Case: THE STATE OF TAMIL NADU &amp; ORS Vs. K. SHOBANA ETC. ETC

2. Notification was issued on 12.06.2019 by the Teachers Recruitment Board, appellant No. 3, inviting applications online from eligible candidates for direct recruitment to the post of Post Graduate Assistants and Physical Education Directors, Grade-I in school education and other departments for the year 2018-2019 in Tamil Nadu. The recruitment for various subjects was carried out smoothly, but the filling up of vacancies for the post of Post Graduate Assistants in Chemistry has caused some disputes in which the respondents were applicants. In terms of the notification, a total of 356 posts were notified for Chemistry, out of which 117 vacancies were available for Most Backward Class (MBC) and Denotified Community (DNC) candidates. The break-up of 117 vacancies was of 74 backlog vacancies and 43 current vacancies.3. The respondents, among other candidates, applied for the aforementioned post online and appeared in the written examination on 28.09.2019. Post verification of certificates, a provisional selection list was published by appellant No. 3 on 20.11.2019, but the names of the respondents were absent.4. The respondents claimed that on scrutinizing the list, they found that the meritorious candidates under the MBC quota, who would have been selected irrespective of any reservation, had not been considered under the general vacancies but had been appointed in the MBC/DNC quota against the backlog vacancies. This had caused the respondents not to be appointed. It was their submission that the meritorious candidates were required to be adjusted against vacancies on merit in the General Turn, and it is only thereafter that the backlog vacancies had to be filled in and thereafter, lastly, the current vacancies under the quota had to be adjusted.5. The aforesaid resulted in filing of writ petitions before the High Court of Madras seeking quashing of the provisional selection list and for appointment of these respondents.

Reasoning: 7. The Section propagates the social philosophy of vacancies for reserved category not lapsing in case there are inadequate number of candidates. Thus, instead of offering it to the general category, a provision has been made to carry forward those vacancies for one year. In case even in the succeeding year, these vacancies are not filled in, then it goes to other categories.On the principle of how the persons in the merit list, irrespective of their community, would not affect the reservation as they would be adjusted against the general candidates were supported by the judicial pronouncement in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Ors. (2007) 8 SCC 785.   In para 9 of the judgment, the difference between the nature of vertical reservation and horizontal reservation has been highlighted to opine that the candidates belonging to the backward class may compete for non reserved posts for which they are appointed on merit, their number will not be counted against quota reserved for respective backward classes. This is stated to be the consistent view starting from the judgment in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217. , R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745   , Union of India vs. Virpal Singh Chauhan (1995) 6 SCC 684     and Ritesh R Sah Vs. Dr. Y.L. Yamul (1996) 3 SCC 253 .   This principle does not to apply for horizontal (special) reservations. For example, where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of Scheduled Caste women. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes.19. A similar view has been taken in Anil Kumar Gupta & Ors. vs. State of U.P. & Ors. (1995) 5 SCC 173.   by opining on the basis of the judgment in Indra Sawhneys case (supra) that the proper and correct course is to first fill up the open quota seats on the basis of merit, and then fill up each of the social reservation quotas. If the quota fixed for horizontal reservations is already satisfied, no further question would arise while dealing with such horizontal reservations (which is not the case in the present appeals).23. First, we would like to turn to the judgment of the learned Single Judge which, in our view, is absolutely lucid and clear to the controversy and the conclusion. Learned Single Judge set forth the controversy in the first paragraph itself, i.e., whether the candidates who secured high marks should have been fitted in the General Turn but have been fitted in MBC/DNC Quota for the last year, which in turn has deprived certain candidates of selection. It has been rightly noted that the entire confusion has arisen due to the wrong reading of provisions of Section 27 of the Act, which provides for reservation for appointment. Section 27(f) merely states that if the required number of candidates belonging to the community which fall under reservation are not available, then, the vacancies, for which selection could not be made in the current year, should be treated as backlog vacancies. In the subsequent recruitment, the backlog vacancies and the current vacancies for the particular community must be separately announced, and the direct recruitment must first accommodate the backlog vacancies and thereafter only, the current vacancies have to be accommodated. The provision had been read by the appellants as if the backlog vacancies must be filled in by MBC/DNC category candidates, irrespective of the merit of the candidate or the rank secured by him/her. The highest mark that was secured was 109 and, up to 90 marks, the candidates were fitted in General Turn and thus those candidates will have to be selected under the General Turn, irrespective of their community. It is these candidates who had been fitted in the backlog vacancy which has caused the problem.24. The Division Bench vide the impugned order also opined in the same terms and agreed with the interpretation of Section 27 of the Act by further observing that the proviso which contains the word first does not have any relation to the offer and placement of such reserved category candidates, including, Most Backward Classes who attain their position by way of merit in the open category/General Turn vacancies.25. We are in complete agreement with the view taken by the courts below as there really could not have been any cavil to the aforesaid. The principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt or argued in view of the catena of judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be read in a manner, apart from any other reason, to negate this very principle.26. It has been rightly pointed out by learned counsel for the respondents that the issue arising from seniority of filling the backlog vacancies first was not even urged in the courts below and was sought to be raised for the first time before this Court, and elaborately at that, which plea finally fizzled out, as it was conceded that there is no factual basis for the same.27. There can be no doubt about the proposition that if a word is used in a Statue, it cannot be made otiose as held in Hardeep Singh (supra). However, that is not the factual scenario in this case. The question arises as to at which stage would Section 27 of the Act operates, and where in the list, the application of the first principle would apply. Section 27 deals with the reservation. It has nothing to do with the general candidates list/ General Turn vacancies. Such of the candidates who have made it on their own merit albeit, from reserved category, have not sought the benefit of the reservation. Thus, Section 27 of the Act would have nothing to do up to that point. Section 27 would apply only when the reservation principle begins, which is after filling up of the seats on merit. Thus, the word first would apply at that stage, i.e., the backlog vacancies have to be filled in first and the current vacancies to be filled in thereafter. At the stage when the general category seats are being filled, there is thus no question of any carry forward or current vacancies for reserved category arising at all.28. We may also note that the manner of filling up the seats has been well enunciated in the judgment in K.R. Shanthis case (supra) by the Madras High Court itself and appears to have been consistently followed. May be the peculiarity of the situation arising in Chemistry subject (which is in question) gives rise to this problem in the current year and such a problem had not apparently arisen earlier. In fact, there is no manner of doubt after the latest judgment of this Court in Saurav Yadav & Ors. case (supra) which again refers to the steps which have to be taken to fill in those vacancies. The steps are clear in their terms : in the given facts of the case, application of those principles or steps would imply:(a) the general merit list to be first filled in;(b) the backlog vacancies of the particular reserved category to be thereafter filled in first; and(c) the remaining reserved vacancies for the current year to be filled thereafter.29. It appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in. The performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect! The increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.(These observations are in the context of the controversy before us as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration before this Court.) Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC/DNC categories, if those seats would have remained vacant.