JUDGMENT Sunil Ambwani, J.
1. All these three writ petitions arise out of selections for the post of 'Village Development Officer' (in short VDO) initiated by advertisement dated 31.8.1998, for appointment in Department of Rural Development, Government of U.P. The selections were held under the U.P. Procedure for Selections for Direct Appointment for Group 'C Posts (Outside the Purview of U.P. Public Service Commission) Rules 1998 (in short the Rules of 1998). The results were published on 29.5.1999.
2. A Writ Petition No. 42041 of 2000 was filed by Sri Hari Ram Yadav for a direction to the respondents to consider the petitioner for appointment on the post of V.D.O., with highest marks in waiting list. The Writ Petition was allowed by a Single Judge of this Court on 27.7.2001 with the findings that the petitioner had participated in the selections as and Other Backward Class' (OBC) candidate for total 43 vacancies for the post of VDO advertised on 31.8.1998. He secured 48.87%' marks and was placed in the waiting lit of OBC candidates, drawn separately. The petitioner made a representation that two selected general category candidates did not join and since the petitioner had secured higher marks than the first candidate in the waiting list of the general candidates he was entitled to be appointed against one of these vacancies. In this writ petition, the merit list was brought on record and annexed with the Supplementary Counter Affidavit of Sri Tez Pratap Misra, Block Development Officer, Varanasi. From this list, the Court found that the last candidate in general category Sri Pawan Kumar Misra had secured 47.93 % marks, whereas the petitioner had secured 48.87% marks, in the list of candidates selected in OBC category and was placed at serial No. 14 in the list of selected candidates belong to OBC category. The Court found that the list was not prepared in accordance with Section 4 (6) of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994 (in short the U.P. Act No. 4 of 1994) which provides that the candidates belonging to reserved category, selected on merits should not be counted in the reserved quota. It was found that some of the OBC and SC candidates had secured higher marks than the general category candidates. The writ petition was consequently allowed and respondents were directed to offer appointment to the petitioner forthwith and to draw fresh select list in accordance with the Section 3 (6) of the U.P. Act No. 4 of 1994 and appoint the left out persons belong to reserved categories by making consequential orders, if necessary, by termination of services of the persons illegally appointed, due to non-compliance of the provisions of U.P. Act No. 4 of 1994 within a month from the date of receipt of the certified copy of the order.
3. This judgement in Writ Petition No. 42041 of 2000, was challenged in two Special Appeal Nos. 256 of 2002 and 264 of 2004 filed by appellants, who were selected in the general category. Out of the total of 8 appellants, 07 of them were selected as general category candidates in the main select list and two of them namely Akash Sawhany (appellant No. 2, in Special Appeal No. 256 of 2002), Rajeev Nath Tiwari (appellant No. 4, Special Appeal No. 264 of 2004) were selected from the waiting list. Both these appeals were allowed by Division Bench on the ground that learned Single Judge did not consider the judgement in Post Graduate Institute of Medical Education and Research, Chandigarh and Ors. v. K.L. Narasimha . In this judgement, an observation was made at page 293 as follows;
"It is settled law that if a Dalit and Tribe candidate gets selected for admission to a course or appointment to a post on the basis of merit as general candidate, he should not be treated as reserved candidate. Only one who got admission by virtue of relaxation criteria should be treated as reserved candidate. The Division Bench directed that the order of termination of the services of the appellants dated 6.5.2002 need not be given effect to and status quo as on 6.5.2002 be maintained. The proposed appellants were directed to be added as Vespondents 4, 5 and 6 in the writ petition and they were directed to file counter affidavit by 2.7.2002, rejoinder affidavit by 8.7.2002 and the matter was directed to be listed for hearing on 9.7.2002."
4. The judgement in Special Appeals directed the interim orders to continue till the disposal of the writ petition. Whereas the Special Appeal No. 256 of 2002 was allowed on 16.5.2002. The Special Appeal No. 264 of 2002 was allowed with same order on 20.5.2002.
5. In Writ Petition No. 1187 of 2002 by Sri Shiv Prakash Yadav and four others namely Ganesh Prasad Patel, Mewa Lal Yadav, Kailash Nath and Bansidhar Kanaujia, the petitioners filed a representation to the Commissioner, Rural Development U.P. claiming the appointments after a fresh select list was to be drawn in pursuance of judgement dated 17.8.2000. Their representations were rejected on the ground that all the 13 candidates belong to the category of OBC had joined and thus there is no vacancy left for candidates on the waiting list. These orders dated 5.9.2001 passed by the Commissioner, Rural Development U.P and the order dated 24.5.2001 passed by District Development Officer, Varanasi are under challenge in this writ petition. A further prayer is made to issue a writ of mandamus to prepare a fresh select list in accordance with the law.
6. In Writ Petition No. 23630 of 2003 by Sri Manu Ram and Santosh Seth, have prayed for appointment on the posts of VDOs in accordance with the fresh select list dated 6.5.2002 prepared by District Development Officer, Varanasi in pursuance of direction of learned Single Judge. During the pendency of the writ petition, a fresh select list was prepared on 10.3.1999. The petitioners have amended the writ petition by challenging the select list dated 10.3.1999.
7. In the counter affidavit of Sri Rajeev Narayan Tiwari filed in Writ Petition No. 23630 of 2003 it is stated that 43 posts of Gramya Vikas Adhikari/Gramya Vicas Panchyat Adhikari were advertised on 31.8.1998 by the District Development Officer, Varanasi. A select list was published vide notification dated 29.5.1999 with 18 names in general category (5 in waiting list), 13 names in OBC category (03 in waiting list) and 11 in SC/ST (04 in waiting list) and 01 as dependant freedom fighter. The roll number of each of the candidates was given in the notification. One post was kept vacant in pursuance of an order passed in Writ Petition No. 7817 of 1999 Rakesh Kumar Upadhyay v. District Development Officer. All the selected candidates in the list were sent for training. Respondent Nos. 4, 5, 6, 7, 8 and 9 were given appointments on 23.10.1999, while respondent 10 and 11 were appointed by orders dated 24.10.2001 and 8.2.2000 respectively. All the contesting respondents have joined and are continuously working and paid their salaries. Respondent No. 4 was transferred from Varanasi to District Ghaziabad and respondent No. 7 from Varanasi to Jaunpur in June 2001.
8. The facts stated in the judgement dated 27.7.2001 in Writ Petition No. 42041 of 2000 Han Ram Yadav v. State of U.P. are admitted. The relevant part of para 4 of the judgement is quoted as below;
"A perusal of the list will indicate that the O.B.C. Candidates have secured 57.41%, 53.43%, 52.48%, 51.80%, 51.25%, 51.21%, 50.89, 50.75%, 50.25%;, 49.83%, 49.83%, 49.30%, 49.30%, 48.89%, 48.89%, 48.87%., 47.92%, 47.92%, 47.67% and 47.43% marks while general candidates secured 56.59%, 54.38%, 54.34%, 53.87%, 53.63%, 53.46%, 43.27%, 53.22%, 52.21%, 51.92%, 50.73%, 50.31%, 49.64%, 49.27%, 48.77%, 48.70%, 48.56%, 48.33%, 48.32%, 48.32%, 48.31%, 48.18%, 48.07%, 47.98% and 47.93 marks respectively. Sri Ajai Kumar Singh who is at S. No. 1 in the list of general candidates had secured 56.59 marks whereas Manoj Kumar Yadav had secured 57.41% marks and yet he has been placed in the list of backward class candidates."
9. I have heard Sri Yatindra for the petitioners and Sri Ashok Khare, Senior Advocate assisted by Sri V.K. Singh for contesting respondents. Learned Standing Counsel appears for State respondents. Shri Khare has raised a preliminary objection about the delay in challenging the select list. He has also addressed the court and the parties have joined issue on the interpretation of Section 3 (6) of U.P. Act No. 4 of 1994. The relevant portion of Section 3 of U.P. Act No. 4 of 1994 for the purpose of this case is quoted as below;
10. Sri Yatindra appearing for the petitioners submit that the select list was drawn in contravention of Sub-section (6) of Section 3 of the Act of 1994. The candidates who had secured more marks than the general category candidates in the main list and in the waiting list could not be treated as reserved category candidates. The respondents under Section 3 (6) of the Act of 1994, were required to adjust them against the vacancies in general category. He submits that the select list was rightly set aside by judgement dated 27.7.2001 and was consequently correctly drawn by orders dated 6.5.2002.
11. The number of vacancies and validity of the process of selection is not in dispute.
12. Sri Yatindra submits that though the judgement in P.G.I. of Medical Education and Research Chandigarh and Ors. v. K.L. Narsimha , was overruled in PGI of Medical Education and Research Chandigarh and Ors. v. Faculty of Education the observations made on page 293 of the judgement in K.L. Narsimha's case were not overruled. The petitioners had not claimed the benefit of any exemption or relaxations in the selections as OBC category candidates, nor they were subjected to any separate process of selection. The selection process under the Rules of 1998 was common with general candidates with no benefit to the reserved category candidates, at any stage, either in written examination or in the interviews and thus Sub-section (3) of Section 6 of U.P. Act No. 4 of 1998 was clearly attracted. He has also relied upon judgement in Nareridra Pratap Singh and Ors. v. Director General of Police U.P. and Ors. 2002 3 UPLBEC 2304 in which this Court in para 12 had considered the effect of judgement in K.L. Narsimha's case (supra) as overruled in Faculty of Association and Ors.(supra), and held that the select list of Sub Inspectors was correctly prepared by adjusting selected candidates of OBC categories in general category on the basis of their merit. Sri Yatindra has also placed reliance upon judgement of Lucknow Bench of this Court in Ravindra Kumar Singh and Ors. v. State of U.P. (Writ Petition No. 5844 (SS) of 1999) decided on 11.2.2002. relating to selections of VDO in pursuance of advertisement dated 10.8.1998, published by District Development Officer Pratapgarh. In this judgement the expression 'Open Competition with general candidates' in Sub-section 6 of Section 3 of U.P. Act No. 1 of 1994 was discussed and it was found that the results declared in the written examination indicated that a separate criteria was adopted for examining the copies with respect to reserved category candidates and general candidates and therefore a separate merit list was prepared and the result of the written examination was declared category wise. Subsequently separate interviews were also held and the result was also declared separately, category wise of the selection and thus it could not be said to be a selection was a result of open competition with the general category candidates.
13. The preliminary objections raised by Sri Ashok Khare, Senior Advocate about the delay in filing writ petitions is not of much substance, as the merit list of the selections in pursuance of the advertisement dated 31.8.1998 was not challenged. The petitioners were placed in the waiting list. The select list was directed to be re-arranged by the judgment of the Court dated 27.7.2001, in accordance with Section 3(6) of U.P. Act No. 4 of 1994. The select list was re-drawn during the pendency of the appeal. The select list was thus in a state of flux and thus it cannot be said that the petitioners in Writ Petition No. 1187 of 2002 and Writ Petition No. 23630 of 2003 were negligent of such latches which have not been explained on record.
14. In M.R. Balaji v. State of Mysore a Constitution Bench of the Supreme Court held that reservations under Article 15(4) and 16(4) of the Constitution should be allowed to advance the prospects of weaker sections of the society. The interests of the weaker sections of the society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The objective of Article 15(4) is to advance the interests of the weaker elements in society. If a provision under Article 145(4) ignores the interests of the society that is clearly outside the purview of Article 15(4). A balance is to be struck so that interests of the backward classes and the members of SC/ST are properly balanced with the interests of the other segment of the society. In order to safeguard the interests of reserved classes the interest of the community as a whole cannot be ignored.
15. In T. Devadasan v. Union of India a majority decisions of the Constitution Bench declared the carry forward rule, as a result of which the applicants belong to SC/ST would get more than 50% of the vacancies to be filled in a particular year, as unconstitutional. It was held that Article 14 will not be infringed if a certain proportion of appointments of the State in order to provide to the backward classes an opportunity equal to that of the members of advanced classes is made, provided that the reservations is not so exercised which would amount to practically denying reasonable opportunity of employment to the members of the other communities. A reasonable balance must be struck between backward classes and other members of the society is to be struck and should be maintained.
16. In General Manager S.E. Railway v. Ramacharya , it was held that Articles 16(1) and 16(2) are intended to give effect to Article 14 and 15 of the Constitution and these Articles form parts of the same constitutional code of guarantees and supplement each other. Article 16(1) should not be construed in a pedantic and technical way. In Arati Ray Choudhury v. Union of India (1974) SCC 87, the roster prepared by the Railway Board in 1964 was under challenge, which reserved 12.5 % vacancies for Scheduled Castes and 5% for Scheduled Tribes. It provided that if there was only a single vacancy, then it should be treated as unreserved and then the reservation should be carried forward to the subsequent recruitment years. Relying upon Balaji's case, the Supreme Court struck down as unconstitutional an order by which 68% of the seats in educational institutions were reserved for SC/ST and Other Educationally and Socially Backward Classes. It was held that the reservation for backward communities should not be so excessive as to create the monopoly and to disturb unduly the legitimate claims of other communities.
17. The observations in para 5 (page 293) in K.L. Narsimhan's case (supra), did not arise from the facts of the case under consideration by the Supreme Court. The issue involved in the case was the recruitment to the post of Assistant Professors in various Faculties in the appellant Post Graduate Institution, Chandigarh and admission to specialities and super specialities. In para 5 of the report after observing that no relaxation in respect of qualifications or experience was recommended by the Scrutiny Committee in any of the applications and the faculty posts should be reserved without mentioning the speciality, it was observed that, it is settled law that if a Dalit and Tribe candidates got selected for admission to a test or for appointment to a post on the basis of merit as general candidate he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of the eligibility criteria should be treated as reserved candidate. These observations were made in considering the issue raised, whether a single post could be reserved. These observations should not be read in a matter to give benefits to those candidates who have been selected after opting to compete in reserved category candidates, to be adjusted in the general category.
18. The provisions of Sub-section 6 of Section 3 of U.P. Act No. 4 of 1994 are absolutely clear and admit no ambiguity. A plain and grammatical interpretation of Sub-section (3) means that if a person belonging to the categories mentioned in Sub-section (1), namely SC/ST/OBC, gets selected on the basis of merit in an open competition with general candidats, he shall not be adjusted against the vacancies reserved for such categories under Sub-section (1). The words, 'Gets selected on the basis of merit in an open competition with general candidates', means that the selection should be based on merits, competing with general candidates. The U.P. Act No. 4 of 1994 provides for 27% reservation for OBC, 21% SC and 02% for ST. A backward class candidate may not like to compete in his own category restricted to only 27% posts. He may opt to compete on the basis of merit in an open competition with the general candidate on 50% posts (leaving reserved categories). If he so chooses to compete with general category candidates, he shall not be adjusted against the vacancies reserved in his category. Sub-section (6) of Section 3 gives an option to a reserved category candidate to compete either in his own category or with general category candidate in an open competition. Any other interpretation will not only disturb the balance, of the extent of reservation provided under the Act, but will also disturb the interest of other claimants of the society namely the general category candidates. The object of reservations as explained by Constitution Benches in M.R. Balaji, T. Devadasan Aarti Ray Choudhury and other cases is not to give any extraordinary benefit or to advance the cause of the reserved categories as against the general category. The object is to protect the interest of weaker section of the society by providing reservations in services while balancing interest of other segments of the society. The observations on page 293 in K.L. Narsimhan's case were as such rightly not discussed or considered in the Faculty of Association's case. In fact there was no need to do so.
19. Learned counsel for the parties did not refer to any case decided by Supreme Court, which may interpret the legal position to the contrary. In the present case the merit lists were correctly drawn. The candidates who had opted to compete in the category of OBC candidates were placed in a separate list. In case OBC category candidates, who have secured higher marks then the general category candidates are adjusted in general category, the entire Scheme of reservation and the balance as provided in Sub-section (1) of Section 3 of U.P. Act No. 4 of 1994 will be disturbed. In such a case eight candidates out of the list of OBC category, will be adjusted in the general category and thereby increasing the number of OBC candidates selected much beyond the 27%, of the posts in the selections.
20. While protecting the interest of weaker sections of the society the interests of the other sections of the society cannot be ignored. The object of providing reservations as an affirmative action is to allow those who are historically weaker and disadvantaged and to give them a chance to compete with favourably placed persons in society. Such an object however landable and socially correct as it may be, cannot be stretched too far, to adjust those who have competed in their own category, but have secured higher marks, in general category and to distrubn the entire balance. It is always open to reserved category candidates to give up the benefit of reservation and to compete with general category to take a chance on larger share of posts, or to compete in their own category either with or without relaxation of age or other exemptions and a separate procedure of selection if it is so provided. However having decided to compete in their own category, they cannot claim to be adjusted in general category and thereby disturbing the balance and endangering the ratio and proportion of different categories of candidates.
21. The special provisions of reservations provided under Article 15(4) and 16(4) may not to be stretched too far, to cause reverse discrimination. The reservations for SC/ST and Other Backward Classes have already exhausted the time period conceded by the Constitution makers. It is not for this Court to go into the wisdom of the Parliament or the State Assemblies to continue the provisions for reservations even after 55 years, since the Constitution was adopted, enacted and given to ourselves. The Courts provided with the task to interpret the Constitution have to guard the interests of all the sections of the society and should not stand in the dock, to be accused of interpreting the laws only in favour of those, for which special provisions have been made under Article 15(4) and 16(4) of Constitution of India. Once the SC/ST and Backward Classes are identified and claim reservations provided for them under Article 15(4) and 16(4) of Constitution of India, the delicate balance must be maintained. In para 32 of the judgment in Post Graduate Institute of Medical Education v. Faculty Association (supra), clarifying the evolution of law of reservation is, the ¦ Constitution Bench in its unanimous opinion, observed;
"32 Article 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji case, Devadasan case and Sabharwal case. Even in Indra Sawhney case the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram and D.A. Rajendra v. Union of India. It has been indicated in Indra Sawhney case that Clause (4) of Article 16 is not in the nature of an exception to clauses (1) and (2) of Article 16 but an instance of classification permitted by Clause (1). It has also been indicated in the said decision that Clause (4) of Article 16 does not cover the entire field covered by clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in Clause (1) of Article 16 is to be reconciled in favour of backward classes under Clause (4) of Argcle 16 in such a manner that the latter while serving the cause of bakcward classes shall not unreasonably encroach upon the field of equality."
22. A close examination of the provisions of reservation in the U.P. Act No. 4 of 1994, shows that the fences dividing the categories have been raised to such levels that these categories are not allowed to cross or jump over them. The provisions of dereservation where posts reserved for SC/OBC could not be filled even after efforts of several years, have been deleted or amended, where all the reserved posts could not be filled in a recruitment year special recruitment is provided in Sub-section (4) and Section 3, over and beyond 50% of reserved posts. The same fences cannot be allwoed to be scaled by adjutment of OBC candidates in General Category. The channels must be allowed to flow freely, without any interference.
23. In Narendra Pratap Singh's case (supra) the Court was concerned with the relaxation which may have been provided to reserved category candidates. The court proceeded to the basis that the observations in K.L. Narsimha's case have not been overruled. It did not consider the submissions with regard to reverse discrimination and disturbing the balance between reserved category and general category candidates, for which clear directions have been issued in M.R. Balaji, T. N. Devdasan and Aarti Ray Chaudhury. In Faculty of Association's case the Constitution Bench had clearly over-ruled the ratio of the judgment in K.L. Narsimhan's case decided by three Hon'ble Judges of the Supreme Court. An obiter may not be raised to the status of ratio decidendi on the ground that it was not specifically overuled.
24. Recently the selections on posts and adjustment of OBC candidates in general categories misinterpreting Sub-section (6) of Section 3 of U.P. Act No. 4 of 1994, have raised serious issues dividing the society. Over zealous appointing authorities, in order to please political bosses are further dividing the society on caste lines. The Constitution Benches of Supreme Court have repeatedly held that reservations should not be stretched too far to break down the social structure. It has, therefore, become absolutely necessary for this Court to decide and hold that sub Section (6) of Section 3 of U.P. Act No. 4 of 1994 cannot be interpreted in a manner, that those who have competed in their own reserved categories are entitled to be adjusted with general candidates, if they have secured higher marks on merits. The Court as such holds that having chosen to compete in his category even if the reserved category does not claim any exemption or is not given any advantage in selection, secures higher marks than the general candidates is not entitled to be adjusted with the general candidates. A reserved category candidate has to give his option at the time of making an application and to choose, the category in which he competes and having chosen to do so he cannot claim adjustment with general category candidates on the basis of his merit.
25. All the three writ petitions are consequently dismissed. The first select list is declared to be validly drawn in accordance with law. The appointments made contrary to the first select list shall be ceased. No order as to costs.