IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1817 of 2008 Reserved on: 1.8.2011 Date of Decision: 4.8.2011 Ashwani Kumar and another …Petitioners Versus. State of H.P. and others. … Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. For the petitioner No.2: Mr. B.C.Negi, Advocate. For the Respondents No. 1 & 3: Mr. Vivek Thakur, Addl. A.G. & Mr. Rajesh Mandhotra, Dy. A.G. For the respondent No.2: Mr. Shrawan Dogra and Mr. D.K.Khanna, Advocates For the respondent No.4: Mr. Ashok Sharma, Advocate. Deepak Gupta, J. 1. “Can a person who applies for employment as a scheduled tribe candidate, competes in the test, does better than the general category candidates, be denied employment on the ground that the scheduled tribe quota is full and the person being a scheduled tribe cannot be considered in the category of general category candidates.” This is the question which arises for decision in the present case. 2 2. The Factual Matrix: The respondent-State of H.P. conducted the combined competitive examination for recruitment to the H.P. Administrative Services for the year 2006. The preliminary examination was conducted on 22.07.2007. Petitioner No.1 has withdrawn from the petition and therefore, we are concerned only with petitioner No.2. It is not disputed that he was qualified to appear in the said examination. The petitioner No.2 belongs to the scheduled tribe and appeared in the said examination as a scheduled tribe candidate. He scored 236 marks in the preliminary examination whereas the cut off for the general category was 212 marks. Therefore, even if he had not applied as a scheduled tribe candidate he would have cleared the preliminary examination as a general category candidate. The petitioner thereafter appeared in the main examination. It is not disputed that the cut off for general category candidates in the main examination was 490 marks whereas for scheduled tribe candidates the cut off was 467 marks. The petitioner had obtained 524 marks in the main examination. As such, it is apparent that he would 3 have been called for the interview even if he was appearing as a general candidate. 3. It would be pertinent to mention that private respondent Manoj Joshi, who is the last candidate appointed, had obtained only 495 marks in the written examination. He obtained 105 marks in the interview and therefore, his total score was 600. The petitioner scored 95 marks in the interview and if these marks are added to 524 his total would be 619 marks. In this way he would be placed at Sr. No. 16 in the combined merit list out of the total of 32 selected candidates. The misfortune of the petitioner is that two other persons belonging to the scheduled tribe were placed at Sr. No. 7 and 13 of the combined list since they had combined scores of 642 and 623, respectively. The petitioner was not offered appointment on the ground that he had applied under the category of scheduled tribe and the two seats meant for scheduled tribe candidates were no longer vacant. 4. The Legal Issues. Shri B.C.Negi, learned counsel for the petitioner contends that the system followed by the H.P.Public 4 Service Commission and the State is totally illegal. According to him no material has been placed on record to show that two scheduled tribe candidates selected, who admittedly had very high scores got the benefit of being scheduled tribe candidates, therefore, they should have been treated and appointed against the general category. In the alternative, he submits that the petitioner both in the preliminary and in the written examination had scored higher marks than the cut off marks required for general category candidates and the petitioner could not have been denied the benefit only on the ground that two scheduled tribe candidates had already been appointed. 5. On the other hand Shri Shrawan Dogra, learned counsel for the Public Service Commission submits that in the information brochure it was made clear that a candidate must specify the category under which he/she is applying and cannot be permitted to change the category later on. He also submits that there were different standards for scheduled tribe and scheduled caste candidates as compared to general category candidates. According to him merit was drawn category wise and whereas from the general category 5 three candidates were called for the interview against one post, only two candidates were called from the reserved category against one post. He also submits that even at the time of interview since schedule tribe and scheduled caste candidates compete amongst themselves the interview committee may lay down different standards. According to him once a candidate has applied as a scheduled tribe candidate he cannot be considered in the category of general category. Shri Shrawan Dogra, learned counsel submits that if the two scheduled tribe candidates who were higher up had opted to be categorized as general category candidate then benefit could have been given to the petitioner. He also submits that the merit list cannot be re-written at this stage. His last submission is that no relief can be granted to the petitioner at this belated stage. 6. Shri Ashok Sharma, learned counsel for the private respondent submits that more than three years have elapsed since the selection took place and therefore the settled position should not be unsettled. 6 7. The Legal Position. It is not necessary to refer to all the rulings on the point. The Apex Court in Indra Sawhney and others vs. Union of India and others, 1992 Supp (3) SCC 217 held as follows:- “811. 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.” 8. The Constitution Bench of the Apex Court in M.Nagaraj and others vs. Union of India and others (2006) 8 SCC 212 has in an erudite judgement succinctly answered the following question:- “Are reserved category candidates free to contest for vacancies in general category? 60. In Indra Sawhney, Jeevan Reddy, J. noted that reservation under Article 16(4) does not operate on communal ground. Therefore, if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K.Sabharwal the Supreme Court held that while general category candidates are not entitled to fill the reserved posts, reserved category candidates 7 are entitled to compete for the general category posts. The fact that considerable number of members of Backward Class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class.” 9. The aforesaid ratio of the Constitution Bench of the Apex Court decided beyond pale of doubt that a member from the reserved category if selected on his own merit should be treated as belonging to the general category and his selection will not be counted against the quota of the reserved category. As observed by the Apex Court this may be a valid ground to be taken into consideration for discontinuing reservation for a particular tribe or caste but as long as the reservation is there the law as laid down in Indra Sawhney and others vs. Union of India and others, 1992 Supp (3) SCC 217 and M.Nagaraj and others vs. Union of India and others, (2006) 8 SCC 212, holds the field. 10. However, one clarification needs to be given that in case while qualifying the preliminary test or the written test the reserved category takes advantage of lower cut offs then he cannot be appointed against 8 the general category. However, if the reserved category candidate does better than a general category candidate without the aid of any crutches then his selection is on the basis of merit and not on the basis of reservation and he shall have to be treated to be a general category candidate because he comes in on his own merit and not by reason of his caste. 11. The next question raised is whether the benefit of lower examination fees, higher age limits, etc. are crutches which disqualify reserved category candidate from being appointed as a general category candidate on merits. This question is also no longer res integra. The Apex Court in Jitendra Kumar Singh and another vs. State of Uttar Pradesh and others (2010) 3 SCC 119 has clearly held that age relaxation and waiver of examination fee enable a reserved candidate to compete with others but are not reservation in itself. The Apex Court went on to hold that if such a candidate belonging to the reserved category takes benefit of waiver of examination fees or concession in examination fees and also of the higher age limit prescribed but is selected on the basis 9 of his own merit in the written examination then he is to be appointed as a general category candidate and not as a reserved candidate. The Hon’ble Apex Court held as follows:- “48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list. 49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be 10 determined without any further concessions in favour of the reserved category candidates. xxx.. xxx… xxx… xxx.. xxx… xxx… 52. In the present case, the concessions availed of by the reserved category candidates in age relaxation and fee concessions had no relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgement in fact permits reserved category candidates to be included in the general category candidates on the basis of merit.” The judgement of the Apex Court is an answer to both the questions. The concessions availed of by the reserved category candidates in matter of fee and age have no relevance to determine the inter se merit which is determined on the basis of interview and test. 12. Shri Shrawan Dogra, learned counsel for the H.P. Public Service Commission has placed reliance on the judgement of the Apex Court in Union of India and others vs. Dalbir Singh and another (2009) 7 SCC 251. No doubt the observations in this case assist the case of Shri Dogra but in view of the fact that two Constitution Benches of the Apex Court in Indra Sawhney’s case and in M.Nagaraj’s case and a subsequent Division Bench in Jitendra Kumar Singh’s case have taken a totally different 11 view it is obvious that the reserved category candidate can and in fact is required to be considered as a general category candidate if he is selected only on the basis of merit. 13. It has been strenuously contended by Shri Shrawan Dogra, learned counsel that once the petitioner has exercised his option to be treated as a scheduled tribe candidate he cannot claim that he should be treated as a general category candidate. There is an inherent fallacy in this argument. Seats/posts are never reserved for general category candidates. They are only reserved for reserved categories. In view of the law laid down in M.Nagaraj’s case and Indra Sawhney’s case (supra) the reserved category candidate who gets selected on his own merit has to be treated as a general category candidate. 14. Reservation for such categories can be compared to reservation for ladies in a train. There is a special ladies compartment for ladies in a train. They alone can sit in that compartment but this does not deny them the right to sit in other compartments. 12 Therefore, if a reserved category candidate without taking any benefit or aid of any crutches appears alongwith general category candidates on a level playing field and gets selected on his own merit he must be treated as a general category candidate. Resultantly, the number of reserved posts will not be reduced by his selection on merit and the compartment meant for reserved categories must be filled in from candidates belonging to these categories. 15. Level Playing Field. As far as the present case is concerned, there is no doubt that the preliminary examination and final written examination conducted were the same for both general category candidates and reserved category candidates. No doubt, the cut off marks for reserved category candidates were different but as is apparent from the facts stated above the petitioner herein had not availed benefit of such lower cut offs at any stage but had attained higher marks than the general category candidates. In a written test when an answer sheet is sent to the examiner he is not aware whether the answer sheet is of a general category candidate or of a reserved category candidate. He 13 marks the answer sheet on its own merit. All candidates whether belonging to the general category or belonging to the reserved category were on a level playing field. It may be true that thereafter lower cut off marks may be provided for reserved categories but in this case the petitioner No.2 has not taken advantage of such benefits. The fact whether three times the number or two times the number were called has no impact whatsoever on the decision of this case. 16. The submission made by Shri Dogra, learned counsel for the H.P.Public Service Commission that at the time of interview leniency may be shown to the scheduled tribe candidates is an argument of desperation and has to be rejected outrightly. An interview panel of the highest level i.e. Public Service Commission is not expected to have any such bias either in favour or against any community. There is no question of rewriting the merit list or seeking an option from the reserved category candidates whether they want to be appointed against the general category or not. In case the reserved category candidate is appointed on his own merit he has to be treated as a general category candidate. 14 17. Relief. In view of the above discussion, it is more than apparent that the petitioner in his own right had scored much higher marks than a large number of general category candidates and was definitely better placed than respondent No.4 who scored only 600 marks as against 619 scored by the petitioner No.2. It has been urged that relief should be denied to the petitioner on the ground that the petition has been pending for the last three years. Why should the petitioner suffer for the delay in the Courts? The petitioner approached this Court immediately after the results were declared in September, 2008. The petitioner is not at fault for the delay in the decision of the petition. Therefore, the petitioner must be deemed to have cleared the HAS examination for the year 2006 results whereof were declared in the year 2008. However, since other selected candidates have not been made parties, the petitioner can only be placed at the bottom of the list i.e. above the respondent No.4. The selection of respondent No.4 is liable to be set-aside. It is accordingly set-aside. However, liberty is reserved to the State to create a 15 special post for respondent No.4 in view of the peculiar circumstances of the case. In case a post is not created benefit will not be denied to the petitioner but it is respondent No.4 who shall have to vacate the post. The petitioner shall, however, not be entitled to any back wages but he shall be treated to be selected in the year 2008 for all other intents and purposes. The respondent-State is directed to ensure compliance of this order latest by 30th September, 2011. 4th August, 2011 ( Deepak Gupta ) ™ Judge.