favour of Physically Handicapped candidates, in order to fill up the vacancies reserved for them, if any.
Provided that candidates belonging to the Scheduled Castes or Scheduled Tribes or Other Backward Classes may be summoned for an interview for a personality test by the Commission by applying relaxed standards in the Preliminary Examination as well as Main Examination (Written) if the Commission is of the opinion that sufficient number of candidates from these communities are not likely to be summoned for interview for a personality test on the basis of the general standard in order to fill up vacancies reserved for them.
14(i) 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.
(ii) The candidates belonging to any of the Scheduled Castes, the Scheduled Tribes or Other Backward Classes may to the extent of the number of vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes be recommended by the Commission by a relaxed standard, subject to the fitness of these candidates for selection to the Service.
Provided that the candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes who have been recommended by the Commission without resorting to any relaxations/ concessions in the eligibility or selection criteria, at any stage of the examination, shall not be adjusted against the vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes.
15. Paragraph-9 of the Official Memorandum dated 10.04.2008 of Cadre Allocation Policy, reads as under:
“9. A reserved category candidate selected on general standards shall be eligible for allocation against the available insider unreserved vacancy as per his merit and preference. But if he cannot be allocated against such vacancy, for he is lower in rank as compared with other general category candidates, he shall be considered for allocation as per his merit and preference against the available insider vacancy of his category and, in case found eligible, adjusted by exchanging insider vacancy in his category into insider UR vacancy and outsider UR vacancy into outsider reserved vacancy of his category. This is to ensure that such candidate is not placed at disadvantageous position vis-à-vis other candidates of his category in the merit list below him.”
16. Official Memorandum dated 10.04.2008 was amended by paragraph-9 of the Official Memorandum dated 21.04.2011, and subsequent to amendment, paragraph-9 of Cadre Allocation Policy, reads as follows:
“9. Notwithstanding what has been said above a reserved category candidate selected on general standards shall be eligible for allocation against the available unreserved vacancy as per his merit and preference. But if he cannot be allocated against such vacancy, for he is lower in rank compared with other general category candidates, he shall be considered for allocation as per his merit and preference against the available vacancy of his category.”
17. In terms of the Rules, the examination is a two tier examination. A preliminary screening examination followed by a Main Written Examination and Interview.
Clause (1) of ‘The Rules’ provides that for screening suitable number of candidates for the second stage of the examination, all candidates would be required to qualify Civil Services (Preliminary) Examination. Relaxation in the nature of age, number of attempts, payment of prescribed fee to candidates belonging to the reserved category and physically challenged candidates is provided for.
18. Clause-13 provides that candidates who obtain such minimum qualifying marks in the preliminary examination as may be fixed by the Commission shall be admitted to the Main examination. Similarly, candidates who obtain such minimum qualifying marks in the Main examination shall be summoned for interview/personality test. The proviso to Clause-13 provides that candidates belonging to the Scheduled Castes or Scheduled Tribes or other backward classes may be summoned for an interview for a personality test by the Commission by applying relaxed standards in the preliminary examination as well as Main examination, if the Commission is of the opinion that sufficient number of candidates from these communities are not likely to be summoned for interview for a personality test on the basis of the general standard in order to fill up vacancies reserved for them.
19. The contention of the petitioner herein and Central Government/UPSC is that the proviso to Clause (14)(ii) provides that if a candidate belonging to the Reserved Category is given any relaxation/concession in the eligibility or selection criteria, at any stage of the examination, he/she cannot be considered against an unreserved vacancy. It is further contended that the third respondent having availed a relaxation in the preliminary examination, he is precluded from consideration for an unreserved vacancy. The focus, therefore, is on the proviso to Clause(14)(ii) of ‘The Rules’.
20. A close examination of the proviso to Clause (14)(ii) would reveal that a candidate belonging to the Reserved Category who has been recommended by the Commission without resorting to any relaxations/concessions in the eligibility or selection criteria, at any stage of the examination, shall not be adjusted against the vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. In the considered opinion of this Court, the said proviso is confined to candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes who have been recommended by the Commission without resorting to any relaxations/concessions and that such candidates shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes. This proviso mandates that a meritorious candidate belonging to Scheduled Caste, Scheduled Tribe and Other Backward Class shall occupy an unreserved vacancy and shall not be adjusted to reserved vacancy. In fact, similar provisions fell for consideration at the hands of the Hon'ble Supreme Court in Anurag Patel1 and Ramesh Ram3, where the Constitutional Bench held that such 1 (2005) 9 SCC 742 3 (2010) 7 SCC 234 provisions operate adversely and are detrimental to the interest of meritorious reserved candidates, since the provision bars meritorious reserved candidates from occupying reserved vacancies.
21. Though the intention of the provision was to comply with the declaration made by the Hon'ble Supreme Court in the case of R.K.Sabharwal, reported in (1995) 2 SCC 745, that State shall not count a reserved category candidate selected in the open category against the vacancies in the reserved category, however, it was found that some of the candidates belonging to the reserved category, having been selected in the open category, were not able to secure better posts, while a reserved category candidate is able to occupy a better post, on the basis of such posts being reserved for that category. By way of illustration, it was explained that in the UPSC examinations, vacant posts of IAS, IFS (Indian Foreign Service), IPS may require to be filled up. Let’s say, a meritorious candidate belonging to the Scheduled Caste/Scheduled Tribe category is ranked at 126 in the merit list. The number of vacant posts in IAS cadre is 75 and about 50 posts in the IFS cadre remain to be filled up. Going by the merit list, the meritorious reserved category candidate may not get a posting of IAS or IFS. Whereas, if 5 posts in IAS cadre are reserved for Scheduled Caste category, non-meritorious Scheduled Caste candidates, who are ranked amongst the first five in the category may secure the five reserved IAS cadre, while the more meritorious Scheduled Caste candidate will be deprived of IAS cadre, going by similar provisions like the proviso to Clause (14)(ii). It is to remove such anomaly that the decisions in Anurag Patel1 and Ramesh Ram3 were delivered by the Hon’ble Apex Court.
22. The disadvantage caused to meritorious reserved candidates was the subject matter of earlier decisions in the case of Anurag Patel1 and the Hon'ble Supreme Court had held in the case of Anurag Patel1 which was decided on 29.09.2004 that as the result is unjust and unsustainable, it was clarified that inter se ranking shall be determined on basis of their inter se 1 (2005) 9 SCC 742 3 (2010) 7 SCC 234 merit and more meritorious amongst them to be given first choice of posts, each service being treated separately. It is in the background of such scenario that the Constitutional Bench held that when a meritorious reserved candidate wishes to avail a vacancy in the reserved category, he shall not be prohibited from doing so.
23. As a consequence of the authoritative pronouncement in Anurag Patel1, confirmed by the Constitutional Bench, suitable amendments were brought about to such provisions, enabling meritorious reserved candidates to opt for a reserved vacancy, at their wish. It may be noticed that the Official Memorandum No.13011/22/2005-AIS (I) dated 10.04.2008 was issued by the Government of India providing in paragraph-9 of the Cadre Allocation Policy, enabling the reserved meritorious candidates to have a choice even in reserved vacancies. Amendment brought to paragraph-9 by subsequent Official Memorandum dated 21.04.2011 has no bearing on this issue. At any 1 (2005) 9 SCC 742 rate, the proviso to Clause (14)(ii) does not deal with a situation or provide that a reserved category candidate, having availed any relaxation/concession at any stage of the examination, is precluded from being considered under the open category.
24. On the contrary, Clause (14)(i) provides that the Commission shall prepare an 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, on the basis of the marks obtained by candidates in the Main Examination as well as interview. Therefore, there is nothing in the provision which would preclude consideration of a reserved category candidate for being considered to unreserved vacancies, on the premise that he had obtained a relaxation or concession at the preliminary stage or at any stage of the examination.
25. That being the position, the words ‘general standards’ used in paragraph-9 of the Official Memorandum dated 10.04.2008 and Official Memorandum dated 21.04.2011 can only refer to the general standard or ‘general qualifying standard’ prescribed in Clause (14) (i) viz., a qualifying mark fixed by the Commission on the basis of the aggregate marks finally awarded to each candidate in the Main Examination. The Commission, accordingly, having placed the third respondent at Sl.No.19 and the petitioner at Sl.No.37, on the basis of the marks obtained in the Main Examination, could not have denied the benefit of an unreserved vacancy to the third respondent. Clause (14)(ii) deals with the other set of reserved category candidates who fell below the qualifying mark or general qualifying standard, as prescribed in Clause (14)(i). Admittedly, the third respondent does not fall under that category.
26. In the light of the discussion above, it is evident that the UPSC and Central Government misread the provisions of the Rules and Official Memoranda dated 10.04.2008 and 21.04.2011, in coming to a conclusion that the Rules would provide that if a reserved category candidate has obtained any relaxation/concession in the eligibility or selection criteria, at the stage of preliminary examination, he/she cannot be considered for an unreserved vacancy.
27. In the opinion of this Court, the decision in Ajithkumar P.4, would be applicable to the present fact situation. Though, in Ajithkumar P.4 the Hon’ble Supreme Court was dealing with a situation where the Rules did not provide for preliminary examination and relaxation of cut-off marks could not disentitle a meritorious candidate at final stage who benefited from concession at preliminary stage to appointment against open category posts, the ratio applies to the present case. The decision of the High Court, in that case, wherein it had held that a reserved category candidate having secured a relaxation or concession at the preliminary stage, could not have been considered for open category vacancy, was held to be erroneous since the Rules of procedure were wrongly interpreted. The ratio that when relaxation or concession is given at the 4 (2015) 16 SCC 778 preliminary stage, which has no impact on the final ranking, the relaxation so given cannot have any relevance insofar as the final ranking is concerned, applies to the present case. As noticed earlier, Clause (14) (i) indeed provides that the aggregate marks finally awarded to each candidate in the Main Examination alone shall form the basis for preparation of a merit list.
28. In our opinion, the Rules and Official Memoranda dated 10.04.2008 and 21.04.2011 are in sync with the Constitutional ethos and intendment as found in Articles 14, 16(1), 16(2) and 335 of the Constitution and in tune with the authoritative judicial pronouncements on the law of reservation. The idea behind providing relaxation in the nature of age, number of attempts, payment of fees and such other eligibility criteria in favour of candidates belonging to reserved category is to ensure a level playing field. The real merit is tested in the Main Written examination. When the mettle of candidates are put to test in the Main Written examination and candidates belonging to the reserved category score better than a General Merit candidate, such candidates cannot be denied open category vacancies. If provisions are made contrary to such principles, we would not hesitate to hold that such provisions are not in sync with Articles 14, 16(1), 16(2) and 335 of the Constitution and the same deserve a relook.
29. As noted in the beginning, the examination in question pertains to IFS cadre only. Therefore, as in the case of general recruitment conducted by UPSC, the examination is not conducted for multiple cadres. The only advantage that a meritorious candidate selected under the general category gets is choice of preferred State cadre. A candidate higher in the rank will get an opportunity of choosing preferred State cadre. Before the Tribunal, the third respondent had not challenged the non-allocation of general merit post, the grievance of the third respondent was restricted to non-allocation of preferential State cadre. This Court, having come to a conclusion that the third respondent was entitled for an unreserved vacancy, proceeds to hold that the third respondent is entitled for being considered to the vacancy of insider post. Since there was only one vacant insider post in the Karnataka cadre, the third respondent was entitled for the same.
30. Though the reasoning given by the Tribunal may not be sound, the Tribunal has nevertheless stumbled upon the right decision, in allowing the application filed by the third respondent herein. As a result, we dismiss the writ petitions while directing the Union of India to reallocate preferential State cadre to the third respondent herein.
SD/- JUDGE SD/- JUDGE JT/DL