Less Meritorious General Category Candidates Can't March Ahead Of Higher Merit Reserved Category Candidates In Open Seats: Allahabad HC

The Allahabad High Court has held that the general category is called “open category” because there can be migration from reserved category to general category but not vice versa.

Accordingly, it was held that a reserved category candidate scoring higher marks than a general category candidate will be given priority in open category selection process. However, vice versa is not applicable for selection in reserved category, where only candidates of reserved category shall be selected.

“…on the principle that merit is to be reckoned with in public employment and the candidates having merit have to be given preference despite the categories to which they belong to. So, in such event when merit of general category is higher and a reserved category candidate is able to score higher than the last cut off of the general category then such reserved category candidate would be migrated to open category. But in the matter of reserved category if a candidate has applied as an general category candidate may be he belongs to reserved category he would be taken to be general category candidate only. So there is no migration from general to reserved category,” held Justice Ajit Kumar.

The Court held that for a post assigned to reserved category, only reserved category candidates could be appointed even when the appointment is being made from a mixed waiting list of candidates.

Factual Background

Petitioners applied for the post of Assistant Teachers in Trained Graduate Teacher (TGT) for which advertisement was issued by the UP Secondary Education Service Selection Board, Prayagraj for 12,603 vacancies. 1742 vacancies were in subject Hindi and only for boys. 1054 were for general category and 405 were for OBC category.

Petitioners having tied with other candidates at the cut-off marks for OBC category were placed in the waiting list. it was argued that the candidates who had scored lower than the petitioners were being placed higher in the waiting list and were thus given a chance against the vacant seats. Petitioners approached the High Court seeking their appointment on the vacant seats in compliance of the UP Secondary Education Service Selection Board Rules.

Counsel for petitioner contended that candidates of general category who secured less marks than petitioners were being offered allotment of colleges for appointment as Assistant Teacher (TGT). It was argued that those candidates of the general category who had scored less marks than the candidates of OBC category could not be appointed as Assistant Teacher (TGT) as appointment in open category was available to candidates of all categories having higher merit.

It was argued that if a higher merit candidate of open category is unavailable to fill the vacant seat in open category, then a candidate from the reserved category who is more meritorious than the next candidate of the open category shall be given preference.

Per contra, counsel for respondent submitted that since open category seats were vacant, only open category candidates were recommended for appointment on such posts. It was argued that no migration from one reserved category to another be allowed once reservation has been allowed.

High Court Verdict

The Court relied on Indra Sawhney Etc. Etc v. Union of India where the Supreme Court while upholding the principle of migration of reserved category candidates into the general category vacancies had observed

“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.”

The Court further relied on Saurabh Yadav and ors vs. State of UP & ors wherein it was held that the open category is open to all men and women alike without any vertical or horizontal reservations.

Further, reliance was placed on the decision of Supreme Court in R.K. Sabharwal v. State of Punjab where the Court had held that allotment of general category seats to reserved category candidates does not count in the percentage of seats allocated for the reserved category.

The Court held that once the merit list according to the cut-off the general category was exhausted, and vacancies were to be filed from the waiting list then general category candidate with lesser marks could not have “marched ahead” of a more meritorious candidate of the reserved category.

While directing the respondents to prepare a fresh panel list in accordance with law, the Court observed

“No one can be appointed against rules in public employment, may be interpreting it wrongly or mistakenly and if a wrong has been done it must be undone.”

Case Title: Akhilesh Kumar And 3 Others vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 174 [WRIT - A No. - 12559 of 2023]

Case Citation: 2024 LiveLaw (AB) 174

Counsel for Petitioner: Utkarsh Birla, Aarushi Birla

Counsel for Respondent: Neeraj Tripathi, Additional Advocate General assisted by J.N Maurya, Chief Standing Counsel and A.K.S. Parihar

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