In CIVIL APPEAL NO.8717 OF 2015-SC- Reserved category candidates securing higher marks than general category candidates, are entitled to appointment in general category: Supreme Court Justices M.R. Shah & B.V. Nagarathna [28-04-2022]

Read Judgment: Bharat Sanchar Nigam Limited & Anr v. Sandeep Choudhary & Ors 

Tulip Kanth

New Delhi, April 29, 2022:  Reiterating that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories, the Supreme Court has affirmed the Rajasthan High Court’s view that the two reserved category candidates, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar, having more marks than the general category candidates were entitled to the appointment in the general category.

The Division Bench of Justice M.R.Shah and Justice B.V.Nagarathna opined that the aforementioned two candidates were required to be adjusted against the general category as admittedly they were more meritorious than the last of the appointed general category candidates.

The factual scenario of this case was such that the first private respondent herein (original applicant) applied for the post of Telecom Technical Assistants (TTAs) in pursuance to the notification issued by BSNL for filling up of TTA posts. The appointment was to be made by way of direct recruitment by open competitive examination in the Rajasthan Telecom Circle. The dispute in the present case relates to the Ajmer SSA(Secondary Switching Area).

In the competitive exams, it so happened that no person from the general category candidate got more than 40% marks. However, four candidates from OBC category obtained more than 33% marks.The original applicant was placed at waiting list no.1 in the OBC category.

As there was an acute shortage of manpower, it was decided to relax the qualifying marks by 10% for all candidates. Accordingly, the qualifying marks were refixed at 30% for general category and 23% for reserved category. One Alok Kumar Yadav and Alka Saini, who were found to be more meritorious than the general category candidates and subsequently were found eligible to be appointed against the reserved category – OBC. Therefore, the first respondent-original applicant, who was waitlisted approached the Tribunal for a direction to prepare a fresh list for all candidates based on relaxed standard and act on the said combined merit list.

The Tribunal directed BSNL to consider the candidature of the original applicant – respondent, if sufficient vacancies existed for placement of the candidates of OBC and further his candidature to be considered against the present and future vacancies on OBC category. When BSNL preferred the writ petition before the High Court, the same was dismissed by observing that the BSNL should have given appointment to Mr. Alok Kumar Yadav and Mr. Dinesh Kumar (candidates belonging to OBC category) against the vacancies which were not reserved vertically in the event of shuffling the said two persons to general category (admittedly both the aforesaid candidates secured and/or had more merit than the general category candidates, who were appointed). The High Court had further observed that consequently the original applicant could have been selected against the vacancies reserved for the OBC. Hence, BSNL preferred the present appeal.

The Division Bench referred to the decision of the Top Court in Saurav Yadav Vs. State of U.P., wherein it was observed that candidates belonging to any of the vertical reservation categories are entitled to be selected in open or general category and if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories that they belong.

Another decision referred to was to the one of the Apex Court in Sadhana Singh Dangi Vs. Pinki Asati wherein it has been reiterated that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. It was  further observed and held that even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It was further observed therein that the candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so.

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand,the Bench said, “…it is noted that the aforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar, belonging to OBC category, were required to be adjusted against the general category as admittedly they were more meritorious than the last of the general category candidates appointed and that their appointments could not have been considered against the seats meant for reserved category.”

It was held that after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as first respondent herein. If such a procedure would have been followed, the original applicant – first respondent would have been appointed on merit in the reserved category seats in the vacancy caused due to the above procedure. 

Therefore,the Top Court concluded that the High Court had not committed any error in observing and holding that the aforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar, will have to be adjusted against the general category candidates and accordingly first respondent being a reserved category candidate and being at Sr. No.1 in the waiting list of reserved category was to be appointed.

The Bench asserted, “The High Court has rightly observed and held that two reserved category candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar having more marks than the general category candidates appointed, were entitled to the appointment in the general category and the seats reserved for OBC category were required to be filled in from and amongst the remaining candidates belonging to the OBC category.”

Also, in order to strike a balance, the Bench held that the first respondent-original applicant was entitled to the appointment on such post. However, at the same time in exercise of the powers under Article 142 of the Constitution of India, it was observed and directed that on reshuffling, the two candidates belonging to general category shall not be removed from service as they have been working since long. However it was directed that the first respondent shall be entitled to the seniority from the date, the general category candidates having lesser marks than the aforesaid two reserved category candidates were appointed.

With these observations and directions, the Bench dismissed the Appeal.