{"id":245163,"date":"2021-03-06T17:48:20","date_gmt":"2021-03-06T12:18:20","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=245163"},"modified":"2021-03-12T11:07:27","modified_gmt":"2021-03-12T05:37:27","slug":"reservation-and-filling-up-of-backlog-vacancies-sc-explains-applicability-of-section-27f-of-the-tamil-nadu-government-servants-conditions-of-service-act-2016","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/03\/06\/reservation-and-filling-up-of-backlog-vacancies-sc-explains-applicability-of-section-27f-of-the-tamil-nadu-government-servants-conditions-of-service-act-2016\/","title":{"rendered":"Reservation and filling up of backlog vacancies: SC explains applicability of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016"},"content":{"rendered":"

Supreme Court<\/strong>: In the case relating to appointment to the post of Post Graduate Assistants in Chemistry departments for the year 2018-2019 in Tamil Nadu, the 3-judge bench of Sanjay Kishan Kaul<\/strong>*, Dinesh Maheshwari and Hrishikesh Roy, JJ was posed with the question as to whether the candidates who secured high marks should have been fitted in the General Turn but have been fitted in Most Backward Class (MBC)\/ Denotified Community (DNC) Quota for the last year, which in turn has deprived certain candidates of selection.<\/p>\n

The Court held that the increase in MBC\/DNC candidates does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India. Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC\/DNC categories, if those seats would have remained vacant.<\/p>\n

The Court, however, clarified that these observations were in the context of the controversy before it as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration.<\/p>\n

Background <\/strong><\/span><\/h3>\n

Notification was issued on 12.06.2019 by the Teachers\u2019 Recruitment Board, inviting applications online from eligible candidates for direct recruitment to the post of Post Graduate Assistants and Physical Education Directors, Grade-I in school education and other departments for the year 2018-2019 in Tamil Nadu. The filling up of vacancies for the post of Post Graduate Assistants in Chemistry has caused some disputes in which the respondents were applicants. In terms of the notification, a total of 356 posts were notified for Chemistry, out of which 117 vacancies were available for Most Backward Class (MBC) and Denotified Community (DNC) candidates. The break-up of 117 vacancies was of 74 backlog vacancies and 43 current vacancies.<\/p>\n

The respondents, among other candidates, applied for the aforementioned post online and appeared in the written examination on 28.09.2019. Post verification of certificates, a provisional selection list was published on 20.11.2019, but the names of the respondents were absent.<\/p>\n

The respondents claimed that on scrutinizing the list, they found that the meritorious candidates under the MBC quota, who would have been selected irrespective of any reservation, had not been considered under the general vacancies but had been appointed in the MBC\/DNC quota against the backlog vacancies. This had caused the respondents not to be appointed. It was their case that the meritorious candidates were required to be adjusted against vacancies on merit in the General Turn, and it is only thereafter that the backlog vacancies had to be filled in and thereafter, lastly, the current vacancies under the quota had to be adjusted.<\/p>\n

Analysis <\/strong><\/span><\/h3>\n

The Court agreed with the findings of the single and division bench of the Madras High Court, both and explained that the controversy revolved around the interpretation of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.<\/p>\n

The Section propagates the social philosophy of vacancies for reserved category not lapsing in case there are inadequate number of candidates<\/em><\/strong>. Thus, instead of offering it to the general category, a provision has been made to carry forward those vacancies for one year. In case even in the succeeding year, these vacancies are not filled in, then it goes to other categories.<\/p>\n

The Single Bench explained that the crucial issue arises from the last sentence of third proviso to Section 27(f) which provides for the selection of appointment for the next direct recruitment to be made \u201cfirst for backlog vacancies and then the normal rotation shall be followed\u201d. Meaning, thus, has to be assigned to what is implied by the expression \u201cfirst\u201d vis-\u00e0-vis the backlog vacancies.<\/p>\n

Section 27(f) merely states that if the required number of candidates belonging to the community which fall under reservation are not available, then, the vacancies, for which selection could not be made in the current year, should be treated as backlog vacancies. In the subsequent recruitment, the backlog vacancies and the current vacancies for the particular community must be separately announced, and the direct recruitment must first accommodate the backlog vacancies and thereafter only, the current vacancies have to be accommodated.<\/p>\n

\n

\u201cThe provision had been read by the appellants as if the backlog vacancies must be filled in by MBC\/DNC category candidates, irrespective of the merit of the candidate or the rank secured by him\/her. The highest mark that was secured was 109 and, up to 90 marks, the candidates were fitted in General Turn and thus those candidates will have to be selected under the General Turn, irrespective of their community. It is these candidates who had been fitted in the backlog vacancy which has caused the problem.\u201d<\/span><\/p>\n<\/blockquote>\n

The Division Bench vide the impugned order also opined in the same terms and agreed with the interpretation of Section 27 of the Act by further observing that the proviso which contains the word \u201cfirst\u201d does not have any relation to the offer and placement of such reserved category candidates, including, Most Backward Classes who attain their position by way of merit in the open category\/General Turn vacancies.<\/p>\n

Agreeing to both the opinions, the Court said,<\/p>\n

\n

\u201cThe principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt or argued in view of the catena of judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be read in a manner, apart from any other reason, to negate this very principle.\u201d<\/span><\/p>\n<\/blockquote>\n

It explained that Section 27 deals with the reservation. It has nothing to do with the general candidates list\/ General Turn vacancies.<\/p>\n

\n

\u201cSuch of the candidates who have made it on their own merit albeit, from reserved category, have not sought the benefit of the reservation. Thus, Section 27 of the Act would have nothing to do up to that point. Section 27 would apply only when the reservation principle begins, which is after filling up of the seats on merit.\u201d<\/span><\/p>\n<\/blockquote>\n

Thus, the word \u201cfirst\u201d would apply at that stage, i.e., the backlog vacancies have to be filled in first and the current vacancies to be filled in thereafter. At the stage when the general category seats are being filled, there is thus no question of any carry forward or current vacancies for reserved category arising at all.<\/p>\n

The Court, in Saurav Yadav v. State of Uttar Pradesh, 2020 SCC OnLine SC 1034<\/a><\/strong>, stated the steps which have to be taken to fill in the vacancies:<\/p>\n

(a) the general merit list to be first filled in;<\/p>\n

(b) the backlog vacancies of the particular reserved category to be thereafter filled in “first\u201d; and<\/p>\n

(c) the remaining reserved vacancies for the current year to be filled thereafter.<\/p>\n

Considering this, the Court said that it appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in.<\/p>\n

\n

\u201cThe performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect!\u201d<\/span><\/p>\n<\/blockquote>\n

Hence, it was held that the increase in MBC\/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.<\/p>\n

[State of Tamil Nadu v. K. Shobhna,\u00a0 2021 SCC OnLine SC 179<\/b><\/a>, decided on 05.03.2021]<\/p>\n

\n

*Judgment by: Justice Sanjay Kishan Kaul<\/span><\/strong><\/p>\n

Know Thy Judge| Justice Sanjay Kishan Kaul<\/a><\/p><\/blockquote>\n