CIVIL WRIT JURISDICTION CASE No.3613 OF 2003 (In the matter of an application under Article 226 & 227 of the Constitution of India) ****** 1. Bhawani Shankar Nath, Son of Sri C.B.Yadav, resident of Gangajala, P.S. Saharsa Sadar and District Saharsa -----Petitioner Versus 1. The Union of India, through the Secretary, Ministry of Personnel, Public Grievance & Pension, Govt. of India, New Delhi. 2. The Secretary, Ministry of Public Grievance & Pension, New Delhi. 3. The Union Public Service Commission, through its secretary, Dholpur House, Shah Jahan Road, New Delhi. 4. Desk Officer, Deptt. Of Personnel and Training, North Block, New Delhi. 5. Registrar, Central Administrative Tribunal, Patna Bench, Patna. -----Respondents ****** For the Petitioner : Mr. Pushkar Narain Shahi, Sr. Advocate. & Mr. Ritesh Kumar no.1, Sanjeet Kumar Singh, Advocates. For the Union of India : Mr. Binay Kumar Pandey (C.G.C.) P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ****** S.K.Katriar, J. This writ petition is directed against the order dated 04.11.2002 (Annexure-5), passed by the Central Administrative Tribunal, Patna Bench, in O.A.No. 218 of 2000 ( Bhawani Shankar Nath vs. the Union of India & Ors.), whereby the original application preferred by the writ petitioner has been rejected, and he has been denied a post allegedly due to him because of his position in the combined merit list. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The Union Public Service Commission (‘U.P.S.C.’ for short) conducted the selection process to 2 recommend the names for appointment to the Civil Services of the Union of India. The selection process took place sometime in 1998, and the combined merit list was published on 26.05.1999. This was followed by a modified merit list published on 31.08.1999. The recommendations had to be made, and were in fact made for a total number of 470 posts. 27% of these seats were reserved for the candidates belonging to Other Backward Classes (‘O.B.C’. for short). In other words, 114 seats were reserved for O.B.C. candidates spread over different services. The petitioner was in O.B.C. category. The petitioner was at serial no. 449 of the combined merit list, which was recommended by the U.P.S.C. to the Union of India for appointment. It is further relevant to state that the petitioner was amongst the list of 114 candidates of O.B.C. It is equally relevant to state that 28 O.B.C. candidates had made their way to the unreserved category without relaxed standards, out of whom 2 were given posts ear-marked for candidates of the unreserved category as per their preferences. It appears that the petitioner had submitted representation before the Union of India which was rejected by a reasoned order of 21. 01.2000 (Annexure-2), on the ground that after 26 O.B.C. candidates, who had found their way to the category of unreserved candidates without relaxation of standards, were given posts earmarked for the O.B.C. candidates, as a result of which no post was left for the petitioner. Hence this writ petition. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. The issues are governed by Rules 2 and Rule 16 of the Civil Services Examination 3 Rules 1996, and are reproduced herein below for the facility of quick reference: “2. A candidate shall be required to indicate in his/her application form for the main examination his/her order of preferences for various services/posts for which he/she would like to be considered for appointment in case he/she is recommended for appointment by the Union Public Service Commission. A candidate who wishes to be considered for IAS/IPS shall be required to indicate in his/her application if he/she would like to be considered for allotment to the State to which he/she belongs in case he/she is appointed to IAS /IPS. Note: The candidate is advised to be very careful while indicating preferences for various services/posts. In this connection, attention is also invited to Rule 18 of the Rules. The candidate is also advised to indicate all the services/posts in the order of preference in his/her application form. In case he/she does not give any preference for any service/post, it will be assumed that he/she has no specific preference for those services. If he/she is not allotted to any one of the services/posts for which he/she has indicated preference, he/she shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preferences. (emphasis supplied) The rules fell for consideration of the Delhi High Court in the case of Satya Prakash vs. Union of India & Another, which presented a comparable situation, in Civil Writ Petition No. 3561 of 1999, along with other analogous writ petitions. The same were allowed by common judgment dated 10.09.2002 (Annexure-7), whereby the Union of India was directed to appoint the petitioners. The Union of India challenged the same before the Supreme Court which has been dismissed with costs and is reported in 2006(4) SCC 550 (Union of India & Anr. Vs. Satya Prakash &Ors.) 4 4. In view of the authoritative pronouncement of the Supreme Court covering just the same issue, we are now not to look to any other source for guidance. On a review of the leading judgments on the point, and interpretation of Rules 2 and Rule 6, the Supreme Court has held that the Note appended to Rule 2, and the proviso to Rule 16, hold the key to the issue. We can not do better then reproduce Paragraph nos. 15 to 20 of the judgment:- “15. Note appended to Rule 2 is crystal clear and unambiguous. It shows that if a candidate is not allotted to any one of the services/posts for which he/she has indicated preference, he/she shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preferences. 16. Further, the proviso to sub-rule (2) of Rule 16 makes it further clear in unambiguous terms that the candidates belonging to the Scheduled Castes, the Scheduled Tribes or the Other Backward Classes who have been recommended by the Commission without resorting to the relaxed standard ( i.e. on merits), referred to in this sub-rule, shall not be adjusted against the vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. 17. This position has been made crystal clear in Ritesh R. Sah as referred to above that while a reserved category candidate entitled to admission on the basis of his merit, will have the option (preference) of taking admission in the college where specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate. 18. By way of illustration, a reserved category candidate, recommended by the Commission without resorting to relaxed standard ( i.e. on merit) did not get his own preference “say IAS” in the merit/ open category. For that, he may opt a preference from the reserved category. But simply because he opted a preference from the reserved category does not exhaust the quota of OBC category candidate selected under the relaxed standard. Such preference opted by OBC candidate who has been recommended by the 5 Commission without resorting to the relaxed standard ( i.e. on merit) shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes. This is the mandate of the proviso to sub-rule (2) of Rule 16. 19. In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/ percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate ( i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to the relaxed standard. 20. If a candidate of the Scheduled Caste, the Scheduled Tribe and Other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she can opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preference.” 5. Before we proceed further, we would like to repeat that the present case on facts is in one sense different from the reported judgment where respondents before the Supreme Court were candidates of the O.B.C, but had found their way to the unreserved category on the basis of their merit, and without taking the benefit of relaxation of standards. On the other hand, in the instant case, the present petitioner did not make his way to the unreserved category, and has remained confined to the selected candidates of reserved category of O.B.C. This will, however, have no difference in application of the principles enunciated by the Supreme Court, but will have bearing on the question of preferences. 6 6. Applying the principle enunciated by the Supreme Court to the present case, the petitioner was surely amongst the combined merit list of 470 candidates, and was equally surely amongst 114 candidates of the O.B.C. Therefore, he cannot be denied one of the posts advertised by the U.P.S.C. Supreme Court has observed that the list of preferences of the reserved category, O.B.C. in the instant case, has to be prepared entirely on the basis of their merit irrespective of the situation whether or not such candidate(s) has/have made their way to the unreserved/general category without relaxed standards, or has remained in the list of O.B.C. The Supreme Court has further observed that allotment of posts to these persons have to be made strictly on the basis of aggregate marks obtained by them read with their preferences. In other words, the superior candidates among the O.B.C. candidates of either list will be given a posts of their preference, and a candidate of the category with lesser aggregate marks like the present petitioner, will be pushed down in the list of preferences. In other words, the present petitioner has to be given a post after the persons higher up in the merit list of O.B.C. candidates including both kinds have been given their preferential job. It may be stated that this Court, by order dated 09.04.2003, had reserved one post of the reserved category for O.B.C. candidates during the pendency of the present proceedings. 7. In the result, the writ petition is allowed. The order dated 21.01.2000 (Annexure-2), passed by the Union of India, as well as the order of the learned Tribunal, are hereby set aside. The Union of India is hereby directed to appoint the petitioner in accordance with 7 law as enunciated by the Supreme Court in the case of Union of India & Anr. Vs. Satya Prakash &Ors. (supra). The admitted position before us is that petitioner has been gainfully employed under the Bihar Government and shall, therefore, not be entitled to arrears of salary, but shall be entitled to all notional benefits of his appointment, and his due position in the seniority list. Kishore K. Mandal,J. I agree. Patna High Court, Dated the 6th April, 2010, Sym/AFR (S.K.Katriar,J) ( Kishore K. Mandal, J.)