In the Mandal II judgment, Justice Raveendran raised an interesting issue, but left it unanswered. It was whether the OBC candidates, if selected under the merit list, should be counted against OBC reservation, or under the general category. Tomorrow, (May 19) an interesting SLP is coming up as a fresh matter before the Vacation Bench of Justice C.K.Thakker and Lokeshwar Singh Panta in the matter of Union of India v. Ramesh Ram and Ors. (SLP [c] No.13571/13572/2008). This SLP is against the Madras High Court judgment, delivered on March 20. In the case before the Madras High Court, the challenge was to the amended Rule 16(2) of Civil Service Examination Rules. The facts of the case can be gathered from the judgment, being linked here.
In the SLP before the Supreme Court, the Union of India has stated:
“If the benefit of reservation is denied to an SC/ST/OBC candidate who qualifies on merit, then there can be a situation where a lower ranked OBC candidate gets allocated to a better service than a higher ranked OBC candidate only because the higher ranked candidate performed well enough to qualify in the general/unreserved category. Such a situation is anomalous.”
The Madras High Court judgment refers to Supreme Court’s judgment in Indra Sawhney (1992) case, as having stated as follows:
“In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates”.
In its judgment, the Madras High Court noted that the whole contention of the Government of India in support of the impugned Rule 16(2) is that it better serves the purpose of reservation for reserved category candidates to get a service of higher choice in the order of their preference, ignoring the basic principle upheld by Supreme Court and even admitted by the Government of India in para No. 4 of their affidavit, that the normal policy of the reservation stipulates that the reserved category candidates, do have right to compete for unreserved seats.
The Court said: “In the case on hand, admittedly, 31 OBC and 1 SC candidate have got selected on their own merit and they have not availed any relaxed standards, so as to bring them within the folder of ‘reserved category’. Except for the fact that they hail from SC and OBC categories, they cannot be branded as ‘reserved category’ since their selection was on their own merit. If they are to be treated as ‘reserved category’ for any purpose, much less as mandated by the impugned Rule 16(2), it will put a stumbling block to the other ‘reserved category’, since their selection is definitely affected.
“ To explain, even though these 31 OBC and 1 SC candidate were selected on their own merit, instead of accommodating them within the 210 unreserved candidates, if they are accommodated in the 117 OBC and 66 SC candidates, definitely, the same number of candidates who could get selection under the relaxed standards, are being denied the postings, as in the case on hand. It is to be held that there cannot be any dispute with the proposition that if a candidate is entitled to be selected on the basis of his own merit, then, such selection should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4) of the Constitution.
“It is clear that though it is stated that the impugned Rule 16(2) was introduced with a laudable object of subserving the purpose of the SC/ST/OBC candidates included in the unreserved merit list, practically it is working detrimental to the interest of the SC/ST/OBC candidates, who are claiming appointments as per the notification dated 4.12.2004 issued by the UPSC under the reserved categories. Therefore, the said impugned Rule 16(2) is unreasonable and against the settled principles of law and the Rule of reservation enshrined under Article 16(4) of the Constitution and also depriving adequate representation of the SC/ST/OBC candidates in the 21 services notified in the Notification dated 4.12.2004, as contemplated under Article 335 of the Constitution. Therefore, the said Rule is liable to be struck down and accordingly it is struck down as violative of Articles 14, 16(4) and 335 of the Constitution.”
It will be interesting to watch what view the Supreme Court takes on the matter.
Update: The Supreme Court stayed the High Court judgment, and posted the matter for further hearing after the vacation.