Supreme Court: In a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process, the bench of MR Shah* and BV Nagarathna, JJ exercised its powers under Article 142 of the Constitution of India to do complete justice to all the candidates involved.
BSNL issued notification in 2008 for filling up the post of Telecom Technical Assistants (TTAs). The recruitment was to be made by conducting a competitive examination of eligible candidates in an objective type paper of 200 marks. However, in the exam which was conducted no person from general category candidate got more than 40% marks. However, four candidates from OBC category obtained more than 33% marks.
Despite the poor pass percentage of candidates in the TTA examination, BSNL relaxed the qualifying marks by 10% for all candidates owing to the acute shortage of manpower. Accordingly, the qualifying marks were refixed at 30% for general category and 23% for reserved category.
However, two candidates, who were found to be more meritorious than the general category candidates subsequently were found eligible to be appointed against the reserved category – OBC. Therefore, the respondent No.1, who was wait listed No.1 in OBC category, 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. It was, inter alia, pleaded that there cannot be two cut-off marks for a single selection. It was submitted that there was an unreasonable classification by providing another set of cut-off marks and the action was discriminatory and violative of Articles 14 and 16 of the Constitution of India.
It was the case on behalf of the original applicant that those two candidates belonging to OBC category, who were having more merit were required to be adjusted against the general category seats and consequently the seats reserved for OBC category were required to be filled in from remaining reserved category candidates on merit.
Tribunal directed BSNL to consider the candidature of the respondent No.1, if sufficient vacancies exist for placement of the candidates of OBC and further his candidature shall be considered against the present and future vacancies on OBC category.
High Court’s Ruling
Rajasthan High Court dismissed the writ petition preferred by BSNL by observing that the BSNL should have given appointment to the two 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 candidates have secured and/or have more merit than the general category candidates, who were appointed). The High Court further observed that consequently the respondent no. 1 could have been selected against the vacancies reserved for the OBC.
Supreme Court’s Ruling
When the matter reached the Supreme Court, various decisions were taken note of wherein it was held 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. Further, 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 is further observed 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 the Supreme Court in various decisions to the facts of the case on hand, the Court noted that the two candidates, namely, Alok Kumar Yadav and 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. Consequently, 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 respondent No.1.
“If such a procedure would have been followed, the original applicant – respondent No.1 would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure.”
Therefore, the findings of the High Court were upheld.
The Court, however, was also alive to the fact that by reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed shall have to be expelled and/or shall have to be removed, who are working since long and it may unsettle the entire selection process. Therefore, to strike a balance and to ensure that the two general category candidates, who are already appointed will not have to be removed and at the same time, respondent No.1 being a reserved category candidate also gets accommodated, if he is so appointed, in exercise of the powers under Article 142 of the Constitution of India, the Court ordered that on reshuffling and on respondent No.1 being appointed now against the reserved category seats and while the Alok Kumar Yadav and Dinesh Kumar, belonging to reserved category, to be treated in the general category seats, two candidates already appointed and belonging to general category shall not be removed. However, respondent No.1 shall get the seniority from the date the general category candidates were appointed, who were having lesser merit than Alok Kumar Yadav and Dinesh Kumar.
[Bharat Sanchar Nigam Ltd. Sandeep Choudhary, 2022 SCC OnLine SC 524, decided on 28.04.2022]
*Judgment by: Justice MR Shah
Amicus curiae: Senior Advocate Dr. Rajeev Dhavan and Advocate Gaurav Agrawal
For BSNL: Advocate Pradeep Kumar Mathur
For respondent no.1: Advocate Puneet Jain