Hon'ble C.K. Prasad, CJ Hon'ble Pankaj Mithal, J Writ petitioner-appellant, aggrieved by order dated 26.11.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No.35839 of 2004, has preferred this special appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules.
Shorn of unnecessary details facts giving rise to the present appeal are that in response to the advertisement made by the U.P. Public Service Commission for appointment to the post of Workshop Instructor, the writ petitioner-appellant (hereinafter called as 'the writ petitioner') as also a large number of candidates offered their candidatures. After usual process of selection, the Public Service Commission published the list of selected candidates on 24.12.2003. The name of writ petitioner does not find place in that. He challenged the select list alleging that out of 17 general posts, 12 posts have been filled-up from the candidates belonging to the reserved category, which is impermissible in law and accordingly, prayer was made to quash the list. It is not the case of the writ petitioner that advertisement itself provided for reservation to the extent indicated above. The writ petitioner's prayer was resisted on the ground that the candidates of reserved category, who had secured equal marks or more marks than the marks secured by the 2 last selected candidate of the general category, have been appointed and those will not account for in the reserved category. The submission made by the writ petitioner did not find favour with the learned Single Judge and he dismissed the writ application, inter alia, observing as follows:-
"As per the provisions quoted above, in case a candidate of reserve category has received marks equivalent or higher marks than the general category candidate, then his/her candidature has to be considered as general candidate. In the present case exactly this has been done and the 12 candidates of reserve category have secured more marks than the general category candidates, as such they have been treated as general category candidates on account of this mandatory provision of Section 3 (6) U.P. Act No.4 of 1994. Ceiling of 50% to reserve category candidates in no way is applicable, inasmuch as the selection of reserve category candidates, in the present case, against quota meant for general category candidates, cannot be treated to be exceeding the quota of 50% provided for under the reservation. This ground raised by the petitioner is unsustainable and cannot be subscribed."
Mr. Pandey, appearing on behalf of the writ petitioner, submits that the reservation of more than 50% posts in favour of reserved category is a fraud on the Constitution and on this ground alone, the select list is fit to be quashed. In support of the submission, reliance has been placed on the Judgement of the Supreme Court in the case of M.R. Balaji and others Vs. State of Mysore [1963 (Suppl.) SCR 439] and our attention has been drawn to the following passage from the said judgement:-
" It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Art. 15 (4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15 (4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15 (4)."
Reliance has also been placed on a Constitution Bench judgement of the Supreme Court in the case of Indra Sawhney v. Union of India [1992 Supp. (3) SCC 217, and our attention has been drawn to paragraph 178 of the judgement, which reads as follows:-
"178. It was for the first time that this Court in Balaji has indicated broadly that the reservation should be less than 50% and the question how much less than 50% would depend on the relevant prevailing circumstances in each case. Though in Balaji the issue in dispute related only to the reservation prescribed for admissions in the medical college from the educationally and socially backward classes, Scheduled Castes and Scheduled Tribes as being violative of Article 15 (4), this Court after 4 expressing its view that it should be less than 50% observed further that "[T] he provisions of Article 15 (4) are similar to those of Article 16 (4) .... Therefore, what is true in regard to Article 15 (4) is equally true in regard to Article 16 (4)... reservation made under Article 16 (4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution." (SCR pp. 473-
74) This decision has gone further holding that the reservation of 68% seats made in that case was offending Article 15 (4) of the Constitution. To say in other words, Balaji has fixed that the maximum limit of reservation all put together should not exceed 50% and if it exceeds, it is nothing but a fraud on the Constitution. Even at the threshold, I may emphatically state that I am unable to agree with the proposition fixing the reservation for SEBCs at 50% as the maximum limit."
Yet, another decision on which reliance has been placed, is a Division Bench decision of this Court in Prana Vir Singh (Dr.) v. Chancellor, Chandra Shekhar Azad University of Agriculture and Technology, Lucknow and others, [(2004) 2 UPLBEC 1445] and our attention has been drawn to paragraph 12 of the judgement, which reads as follows:-
"12. From the facts of the case it appears that initially there were nine posts of Subject Matter Specialist (Yield Production), which had been advertised by Annexure-2 to the writ petition. Out of these nine posts two were reserved for Scheduled Caste and three for other Backward Class and four posts were in general category.
In our opinion, this reservation of five out of nine posts was clearly illegal as it exceeded 50% maximum permissible limit of reservation. In the Constitution Bench decision of the Supreme Court in P.G. Institute of Medical Education and Research v. Faculty Association, JT 1998 (3) SC 223, it has been observed (vide Para 31)".
Reference has also been made to an unreported decision of this Court dated 13.8.2008 passed in Civil Misc. Writ Petition No.190 of 2006 (Dr. Shailendra Singh Vs. State of U.P. and another). In the said case, it has been held as follows:-
"We therefore find that the post reserved for scheduled caste on which Dr. Permanand T Dudhey was selected was in excess of the percentage of reservation for scheduled caste candidate."
We do not find any substance in the submission of Mr. Pandey, and the decisions relied on are clearly distinguishable.
It is not the case of the writ petitioner that out of 17 posts, 12 have been filled-up from amongst the members of the reserved category on the basis of any concession given to them. It seems that all these persons have qualified with the members of the general category and have been selected on merit. In our constitutional scheme, there is no reservation for the members of the general category and the reservation is for the members of the reserved category, i.e., Scheduled Caste, Scheduled Tribe, and Other Backward Classes. The Constitution does not provide that the vacancies, which are not reserved have to be filled-up by the members of the general category. The 6 members of the reserved category can claim appointment on merit for the posts, which are not reserved, but the converse is not true. The members of the general category cannot be considered for appointment on reserved posts. Under the scheme of the Constitution, no such reservation in favour of the general category has been provided.
It is relevant here to state that the State Legislature has enacted the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, to provide for the reservation in public services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens. Section 3 (6) of the aforesaid Act, which is relevant for the purpose, reads as follows:-
"3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes.-
xx xx xx (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).
From a plain reading of the aforesaid provision, it is evident that if a person belonging to any of the reserved categories, gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancy reserved for such category. Therefore, such of the candidate of the reserved category selected on the basis of merit in an open competition with general category, shall not be accounted for for calculating 7 the percentage of reservation.
In that view of the matter, the very plea of the writ petitioner that more than 50% of the posts have been reserved for the members of the reserved category, is absolutely fallacious. Merely the fact that more than 50% of the persons belonging to reserved category have been appointed, will not mean that reservation had exceeded 50% of the vacancies and had exceeded the same. De jure reservation of more than 50%, ordinarily may not be permissible, but de facto it may be possible that more than 50% of the posts are filled by members of the reserved category on merit, as had happened in the present case.
It is not the case of the writ petitioner that any candidate belonging to his category and having secured less marks than him, has been appointed and the writ petitioner left out. His very comparison with the members of the other categories, who have been appointed on the seat reserved for them, is absolutely misconceived.
Now referring to the decision of the Supreme Court in M.R. Balaji (supra), the same is clearly distinguishable. In the said case, the reservation of more than 50% was held to be fraud on the Constitution. Here, reservation has not been provided exceeding 50% of the posts. As stated earlier, more than 50% of the posts have been filled-up by the members of the reserved category, not by giving any concession to them, but on account of the fact that they had competed and qualified along with the members of the general category. For the same reason, all the decisions relied on by the writ petitioner are clearly distinguishable and they do not support the writ petitioner's contention. 8
However, we hasten to add that appointment of a large number of candidates belonging to the reserved category in the general category on merit, may be a ground to reconsider the policy of reservation, but it cannot be said that those members of the reserved category who have been appointed on merit, in the face of the language of Section 3 (6) of the Act, 1994, have to be counted amongst the members of the reserved category.
We are of the opinion that the consideration of the matter by the learned Single Judge does not suffer from any error calling for interference in this appeal.
We do not find any merit in the appeal and it is dismissed, accordingly. Dt/-12.1.2010 RKK/-
(C.K. Prasad, CJ) (Pankaj Mithal, J)