Taking Away The Right Of Candidate To Be Considered In General Category If He Is Not Found Entitled To Reservation Sought By Him Violative Of Article14,16:P&H HC

In this case, the petitioner, an EWS category candidate applied for the post of Veterinary Livestock Development Assistant (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 the EWS category scored 58 marks. However, the petitioner, even with 79 marks was not selected in either of the categories. Thus, the petitioner filed a writ petition for the issuance of a writ in the nature of mandamus directing the respondent to consider his claim for selection and appointment as VLDA against the general category for having obtained higher marks than the last selected candidate in the general category.

The Advocate General (AG) representing the respondent argued that the petitioner had applied under EWS reserved category and therefore could not be considered for the general category. Since his EWS certificate was found invalid, he could not be considered for selection in the EWS reserved category either.

Here, the court opined that the basic principle of reservation was that general category seats are to be filled from the merit list first and the reserved category seats are to then be allocated as per the assigned quota. Thus, once the merit list is prepared for the general or open category, any candidate, who has applied under the reserved category but obtains higher marks than the last selected candidate in general category, has a right of selection and appointment under the general category.

The court further held that not considering a candidate for the open or general category because he is found ineligible for the reservation sought by him goes against the intent of Article 16 of the Indian Constitution. Elaborating further, the court stated 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, same would be also violative of Article 14 of the Constitution of India, apart from Article 16(1) itself."

The court relied upon the case of Saurav Yadav and others Vs. State of Uttar Pradesh and others for its opinion. In this case, the Supreme Court stated that–

"The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in "Open or General Category" is well settled…reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid "slots", where a candidate's merit, which otherwise entitles her to be shown in the open general category, is foreclosed. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit."

The court also held that the judgement of Union of India v. Dalbir Singh and Ors. (2009 (4) SCT 636) as relied upon by the AG was completely misquoted in course of arguments. In this judgement, the Apex Court held that once a candidate had participated in selection pursuant to "separate advertisement" meant for "separate categories" in "separate selection process" having "separate merit list", he cannot stake his claim on the basis of his merit for consideration in the general category merely because he obtained more marks than the last selected candidate in the separate selection of general category. The court differentiated this judgement with the present case by stating that in the present case, the selection process was not separate for the general and the EWS category candidates. It was a common single process for all categories. Therefore, the aforementioned judgment would not be applicable in the present case.

As per the arguments raised by the parties, 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. Accordingly, the respondents were directed to consider the candidature of the petitioner in general category.

Case Details

Om Roj v. Haryana Staff Selection Commission and Ors.| CWP-2667-2022 | 28 April 2022

Coram: Justice Arun Monga

Citation: 2022 LiveLaw (PH) 134 

Click Here To Read/Download Order