In CWP-2667-2022 (O&M)-PUNJ HC- Candidate found ineligible under reserved category but obtaining higher marks than last selected candidate in general category, has right of selection under general category: P&H HC Justice Arun Monga [28-04-2022]

Read Order: Om Roj v. Haryana Staff Selection Commission and Others

Monika Rahar

Chandigarh, June 6, 2022: While dealing with a case wherein a candidate who applied under the EWS category with an invalid reservation certificate was denied an appointment even after obtaining higher marks than the last selected candidate in the general category, the Punjab and Haryana High Court has held that once the merit list is prepared for the general or open category and if any candidate, who has applied under the reserved category and is not considered eligible but obtained higher marks than the last selected candidate in the general category, even then he has a right of selection and appointment under general category. 

The Bench of Justice Arun Monga has further held, “No doubt, reservation is envisaged on the basis of backward class under Sub Article (4), but in case a candidate is not found or found entitled to the reservation, by no stretch of imagination Article 16 is to be interpreted so as to mean that right of a candidate to be considered in open general category is taken away. If that were to be done, the same would be also violative of Article 14 of the Constitution of India, apart from Article 16(1) itself.”

Here, the Court was dealing with a writ in the nature of mandamus directing the Haryana Staff Selection Commission (HSSC) to consider the claim of the petitioner for selection and appointment as Veterinary Livestock Development Assistant (VLDA) against the general category for having obtained higher marks than the last selected candidate in the general category. 

Succinctly, the facts of the matter are such that the petitioner, an EWS category candidate, applied for the post of VLDA under the EWS category and appeared in the written examination. As per the final result, the last selected candidate in the general category obtained 70 marks and the last selected candidate in EWS got 58 marks. However, the petitioner with 79 marks was not selected in either of the categories. Petitioner submitted written representation but to no avail. Hence, the instant petition.

The case, as advanced by the Counsel for the petitioner was that, once the petitioner obtained 79 marks i.e. more than the last selected candidate in General Category, who secured 70 marks, he ought to have been considered first under General Category. The Counsel further contended that even if the EWS Category certificate of the petitioner was held to be not valid, he still had a right of consideration under the General Category. 

Per contra, the Deputy Advocate General contended that since the petitioner applied under EWS reserved category, thus he could not be considered for the general category. His EWS certificate was found invalid, rendering him ineligible for said category. Thus, the Counsel added that he could not be considered for selection either in EWS reserved or general category. 

Having heard rival contentions, the Court held at the very outset that it was rather appalling to see the conduct of the respondents in denying the benefit of what is envisaged under Article 16 of the Constitution of India. 

Elaborating on the settled law, the Court held that first and foremost, once the merit list is prepared for the general or open category and if any candidate, who has applied under the reserved category and is not considered eligible, but obtained higher marks than the last selected candidate in the general category, even then he has a right of selection and appointment under general category. 

Thus, in light of the above, the Court held that the petitioner, even if not given the benefit of EWS reservation, is eligible to be considered in the General Category as he got more marks i.e. 79 marks as against the last selected candidate in the general category, who scored 70 marks.

Further, it was observed by Justice Monga that no doubt, reservation is envisaged on the basis of the backward class under Sub-Article (4), but in case a candidate is not found or found entitled to the reservation, by no stretch of imagination Article 16 is to be interpreted so as to mean that right of a candidate to be considered in open general category is taken away. 

“If that were to be done, the same would be also violative of Article 14 of the Constitution of India, apart from Article 16(1) itself”, opined the Bench. 

Coming back to the present case, the Court added that in the event, it is the same selection pursuant to the same very advertisement, then first and foremost all the candidates according to their merit are to be adjusted in the open General Category and that only after all the general category seats are filled up, that the other various vertical categories of the reservation shall then open up for the reserved category candidates in accordance with the merit list. 

“The contrary conduct of the respondents perhaps is deliberate to indulge in favouritism, and is strongly deprecated”, remarked Justice Monga. 

Thus, the Court held that the petitioner was entitled to consideration of his claim against a vacancy in the General Category on the basis of his merit in the said category. Accordingly, the writ petition was allowed to that extent and respondents were directed to consider the candidature of the petitioner in the general category in accordance with the marks obtained by him and proceed further in accordance with the law.