THE STATE OF TAMIL NADU & ORS. versus K. SHOBANA ETC. ETC.
[2021] 2 S.C.R. 1164, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Ratio
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THE STATE OF TAMIL NADU & ORS.
v.
K. SHOBANA ETC. ETC.
(Civil Appeal Nos. 3745-3754 of 2020)
MARCH 05, 2021
[SANJAY KISHAN KAUL, DINESH MAHESHWARI AND
HRISHIKESH ROY, JJ.]
Tamil Nadu Government Servants (Conditions of Service) Act,
2016 – s.27(f) – Reservation for appointment – Manner of filling
up the seats – Direct recruitment – Post Graduate Assistants in
Chemistry – 356 posts notified wherein 117 vacancies (74 backlog
and 43 current vacancies) were available for Most Backward Class
(MBC) and Denotified Community (DNC) candidates – Provisional
selection list published – Meritorious candidates under the MBC
quota were appointed in the MBC/DNC quota against the backlog
vacancies – Challenged by respondents, by filing writ petition for
quashing of the selection list and for their appointment – Succeeded
before Single Judge – Writ appeal – Dismissed – Held: Entire
confusion has arisen due to the wrong reading of s.27 providing
for reservation for appointment – s.27(f) merely states that if the
required number of candidates belonging to the reserved community
are not available, then the vacancies, for which selection could not
be made in the current year, should be treated as backlog vacancies
– In subsequent recruitment, the backlog vacancies and the current
vacancies for the particular community must be separately
announced – 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 candidate’s merit/rank – Such
reservation category candidates who make it on their own merit
have to be adjusted against the general category candidates –
s.27(f) cannot be read in a manner to negate this principle – s.27
deals with the reservation – It has nothing to do with the general
candidates list/General Turn vacancies – Such candidates who have
made it on their own merit albeit, from reserved category, have not
sought the benefit of the reservation – Thus, s.27 would have nothing
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to do up to that point – It would apply only when the reservation
principle begins, which is after filling up of the seats on merit –
Thus, the word “first” in proviso 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 – View
taken by the courts below agreed with.
Dismissing the appeals, the Court
HELD: 1.1 The judgment of the Single Judge is absolutely
lucid and clear to the controversy and the conclusion. 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
Tamil Nadu Government Servants (Conditions of Service) Act,
2016, 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. The Division Bench vide the
impugned order also opined in the same terms and agreed with
THE STATE OF TAMIL NADU v. K. SHOBANA
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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. [Paras 23, 24][1177-F-H; 1178-A-D]
1.2 This Court is 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. Section 27(f)
of the Act cannot be read in a manner to negate this very principle.
It has been rightly pointed out by 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. [Paras 25, 26][1178-D-G]
1.3 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. The manner of filling up the seats has been well enunciated
in the judgment in K.R. Shanthi’s case 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
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no manner of doubt after the latest judgment of this Court in
Saurav Yadav & Ors. case 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.
It appears that such a situation may not arise in the future
as all backlog vacancies are stated to have been filled in. [Paras
27-29][1178-H; 1179-A-F]
Hardeep Singh vs. State of Punjab & Ors. (2014) 3
SCC 92 : [2014] 2 SCR 1 – distinguished.
K.R. Shanthi vs. Secretary to Government, Education
Department, Chennai & Anr. (2012) 7 MLJ 241 –
approved.
Saurav Yadav and Ors. vs. State of Uttar Pradesh &
Ors. 2020 SCC OnLine SC 1034 – relied on.
Rajesh Kumar Daria vs. Rajasthan Public Service
Commission and Ors. (2007) 8 SCC 785 : [2007] 8
SCR 972; Indra Sawhney v. Union of India 1992 Supp
(3) SCC 217 : [1992] 2 Suppl. SCR 454; R.K.
Sabharwal vs. State of Punjab (1995) 2 SCC 745 :
[1995] 2 SCR 35; Union of India vs. Virpal Singh
Chauhan [1995] 4 Suppl. SCR 158; Ritesh R Sah vs.
Dr. Y.L. Yamul [1996] 2 SCR 695; Anil Kumar Gupta &
Ors. vs. State of U.P. & Ors. [1995] 2 Suppl. SCR 396
– referred to.
Case Law Reference
[2014] 2 SCR 1
distinguished
para 13
[2007] 8 SCR 972
referred to
para 18
[1992] 2 Suppl. SCR 454
referred to
para 18
[1995] 2 SCR 35
referred to
para 18
THE STATE OF TAMIL NADU v. K. SHOBANA
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[1995] 4 Suppl. SCR 158
referred to
para 18
[1996] 2 SCR 695
referred to
para 18
[1995] 2 Suppl. SCR 396
referred to
para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3745-
3754 of 2020
From the Judgment and Order dated 19.03.2020 of the High Court
of Judicature at Madras in W.A. Nos. 419 and 421 to 429 of 2020.
Balaji Srinivasan, AAG, C. Aryama Sundaram, Sr. Adv., Vinodh
Kanna B., Abhishek Gupta, Arindam Ghosh, Advs. for the Appellants.
V. Giri, N.L. Rajah, Mrs. V. Mohana, S. Nagamuthu, Sr. Advs.,
Vikas Mehta, Varun Singh, Ms. Ankita Gupta, K. Balu, M.R. Jothimanian,
B. Karunakaran, S. Gowthaman, M.P. Parthiban, A.S. Vairawan, Mani
Prabu, Santhosh, R. Sudhakaran, K.V. Jagdishvaran, Ms. G. Indira, Ms.
Promila, S. Thananjayan, Advs. for the Respondents.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The perennial problem of working out the reservation system
given the scarce employment sources has given rise to the present dispute.
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.
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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.
6. The controversy really arose and arises from the interpretation
of Section 27(f) of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016 (hereinafter referred to as “the Act”). The relevant
Section reads as under:
“27. Reservation for Appointments-
(f) If qualified and suitable candidates belonging to any of the
Backward Classes, Backward Class Muslims including the Most
Backward Classes and Denotified Communities are not available
for selection for appointment by recruitment by transfer or by
promotion in the turns allotted to them, the turns so allotted shall
lapse and the selection for appointment for the vacancies
shall be
made by the next turn in the order of rotation:
Provided also that in the case of selection for appointment by
direct recruitment, with effect on and from the 1st April 1989,
there shall be a ban on dereservation of vacancies reserved for
the candidates belonging to any of the Scheduled Castes and
Scheduled Tribes, Most Backward Classes and Denotified
Communities to be appointed by direct recruitment. But, the above
ban on dereservation of vacancies shall not be applicable to the
vacancies reserved for the Backward Classes (other than Most
Backward Classes and Denotified Communities), Backward Class
Muslims and, therefore, if qualified and suitable candidates
belonging to any of the Backward Classes (other than Most
Backward Classes and Denotified Communities), Backward Class
THE STATE OF TAMIL NADU v. K. SHOBANA
[SANJAY KISHAN KAUL, J.]
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Muslims are not available for appointment, the turn so allotted to
them shall lapse and the vacancy shall be filled by the next turn in
the order of rotation. If sufficient number of qualified and suitable
candidates belonging to any of the Scheduled Castes and Scheduled
Tribes, Most Backward Classes and Denotified Communities are
not available for selection for appointment for the vacancies
reserved for them by direct recruitment in the first attempt of
recruitment, then, a second attempt shall be made for selection of
the candidates belonging to the respective communities by direct
recruitment in the same recruitment year or as early as possible
before the next direct recruitment for selection of candidates
against such vacancies. If the required number of candidates
belonging to such communities are not available even then, the
vacancies for which selection could not be made shall remain
unfilled until the next recruitment year treating them as “backlog”
vacancies. In the subsequent year, when direct recruitment is made
for the vacancies of that year, namely, the current vacancies, the
“backlog” vacancies shall also be announced for direct recruitment,
keeping the vacancies of the particular recruitment year,
namely, the current year vacancies and the “backlog”
vacancies as two distinct groups as illustrated in Schedule-
IX. The selection for appointment for the next direct
recruitment shall be made first for the
“backlog” vacancies
and then the normal rotation shall be followed:
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. However, crucial issue arises from the last
sentence of third proviso to Section 27(f) which provides for the selection
of appointment for the next direct recruitment to be made “first for
backlog vacancies and then the normal rotation shall be followed”.
Meaning, thus, has to be assigned to what is implied by the expression
“first” vis-à-vis the backlog vacancies.
8. It is the case of the appellants that the clear provisions of the
Section must be given effect to, which in turn, would imply that on the
basis of merit the backlog vacancies had to be first filled in. After those
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vacancies were filled, the appointment had to be made on merit in the
General Turn.Thus, such of the candidates who made it on merit, would
be adjusted against those seats,while the remaining would be adjusted
against the reserved vacancies.
9. The respondents succeeded before the learned Single Judge in
terms of judgment dated 09.01.2020 and the Writ Appeals preferred
against the same was dismissed vide impugned order dated 19.03.2020.
10. Learned senior counsel for the appellants Shri C. Aryama
Sundaram contented that vested right can only be for 69% reservation,
while if the view propounded by the respondents was to be taken into
account, it would lead to more than 69% reservation. There had been no
reduction in reservation below the statutory limit, and that coming in the
open category did not mean that they are not entitled to benefit of the
reserved category.
11. An argument was initially sought to be propounded that the
backlog vacancies relating to the earlier year would require seniority to
be given, and if the respondents’ plea was accepted, persons less
meritorious in that category would be entitled to seniority. However, in
subsequent proceedings, it transpired that this was not the factual position,
as the backlog vacancies would also take the seniority from the year
when they were so filled in.
12. Learned senior counsel sought to contend that the expression
used in Section 27(f) of the Act must be given its natural meaning and
the word
“first” had been used by the legislature in its wisdom and with
an intent which could not be made otiose.
13. The appellant relied on Hardeep Singh Vs. State of Punjab
& Ors.1
wherein, though the disputerelated to the interpretation of the
provisions of Section 319 of the Cr.P.C., what is relevant is the proposition
sought to be laid down.It held that it was a settled principle of law that if
an interpretation leads to a conclusion that the word used by the legislature
is redundant, that should be avoided as the presumption is that the
legislature has deliberately and consciously used the word of carrying
out the purpose of the Act. The legal maxim a verbislegis non
estrecedendum which means, “from the words of law, there must be no
1 (2014) 3 SCC 92, paras 42 to 45.
THE STATE OF TAMIL NADU v. K. SHOBANA
[SANJAY KISHAN KAUL, J.]
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departure” has to be kept in mind. There could be no assumption that a
legislature committed a mistake when the language of the statute was
plain and ambiguous. No word in a Statute has to be construed as a
surplusage nor could any word be rendered ineffective or purposeless if
the Court required to carry out the legislative intent fully and completely.
14. We may also note the submission of learned senior counsel
for the intervenors Mr. S. Nagamuthu, supporting the plea of the
appellants because his clients are the beneficiaries of the manner in
which the Section is sought to be interpreted by the appellants, and thus
certain other reserved categories benefited from the same. The additional
submission he made was in the context of Article 16 (4B) of the
Constitution of India which reads as under:
“16: Equality of opportunity in matters of public
employment-
(4B)- Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being
filled up in that year in accordance with any provision for
reservation made under clause (4) or in accordance with any
provision for reservation made under clause (4) or clause (4A) as
a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being
filled up for determining the ceiling of fifty per cent
reservation on
total number of vacancies of that year.”
15. The submission advanced was that what the appellants were
doing was in consonance with the same, as the reservation carried
forward was to be filled in as a separate class of vacancies, and not to
be considered together with a vacancy of that year in which they are
being filled in keeping in mind that the seats were limited.
16. On the other hand, learned senior counsel for the respondents
Mr. N.L. Rajah contended that the correct methodology was that first,
the list has to be drawn up on the basis of merit, and then only the issue
of application of reservation would arise.
17. Thus, first the meritorious candidates would take their place
in the general merit list where no reservation would apply. Reservation
would apply thereafter, whereby the backlog vacancies would be filled
in first, followed by the current year vacancies. In a nutshell, his contention
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was that Section 27 of the Act has nothing to do with the selection based
on merit, and only applies to the mode of reservation post that stage.
Two lists for “the distinct groups” are required to be made as provided
for the reserved vacancies, which would be- first, a backlog list and
then, secondly, the current list. The meritorious selected candidates have
nothing to do with this part of the list. Our attention was also drawn to
the provisional selection list dated 20.11.2019 to point out how the merit
list had been drawn up. The submission, thus, was that this is the consistent
and correct practice, and the fact that this problem arose only in case of
Chemistry would make no difference even though practically now all
the backlog vacancies would be filled in.
18. Learned counsel supported his contention by reference to
certain judicial pronouncements. 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.2 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 India3, R.K. Sabharwal vs. State of Punjab4, Union of
India vs. Virpal Singh Chauhan5 and Ritesh R Sah Vs. Dr. Y.L.
Yamul6. 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
2 (2007) 8 SCC 785.
31992 Supp(3) SCC 217.
4 (1995) 2SCC 745.
5 (1995) 6 SCC 684.
6 (1996) 3 SCC 253.
THE STATE OF TAMIL NADU v. K. SHOBANA
[SANJAY KISHAN KAUL, J.]
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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.7 by opining on the basis of the judgment in
Indra Sawhney’s 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).
20. Learned counsel also sought to contend that insofar as Tamil
Nadu is concerned, the matter was settled long time back by the judgment
of the High Court in K.R. Shanthi vs. Secretary to Government,
Education Department, Chennai & Anr.8 It was clearly observed that
candidates selected on merit under open quota should not be adjusted
against reserved vacancy and the inter se seniority of candidates selected
and appointed in that selection should be only on merit and not on the
basis of roster points. It would be relevant to extract the steps which
were opined as required to be taken and set out in para 14:
 “14. A perusal of the above judgments would keep at least two
things beyond any pale of doubt. Firstly, the roster is not vacancy
based,
but the same is only post based. It identifies the number of
posts earmarked for various categories under the vertical
reservations and posts left behind for open quota as well as special
reservations. Secondly, after so identifying the posts, it should be
calculated as to how many vacancies are to be filled up under
various categories in the current selection. If once the number of
vacancies earmarked for each category in the current selection is
identified by using the Roster, thereafter the Roster will have no
further role to play in the matter of selection. After identifying the
number of vacancies earmarked for various categories, the
selection for each category has to be made purely based on merit
following the method detailed below:
7 (1995) 5 SCC 173.
8 (2012) 7 MLJ 241 paras 14, 18 and 19, incidentally authored by S. Nagamuthu, J., as
he then was, though of course the principle of promissory estopple cannot apply while
he raises his contentions!
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First Step:
(i) As against the number of vacancies identified for open quota,
irrespective of caste, sex, physically challenged, etc., everyone
should be allowed to compete based on merits.
(ii) The meritorious candidates should be first selected as against
the above vacancies under open quota.
Second Step:
(iii) After completing the first step, moving on to the vertical
reservation categories, selection has to be made for each category
from amongst the remaining candidates belonging to the particular
reserved category (vertical) based on merits.
Third Step:
(iv) After completing the second step, horizontal reservation which
cuts across the vertical reservation has to be verified as to whether
the required number of candidates who are otherwise entitled to
be appointed under the horizontal reservation have been selected
under the vertical reservation.
(v) On such verification, if it is found that sufficient number of
candidates to satisfy the special reservation (horizontal reservation)
have not been selected, then required corresponding number of
special reservation candidates shall have to be taken and adjusted/
accommodated as against social reservation categories by deleting
the corresponding number of candidates therefrom.
(vi) Even while filling up the vacancies in the vertical reservation,
if, sufficient number of candidates falling under the horizontal
reservation have been appointed, then, there will be no more
appointment exclusively under the
horizontal reservation.
Caution:
(vii) At any rate, the candidates who were selected as against a
post under open quota shall not be adjusted against the reserved
quota under vertical reservations.”
21. Lastly, referring to the recent judgment of this Court in Saurav
Yadav and Ors. vs. State of Uttar Pradesh & Ors.9 This judgment
again set forth the steps to be taken while implementing this list in para
14 as under:
9 2020 SCC OnLine SC 1034.
THE STATE OF TAMIL NADU v. K. SHOBANA
[SANJAY KISHAN KAUL, J.]
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“14. The observations in the Order dated 20.02.2019 passed by
the Division Bench of the High Court of Judicature at Allahabad
in Pramod Kumar Singh v. State of U.P.8 are also relied upon
by the State Government. In that case the horizontal reservation
for dependants of Freedom Fighters, Ex. Servicemen and women
in the very same selection for Police Constables was in issue.
The Division Bench of the High Court dealt with the Note
submitted on behalf of the State which indicated the steps
undertaken to determine and fill up seats for various categories
as under:—
“The procedure as set forth for completion of the recruitment
exercise is then described in the following terms:
“Step 3.1 From List-1 select 19158 candidates in open category
in order of their merit (Total Marks). This list may contain
candidates from any state or any reserved categories (OBC/SC/
ST) also. Let us call this list as List 1- A.
Step 3.2 Now select 10345 candidates of OBC Category from
the candidates left after Step 3.1 from the List-1. This will include
only OBC candidates with domicile of U.P. Let us call this list
as List-1-B.
Step 3.3 Now select 8046 candidates of SC Category from the
candidates left after Step 3.1 from the List-1. This will include
only SC candidates with domicile of U.P. let us call this list as List
1-C.
Step 3.4 Now select 766 candidates of ST Category from the
candidates left after Step 3.1 from the List-1. This will
include
only ST candidates with domicile of U.P. let us call this list as List
1-D.
Step 3.5 If number of candidates in List-1-C is less than the
required number 8046 for SC Candidates from shortage will be
filled from ST candidates remaining after step 3.4 if available. If
required quota of SC remains unfilled, then number of shortage
posts should be shown separately. Similarly if number of for ST
candidates then shortage will be filled from SC candidates
remaining after Step 3.3, if available. If required of ST still remains
unfilled then number of shortage posts should be shown separately.
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Step 3.6 In this way four lists of candidates will be prepared as
follows:
List-1-A (OC) List-1-B (OBC) List-1-C (SC) List-1-D (ST)
19158 (will include GEN, OBC, ST of any state) 10345 (Only
OBC, domicile of U.P.) 8046 (Only SC, domicile of U.P.) 766
(Only ST, domicile of U.P.)
Step 4 prepare a separate list of remaining candidates from List-
1 who are not included in List-1-A, 1-B, 1-C and 1-D. Let us call
this list as List-1.
Step 4.1 Now count the number of DFF candidates belonging to
General Category (having domicile of U.P.) from the List-1-A.
The candidates should not be OBC/SC/ST category. If number
of candidates is 383 or more, then nothing needs to be done,
otherwise select the shortfall of candidates of general category
belonging to DFF on merit from the List-2 (Only candidates
not belonging to OBC, SC & ST category) and adjust/insert
them in after removing equal number of candidates from the bottom
of List-1-A except General Category DFF, Ex-Servicemen,
female and home guard candidates (any candidate who is eligible
for horizontal reservation)”.””
22. We have examined the contentions of the parties.
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
List-1-A (OC) 
List-1-B (OBC) 
List-1-C (SC) 
List-1-D (ST) 
19158 (will include 
GEN, OBC, ST of 
any state) 
10345 (Only OBC, 
domicile of U.P.) 
8046 (Only SC, 
domicile of U.P.) 
766 (Only ST, 
domicile of U.P.) 
THE STATE OF TAMIL NADU v. K. SHOBANA
[SANJAY KISHAN KAUL, J.]
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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
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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 upto 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. Shanthi’s 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.10Though, of
course, it would imply that some of the other candidates from different
10 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.
THE STATE OF TAMIL NADU v. K. SHOBANA
[SANJAY KISHAN KAUL, J.]
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reserved categories would not be entitled to fill in the reserved seats of
MBC/DNC categories, if those seats would have remained vacant.
30. The result of the aforesaid is that the appeals are dismissed in
the aforesaid terms, leaving the parties to bear their own costs.
31. We may note that apparently in pursuance to our directions,
the candidates as per the impugned judgment may possibly have already
joined.
Divya Pandey
Appeals dismissed.