6w 6/3? 1% IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR w.P. (S) No. %S?>‘H /2009 Petitioner z Ravindra Singh S/o. Shri B. R. Singh Aged about 36 years R/o. New Shiva Colony Near Sheetala Mandir Kaurinbhata, Rajnandgaon (CG) K?) W My) k a; VERSUS g Respondents /1. State of Chhattisgarh, Through: The Secretary Department of General Administration, Mantralaya, D.K.S. Bhawan Raipur (CG). The Chhattisgarh Public ervice Commission Through: The Secretary, Chhattisgarh Public Service Commission, Raipur (CG). tMwl M 9W L (w. 07417-6? RE SEWjlE Wi‘é'éI 3. vivak $hul:-a. 8/0 Ehri Vi; $hukl ge 30 Yg' w Hwsa N renkri ck,‘ mth ngzmn }. dm i. is/o z ammn mahra shad a A ans. e hw as: agarm (o we) aant Graaw ish Eh’ax‘xii‘ ge 9 3 years. imam; 5 K mwann, 1 Dng n. a. m m. -. 1'“ ga 3/0 Shri 23.“ We emi aabvmaa Aga uagr 3i yea ating nagar res ipair 3G m ag ( 4} 6 ikear max su bsim Ku ah. s/o ri m sah 3o sh ama Lax. u. Age year w aigar agam a’Jiewa Raizmr s) / S O 186, £39m: mt Bs Mra, ni A $93 2 E s, e @msh m wmxa. (a RIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTTON OF INDIA W ‘ . 7% PR f ‘@ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 3504 of 2009 ,» PETITIONER Ravindra Singh VERSUS RESPONDENTS State of Chhattisgarh and others. Writ Petition (S) No. 3538 of 2009 PETITIONER Smt. Prateeksha Pandey VERSUS RESPONDENTS State of Chhattisgarh and others. Post for pronouncement of order on [310.201 1. SN- ker K warmer D‘W“ Judge 7£€R f » HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 3504 of 2009 PETITIONER Ravindra Singh VERSUS RESPONDENTS State of Chhattisgarh and others‘ Shri P.S. Koshy counsel for the petitioner. . Shri Yashwant Singh Thakur Dy‘ AG for respondent No.1 Shri (Sanjay K. Agrawal and Shri B.D. Guru counsel for respondent No.2. Shri Matin Siddiqui counsel for respondent Nos.3 to 6. Writ Petition_(§) No. 3538 of 2009 PETITIONER Smt. Prateeksha Pandey VERSUS RESPONDENTS State of Chhattisgarh and others. Shri Prateek Sharma counsel for the petitioner. Shri Yashwant Singh Thakur Dy. AG for respondent No.1 Shri Sanjay K. Agrawal and Shri B.D. Guru counsel for respondent No.2. Shri Matin Siddiqui counsel for respondent Nos.3 to 6. / WRIT PETITION UNDER ARTICLE 226 OF THE gONSTITUTION OF lNDlA ORDER ( ,g.1o.2o11) Point involved in these two petitions being quite similar, they are disposed of by this common order. Challenge in both these writ petitions is to the impugned result of the State Services (Preliminary) examination for selection of the candidates for appearing in the main examination for various posts. l l . _2_ W” 2. Facts of the case in brief are that on 3.11.2008 advertisement No. 09/2008 was published by the Chhattisgarh Public Service Commission, Raipur inviting applications to participate in the preliminary examination for appointment on various posts prescribed under Rule 1 of Chhattisgarh State Services Examination Rules (hereinafter referred to as “Examination Rules” for convenience). Pursuant to the said advertisement various candidates filled-in their forms and participated in the preliminary examination which was conducted on 1.2.2009. Petitioners’ further case is that they remained unsuccessful in the preliminary examination due to non observance of Rule 3 (1) of the Examination Rules, in accordance with law. ‘ According to them, the Public Service Commission was under obligation to prepare the separate lists for each category i.e. (un-reserved, scheduled castes, scheduled tribes and OBC) as per Rule 3 (1) of the Examination Rules but in the present case a mistake has been committed by it'in including the candidates of reserved category i.e. (scheduled caste, scheduled tribe and OBC) in the list of un-reserved category. Their further case is that if in the list of un-reserved category, candidates of other categories had not been included, perhaps the petitioners would have been declared successful in the preliminary examination. According to the petitioners, in the un-reserved category as many as 1,246 candidates of reserved category have been included (177 SC, 155 ST and 914 OBC) as they have secured the qualifying marks‘. 3. Counsel for the petitioner submit that Rule 3 (1) of the Examination Rules does not provide the inclusion of candidates belonging to reserved / category into the un-rese'rved one and the said inclusion is not at all permissible under the said examination Rules. They further argued that Rule 3 (iii) (b) of the Examination Rules provides for inclusion of the candidates of other categories in the un-reserved category only at the stage of final selection and not at the stage of preliminary examination. According to them, sub Rule 3 (i) (d) of the Examination Rules deals with the preliminary examination only in which there is no such mention ’regarding inclusion of candidates of reserved category in the un-reserved one and therefore action of the Public Service Commission in including the candidates of reserved category in the un-reserved category is not in accordance with law. lt is argued that preliminary examination is merely a r‘g / screening test and at that level no reservation is permissible under any category. They submit that once there is no mention of inclusion of the candidates of reserved category in the un-reserved category at the time of preliminary examination, plain interpretation of the ruies has to be made and the Pubiic Service Commission cannot take any advantage of Rule 3 (iii) (b) of the Examination Rules which in fact is for the main examination.— They submit that in previous examinations the Pubiic Service Commission had given different interpretation to the Examination Rules and a separate category-wise list was prepared at the time of preliminary examination 1 where none of the candidates of reserved category were included in the un-reserved category while declaring the said result. According to them, as the preliminary examination is only a screening test and marks of the said examination are not included in the main examination, no reservation is permissible at this stage. They submit that in the year 2003 also Public Service Commission had conducted examination in which also candidates of reserved category were not included in the un-reserved category and this fact is evident from Annexure P—5. 4. Replying to the arguments of the counsel for the petitioners, it has been argued by Shri Sanjay K. Agrawal counsel for respondent/PSC that harmonious construction of the Rules has to be made and if the entire Rule ,3 is read as a whole, the same makes it clear that a meritorious candidate of the reserved category (SC, ST and OBC) have every right to be included in the list of un-reserved category on the basis of marks obtained by them. He submits that Rule 3 (iii) (b) of the Examination Rules makes the position I clear where it is specifically mentioned that the candidates securing higher marks in the reserved category would be included in the list of un—reserved category on the basis of their merit and thereafter a separate list would be prepared for the different categories. He submits that legislative injunction in Rule 3 (iii) (b) of the Examination Rules is that in case a candidate belonging to SC, ST or OBC category, by virtue of marks obtained by him/her finds place in the reserved list, he/she would be shown in the un— reserved category and will not be counted in the reserved vacancies. He submits that Rule 3 (i) cannot be read in isolation and the entire Rule has to be seen as a whole. According to him, unless the procedure adopted by the Public Service Commission is held to be arbitrary or against the known ’ ., q / 3M principle of fair play, ordinarily this Court would not interfere there-with. According to Shri Agrawai, uniess it is estabiished that the procedure adopted by the Public Service Commission is whlolly unfair or arbitrary, no interference can be called for by the Courts. It is argued that un-reserved category includes the candidates belonging to all categories irrespective of caste or community the candidates belong to. In support of his submission, he placed his reliance on the decisions of the Supreme Court in the matter of R.K. Sabharwal and others v. State of Punjab and others reported in (1995) 2 SCC 745, in the matter of Union of India and others v. Virpal Singh Chauhan and others reported in (1995) 6 SCC 684, in the matter of Ritesh R. Sah v. Dr. Y.L. Yamul and others reported in (1996) 3 SCC 253, in the matter of Union of India and another v. Satya Prakash and others reported in (2006) 4 SCC 550, in the matter of Bihari Lal Rada v. Anil Jain (Tinu) and others reported in (2009) 4 SCC 1 and in the matter of Andhra Pradesh Public Service Commission v. Baloji Badhavath and others reported in (2009) 5 SCC 1. ;\ 5. Counsel for the respondent No.1/State adopting the stand taken by the PSC submits that action of the State Government is in accordance with law and there is no infirmity in the same. He submits that in the circular dated 12.5.2009 the State has made it clear that initially the word “general *category” was used but vide Annexure R—2 the word “general” has been replaced by “un-reserved" and as per literal meaning word “un—reserved” includes the other categories also. / 6. Counsel for resporident No. 3 to 6 also adopts the arguments of respondent No.2/ PSC and submits that the petitioners have tiled the petition on the basis of hypothetical situation and based on assumption that on account of inclusion of candidates of different categories under the un- reserved category, the petitioners could not succeed in the preliminary examination whereas they have ,not substantiated their case by way of specific pleadings. He submits that once the petitioners have participated in the examination, being un—successful in the same they have no’ right whatsoever to challenge the procedure of examination. / _.—5_~ “)5 V 7. Heard counsel for the parties and perused the documents available on record. 8. lt is a settled position of law that candidates belonging to reserved category have every right to get their names included in the list of un— reserved category provided they have meritorious position in the reserved category. Merely on the basis of their caste and community, their names cannot be excluded from the list of un-reserved category. ln the case of R.K. Sabharwal and others v. State of Punjab and others reported in (1995) 2 SCC 745 it has been held by the Apex Court as under: “4. 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 the reserve points are to be hlled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of. the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It/ is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes ‘for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strict/y. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general ‘seats. \ _.€_ As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a 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 but so long as the instructions/ Rules providing certain percentage of reservations for the backward classes are operative the same have to be fol/owed. Despite any number of appointees/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.” 29“....(1) Once the number of posts reserved for being filled by reserved category candidates‘in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in Para—5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but elected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. . " / Further in the matter of Ritesh R. Sah v. Dr. Y.L. Yamui and others reported in (1996) 3 SCC 253 it has been held by the Supreme Court as unden 14. In a case ln'dra Sawhney & Ors. vs. Union of India & Ors. (1992 Suppl (3) Supreme Court Cases 217), commonly known as Mandal's case, this Court held thus.'- (SCC p. 735, para 81 1) In the matter of Union of India and others v. Virpal Singh Chauhan and others reported in (1995) 6 SCC 684 It has been held by the Supreme Court as under: @ "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. " 15. In RK. Sabhan/val vs. State of Punjab (1995) 2 Supreme Court Cases, 745 the Constitution Bench of this Court consideredthe question of appointment and promotion and roster points vis a vis reservation and held thus:- (SCC p. 750, para 4) "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 the reserve points are to be tilled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise make the reservation and provides the extent of percentage of posts to be reserved for the said Backward .Class then the percentage has to be followed strict/y. The prescribed percentage cannot be van'ed .or changed simply because some of the members of the Backward Class have already been appointed/promoted against the genera/r seats. #8” As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion ‘of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the $tate Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the backward Classes are operative the same have to be fol/owed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition." 16. In Union of India v. Virpal Singh Chauhan [(1995) 6SSC 684 at 705]it has been held that While determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. 1 7. /n Ajay Kumar Singh v. State of Bihar, [(1994) 4 SCC 401] a three-Judge Bench considered the same question for admission in post graduate medical course. lt was contended that once the candidates seeking admission to post graduate medical course have already enjoyed the benefit of reservation at the stage of their admission to M.B.B.S, course, they are not e/iglble for admission to post—graduate medical course, as reserved candidates. The contention that provision for reservation at the stage of admission to post graduate medical course is uncalled for and contrary to public interest, cannot be accepted. Firstly, the assumption on the basis of whiCh this argument is addressed is untenable. A candidate who is seeking reservation at the stage of admission to post-graduate medical course may not have availed of the benefit of reservation at the stage of admission to M.B.B.S. course as he would have been admitted on his own merit in the general quota [open competition quota but because the competition at the level of post- graduate medical course is extreme/y acute, he ,/V' g3— may have to seek the benefit of reservation. Therefore, the assumption that a student seeking beneht of reservation at the stage of admission to post graduate medical. course has already enjoyed the benefit of resen/ation once previously is not necessarily true. Secondly, there is no rule under Article 15 ~[4] that a student cannot be given the benefit of reservation at more than one stage during the course of his education career. Where to draw the line is not a matter of law but a matter of policy for the State to be evolved keeping in view the larger interests of the society and various other relevant factors. Unless the line drawn by the State is found to be unsustainable under the relevant article, the court cannotinterfere. With regard to the observations in lndra Sawhney case in para 834 and 839 relied upon to contend that the resen/ation for admission ‘ at the post-graduate level is unconstitutional, it was clarified in para 8 that "the Court was not speaking of admission to specialities and super specialities, Moreover, MS or MD are not super-specialities. in any event, this Court did not say that they Were not pennissible". The argument that reservation at post-graduate level is detrimental to the interests of the society was not countenanced holding that "no one will be passed unless he acquires the requisite level of proficiency. Secondly, the academic performance is not guarantee of efficiency in practice. We have seen both in law and medicine that persons with brilliant academic record do not succeed in practice while students who were supposed to be less intelligent come out successful in profession/practice. It is, therefore, wrong to presume that a doctor with good academic/record is bound to prove a better doctor in practice. It may happen or may not”. In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is- irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted againstseats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more ’ disadvantageous position thanthe other less meritorious reserved category candidates. The aforesaid objective can be achieved if after hnding out the candidates from amongst the reserved category who would othen/vise come in the open " merit list and then asking their option for admission into the different colleges which have been kept reserved for reseNed category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in Whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a 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 a open category candidate and not as a reserved category candidate. The Full Bench of the Bombay High Court in Ashwin Prafulla Pimpalwar. v. State of Maharashtra held that selection of candidates for admission to post— graduai medical course in colleges run by or under the control of the State Government shall be regulated in accordance with the prescription in that behalf contained in the rule for selection of the candidates for admission to the post—graduate medical course notified by the Government. The contention that the candidates belonging to the backward classes admitted to M.B.B.S. course selected as general candidates are not eligible for admission as reserved candidates or for scholarship etc. and also for admission to post-graduate medical course as reserved candidates, is illegal for and in negation of Article 15(4). The memorandum issued by the Government on the basis of the statement made by the Minister of Health, Government of Maharashtra was placed before us showing that such candidates, are entitled to all the benefits though’admitte’d on merit basis. The said statement is consistent with Article 15(4).Therefore, the candidates belonging to backward classes but selected as general candidates for admission to graduate or postgraduate medical course are entitled to the concessions or scholarships and other benefits according to the rules or instructions of the State Government or the Central Government as the case may be. The admission to the Medical Colleges for the year 1995-96 in the State of Maharashtra is already over and we are not. inclined to interfere with the admissions already made but we do commend that while deciding and publishing the Rules for admission in the next academic session directions given in this —1/_ judgment should be bome in mind and the rules should be made accordingly. In view of our conclusion, and admittedly the authorities having admitted the candidates belonging to the resen/ed category only against seats meant for reserved category even though they were entitled to be