IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.3.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Petitions No.37196 of 2007, 33946 of 2007, 1814 of 2008, 1815 of 2008, 3443 of 2008 and 3444 of 2008 AND M.P.No.1 of 2007 in W.P.No.33946 of 2007, M.P.No.1 of 2008 in W.P.No.1814 of 2008, M.P.No.1 of 2008 in W.P.No.1815 of 2008, M.P.No.1 of 2008 in W.P.No.3443 of 2008 and M.P.No.1 of 2008 in W.P.No.3444 of 2008 W.P.No.37196 of 2007: 1. Ramanjit Kaur Sethi 2. Pranjal J.Hazarika 3. Vineet Jain 4. Ashish Singh 5. Monica Jaitly 6. Vivek Agarwal 7. Aashwita Lal 8. Pratima Tripathi 9. Prateek Kumar Singh 10.Praveen Kumar Yadav 11.Rajnish Kumar Tripathi 12.Anup Kumar Shukla 13.Syed Sarfraj Ahmad ... Petitioners Vs. 1.The Central Administrative Tribunal, rep.by its Registrar, High Court Complex, Chennai-600104. 2.Ramesh Ram 3.Union of India, rep.by Secretary to Government, Department of Personnel & Training, https://hcservices.ecourts.gov.in/hcservices/ Ministry of Personnel, Public Grievances & Pensions, New Delhi. 4.The Union Public Service Commission, rep.by its Secretary, Dholpur House, Shahjahan Road, New Delhi. ... Respondents W.P.No.33946 of 2007: 1.K.Chandrasekar 2.Navelendra Kumar Singh 3.V.Chinnamallikarjuna ... Petitioners Vs. 1.The Central Administrative Tribunal, rep.by its Registrar, High Court Complex, Chennai-600104. 2.R.Arulanandan 3.Union of India, rep.by Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, New Delhi. 4.The Union Public Service Commission, rep.by its Secretary, Dholpur House, Shahjahan Road, New Delhi. 5.M.Sibi Chakkravarthy 6.Dr.V.Ram Prasath Manohar 7.M.G.Rajamanickam 8.Laxmi Narayanan 9.Sasi Rekha R.M. ... Respondents (Respondents 5 to 9 impleaded as per the order of the Court dated 23.1.2008 made in M.P.No.1 of 2008 in W.P.33946/2007) https://hcservices.ecourts.gov.in/hcservices/ W.P.No.1814 of 2008: Union of India, rep.by Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pension, New Delhi. ... Petitioner Vs. 1.Ramesh Ram 2.K.Chandrasekar 3.Naviendra Kumar Singh 4.V.Chinnamallikarjuna 5.Central Administrative Tribunal Madras Bench, Chennai. ... Respondents W.P.No.1815 of 2008: Union of India, rep.by Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pension, New Delhi. ... Petitioner Vs. 1.R.Arulandan 2.K.Chandrasekar 3.Naviendra Kumar Singh 4.V.Chinnamallikarjuna 5.Central Administrative Tribunal, Madras Bench, Chennai. ... Respondents W.P.No.3443 of 2008: The Union Public Service Commission, rep.by its Secretary, Dholpur House, Shahjahan Road, New Delhi. ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ Vs. 1.R.Arulandan 2.Union of India, rep.by Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, New Delhi. 3.K.Chandrasekar 4.Navlendra Kumar Singh 5.V.Chinnamallikarjuna 6.Registrar, Central Administrative Tribunal, Chennai Bench, Chennai. ... Respondents W.P.No.3444 of 2008: The Union Public Service Commission, rep.by its Secretary, Dholpur House, Shahjahan Road, New Delhi. ... Petitioner Vs. 1.Ramesh Ram 2.Union of India, rep.by Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, New Delhi. 3.K.Chandrasekar 4.Navlendra Kumar Singh 5.V.Chinnamallikarjuna 6.Registrar, Central Administrative Tribunal, Chennai Bench, Chennai. ... Respondents * * * https://hcservices.ecourts.gov.in/hcservices/ All the Writ Petitions filed under Article 226 of the Constitution of India. W.P.No.37196 of 2007 has been filed praying to issue a Writ of Certiorarified Mandamus to call for the records of the 1st respondent Tribunal in O.A.No.775 of 2006, dated 17.9.2007 and quash the same as being illegal, arbitrary and unjust and consequently direct the respondents 3 and 4 to appoint the petitioners to Civil Service with all attendant benefits, with due seniority and monetary benefits. W.P.No.33946 of 2007 has been filed praying to issue a Writ of Certiorarified Mandamus to call for the records of the 1st respondent Tribunal in O.A.No.690 of 2006, dated 17.9.2007 and quash the same as being illegal, arbitrary and unjust and consequently direct the respondents 3 and 4 to appoint the petitioners to Civil Services with all attendant benefits. W.P.No.1814 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the first respondent in O.A.No.775 of 2006 and to quash the order dated 17.9.2007. W.P.No.1815 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the first respondent in O.A.No.690 of 2006 and to quash the order dated 17.9.2007. W.P.No.3443 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the 6th respondent Central Administrative Tribunal, Chennai Bench, Chennai and quash the order dated 17.9.2007 made in O.A.No.690 of 2006. W.P.No.3444 of 2008 has been filed praying to issue a Writ of Certiorari to call for the records of the 6th respondent Central Administrative Tribunal, Chennai Bench, Chennai and quash the order dated 17.9.2007 made in O.A.No.775 of 2006. * * * For petitioners in W.P.Nos.37196/2007 & : Mr.N.G.R.Prasad for 33946/2007 : M/s.Row & Reddy For R.2 in W.P.No. 37196/2007, who is R.1 in W.P.Nos.1814 & 3444/2008 and also for R.2 in W.P.No. 33946/2007, who is R.1 in: Mr.Vijaynarayan, S.C. for https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.1815/2008 & M/s.Karthik Mukundan 3443/2008 : For R.3 in W.P.Nos. 37196/2007& 33946/2007, who are the Petitioners in W.P.Nos.1814/2008 & : Mr.V.T.Gopalan, Addl.S.G. for 1815/2008 and Mr.P.Wilson, Asst.S.G. R2 in W.Ps.3443 & 3444/2008 For R.4 in W.P.Nos. 37196/2007 & 33946/2007, : Mr.A.L.Somayaji, S.C. for who are the Petitioners in Mr.K.Sridhar W.Ps.3443/2008 & 3444/2008 For R.5 to R.9 in W.P.No.33946/2007 : Mr.N.Srinivasan For others : No appearance * * * COMMON ORDER ELIPE DHARMA RAO, J. Since all the matters on hand are inextricably interconnected with each other, they are heard together and are being disposed of by this common order. 2. All these writ petitions pertain to the selection of All India Service Officers and Group A and Group B officers in various Government Departments conducted by the Union Public Service Commission. The Civil Services Examination is a combined examination catering to recruitment in more than 20 civil services and it consists of preliminary examination, main examination and interview. 3. The Union Public Service Commission has issued a notification dated 4.12.2004 to fill up 457 posts in 21 different cadres. The preliminary examination was conducted on 15.5.2005, the main examination was conducted on 21.10.2005 and interview was held on 7.4.2006 and the select lists were issued on 8.5.2006 and https://hcservices.ecourts.gov.in/hcservices/ 3.4.2007. The break-up details of the posts as mentioned in the notification is as follows: S.No. Cadre/ Service Total number of vacancies SC ST OBC UR Total 1 IAS 14 6 22 45 87 2 IFS 2 2 6 10 20 3 IPS 17 8 27 51 103 4 IP &T AFS NIL NIL NIL 1 1 5 IAAS 2 NIL 2 4 8 6 IC & CES 10 5 18 34 67 7 IDAS 2 1 2 5 10 8 IRS 5 2 10 21 38 9 IOFS 1 NIL 1 1 3 10 I Po S NIL NIL 1 4 5 11 ICAS 1 NIL 1 NIL 2 12 IRTS 5 2 9 19 35 13 IRAS 3 2 6 12 23 14 IRPS 2 2 4 8 16 15 RPF 1 1 3 5 10 16 IDES NIL NIL NIL NIL NIL 17 IIS NIL NIL NIL 1 1 18 ITS NIL NIL 1 1 2 19 AFHCS NIL NIL NIL 14 14 20 DANICS 1 1 3 5 10 21 DANIPS NIL NIL 1 1 2 TOTAL 66 32 117 242 457 4. The Union Public Service Commission had published a list of 425 candidates who were successful in the Main Examination in the first phase and the remaining 32 in the second phase along with a consolidated reserve list of 64 candidates. The 31 OBC candidates and 1 SC candidate whose names found a place in the merit list did not choose to get the posting as per the unreserved category list and they chose to avail the higher services under the reserved quota. https://hcservices.ecourts.gov.in/hcservices/ 5. In these circumstances, two of the selected candidates, viz. R.Arulanandan and Ramesh Ram, who ranked 351 and 330, out of 425 successful candidates have filed O.A.Nos.690 of 2006 and 775 of 2006 before the Tribunal. In O.A.No.690 of 2006, the applicant therein viz. R.Arulanandan has prayed: "1. to declare Rule 16(2) of the Examination Rules issued by the Government of India for the Civil Services Examination, 2005, vide notification No.13018/8/2004 AIS (1) dated 4.12.2004 as unconstitutional, null and void and to consequently direct the respondents to make allocation to various services on the basis of the Civil Services Examinations 2005 by treating 31 Other Backward Category (OBC) candidates, who were selected on merit, as General Category candidates, and 2. to consequently re-work the allocation in respect of remaining Other Backward Category (OBC) candidates and allocate the applicant herein to any higher preferred service on the basis of the choice given by the applicant." 6. In O.A.No.775 of 2006, the applicant therein viz. Ramesh Ram has prayed: "1. to direct the respondents to make allocation to various services on the basis of the Civil Services Examinations 2005 by treating 31 Other Backward Category (OBC) candidates, who were selected on merit, as General Category candidates; and 2. to consequently re-work the allocation in respect of remaining Other Backward Class candidates and allocate the applicant herein to any higher preferred service on the basis of the choice given by him." 7. The Tribunal, has disposed of both the O.As., with certain directions. Aggrieved, these writ petitions are filed. Pending these W.Ps., some of the candidates, who did not get their postings and who are not parties before the Tribunal, have filed M.P.No.1 of 2008 in W.P.No.33946 of 2007, to implead them as party respondents to W.P.No.33946 of 2007 and the said petition having been allowed, they are also brought on record as respondents 5 to 9 in W.P.No.33946 of 2007. https://hcservices.ecourts.gov.in/hcservices/ 8. Heard Mr.V.T.Gopalan, learned Additional Solicitor General appearing for the Government of India, Mr.A.L.Somayaji, learned senior counsel appearing for the Union Public Service Commission, Mr.Vijayanarayanan, learned senior counsel appearing for the applicants before the Tribunal, Mr.N.G.R.Prasad, appearing for the petitioners in W.P.Nos.37196 and 33946 of 2007 and Mr.N.Srinivasan, appearing for the impleaded parties. 9. The entire case on hand revolves round the application of Rule 16(2) of the Civil Services Examination Rules, as amended. While on the part of the applicants before the Tribunal it is contended that the meritorious reserved candidates should not be appointed in the posts meant for reserved category and that if the meritorious reserved candidates were not appointed in the posts meant for reserved candidates, they would have got better service or post, on the part of the Government of India and the Union Public Service Commission, it is contended that Rule 16(2) was introduced, taking into consideration the over all sufferings of the candidates and it champions the cause of the candidates. The impleaded parties, who did not get their postings, would attribute the fault on the amended provision of Rule 16(2) for their non-appointment in spite of being successful at all stages of selection and would state that the amended rule provided caveat for the UPSC and the Government of India to bye-pass the earlier guidelines regarding the allocation of services for the reserved category candidates. 10. For better appreciation of the case on hand, Rule 16(2) of the Civil Services Examination Rules, both before and after amendment, is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ Rule 16(2) unamended Rule 16(2) amended The candidates belonging to any of the Scheduled Castes or Scheduled Tribes or the Other Backward Classes may, to the extent of the number of vacancies reserved for the Scheduled Castes and the Scheduled Tribes and the Other Backward Classes be recommended by the Commission by a relaxed standard, subject to the fitness of these candidates for selection to the services. Provided that the candidates belonging to the Scheduled Castes and the Scheduled Tribes and the Other Backward Classes who have been recommended by the Commission without resorting to the relaxed standard referred to in this sub-rule shall not be adjusted against the vacancies reserved for the Scheduled Castes and the Scheduled Tribes and the Other Backward Classes. While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes or Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government, if by this process, they get a service of higher choice in the order of their preference. 11. The above said unamended Rule 16(2) was the subject matter before the Delhi High Court in Satyaprakash Vs. Union of India, in C.W.P.No.3561 of 1999, dated 10.9.2002, which was the subject matter in UNION OF INDIA AND ANOTHER vs. SATYA PRAKASH AND OTHERS [(2006) 4 SCC 550]. In the said case, while dealing with the question as to 'whether the OBC candidates, who were selected on merit and were placed in the list of open category candidates could, still for the purpose of placement (preference), be considered to be OBC candidates thereby exhausting the quota reserved for relaxed OBC candidates' the Honourable Apex Court has held as follows: "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 but while computing the quota/percentage of reservation he/she will be deemed t have been allotted a https://hcservices.ecourts.gov.in/hcservices/ 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. Simply because he opted a preference from the reserved category would not exhaust the quota of OBC category candidate selected under the relaxed standard. This is the mandate of the proviso to sub-rule (2) of Rule 16." "When a reserved category candidate recommended by the Commission without resorting to the relaxed standard opts a preference from the reserved category, in the 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." "In the present case, the Commission recommended one-to- one vacancy, altogether 737 candidates against 737 posts. Against OBC category 174 candidates were recommended against 174 posts. By opting a preference, the quota reserved for an OBC candidate does not exhaust. There are still vacancies after allocation of all the candidates in the order of preference who can be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allotted to the services/posts in accordance with their preference. This is the mandate of the note appended to Rule 2." 12. By this, the Honourable Supreme Court has settled the position regarding the issue on hand holding that a reserved category candidate, gets selected on his own merit, he should be considered only as an unreserved candidate and not as a reserved category candidate. However, subsequent to this judgment by the Honourable Apex Court, the impugned amended Rule 16(2) was brought into force, which is being vehemently commented as being brought into force only to over-rule the judgment of the Honourable Supreme Court. But, on the part of the Government of India and the Union Public Service Commission, Mr.V.T.Gopalan, the learned Additional Solicitor General, has argued that a decision is a precedent on its own facts and reliance on the decision, without looking into the factual background of the case on hand, is impermissible and hence would argue that the earlier case decided by the Honourable Supreme Court is quite different from the case on hand and therefore the ratio applied by the Honourable Supreme Court in the above judgment cannot be applied to the facts of the case on hand. In support of https://hcservices.ecourts.gov.in/hcservices/ his arguments, the learned Additional Solicitor General would rely on a judgment of the Honourable Supreme Court in STATE OF RAJASTHAN vs. GANESHI LAL [2008 (1) SCJ 222], wherein it has been held: "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed." 13. There is no quarrel with regard to the above proposition laid down by the Honourable Supreme Court. But, in the case on hand, the strong criticism to the impugned Rule 16(2), as amended, is that it has been brought into existence only to over-rule the above judgment of the Honourable Supreme Court. This argument has been further refuted by the learned Additional Solicitor General on the ground that the Rule has got sanctity of legislation and it being the policy decision of the Government, the Court is not expected to interfere with the same. In support of his arguments, the learned Additional Solicitor General has relied on a judgment of the Honourable Apex Court in STATE OF ANDHRA PRADESH AND OTHERS ETC. vs. Mc.DOWELL AND CO. AND OTHERS [AIR 1996 SC 1627 = (1996) 3 SCC 709] wherein a Three Judge Bench of the Honourable Apex Court has held: "A law made by the Parliament or the Legislature can be struck down by Courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground. If an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. An enactment cannot be struck down by applying the principle of proportionality when its applicability even in administrative law sphere is not fully and finally https://hcservices.ecourts.gov.in/hcservices/ settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. The two rules stated above for striking down of enactments are however confined to an Act made by the Legislature." 14. But, in the subsequent judgment, in O.KONAVALOV vs. COMMANDER, COAST GUARD REGION AND OTHERS [(2006) 4 SCC 620], the Honourable Apex Court has held: "There are no excluded categories of State policy or practice which can claim exemption from judicial consideration." 15. Therefore, in view of the above judgment of the Honourable Apex Court, the argument of the learned Additional Solicitor General, that the Court cannot interfere with the policy decisions of the Government, cannot be accepted. Further more, it is a well settled proposition of law that reasonableness and non- arbitrariness are the hallmarks of an action by the State and an unfair executive action can very well be the reason for judicial review. Thus, rejecting the argument of the learned Additional Solicitor General regarding scope of these writ petitions, now we shall proceed to deal with the other aspects of the case. 16. Article 15 of the Constitution deals with discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Article 16(1) guarantees equality of opportunity in matters of public employment. The term 'Backward Classes' is a comprehensive one, comprising four Sections of our society viz. Scheduled Castes, Scheduled Tribes, Other backward classes and denotified communities. These sections constitute the underprivileged classes of the country, for whom special treatment is accorded in our Constitution. 17. Articles 15(4) and 16(4) profess to bring the socially and educationally backward people to the forefront. Only for the purpose of invoking the equality clause, the makers of the Constitution thought of protective discrimination and affirmative action. The whole basis of reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes and Other Backward Class people as a class of persons who have been suffering since a considerable length of time due to social and educational backwardness and an affirmative action has https://hcservices.ecourts.gov.in/hcservices/ been extensively developed in our country to redress the wrongs of the past. 18. The weaker sections of the society are victims of social injustice, practice of untouchability and segregation from the mainstream of national life. The object of protective discrimination is to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person in which justice — social, economic and political — are enjoyed by them in equal measure with the general members of the society. Dr.B.R.Ambedkar in his closing speech, in reply to the Debates in the Constituent Assembly, had stated that 'the edifice in the Constitution was built up with laborious effect'. The provision for reservation in appointments under Article 16(4) is not aimed at economic upliftment or alleviation of poverty. Article 16(4) is specifically designed to give a due share in the State power to those who have remained out of it mainly on account of their social, educational and economic backwardness. Reservation affords backward class of citizens a golden opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. 19. From the materials placed on record and upon hearing the learned counsel on either side, we are able to see that the Union Public Service Commission has released the list of selected candidates for 425 candidates, of which 210 are unreserved, 117 are OBC, 66 are SC and 32 are ST. It is not in dispute that that 31 OBC candidates and one SC candidate was qualified on their own merit, but not on any relaxed standards. But, these 31+1 candidates were treated as if they have availed their respective reservation quota, instead of treating them as unreserved quota candidates under the guise of the impugned Rule 16(2). For this the Government of India has stated that to ensure that reserved category candidates were not put to disadvantageous position in the matter of service allocation vis-a-vis reserved category candidates selected on unreserved standards were allocated service against the reserved vacancy of their category if it led to such candidates getting a service of their higher preference and therefore Rule 16(2) has been framed to ensure and subserve and further advance the very principle of reservation in view of reserved category candidates to get a service of higher choice in the order of their preference. https://hcservices.ecourts.gov.in/hcservices/ 20. At this juncture, it is relevant to point out the law laid down by the Honourable Apex Court in this regard. In INDRA SAWHNEY vs. UNION OF INDIA [1992 SUPP.(3) SCC 217], the Honourable Apex Court has held: "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." 21. In R.K.SABHARWAL AND OTHERS vs. STATE OF PUNJAB AND OTHERS [(1995) 29 ADMINISTRATIVE TRIBUNALS CASES 481], a Constitutional Bench of the Honourable Supreme Court has held: "When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at