Holding

OBC candidates selected on merit may opt for a preference from the OBC‑reserved quota but are counted as open‑category candidates for computing reservation, so their preference does not exhaust the reserved quota.

Summary

The Union of India appealed a High Court order that had granted relief to several OBC candidates, including the petitioner, who were denied appointments despite being recommended by the UPSC for the 174 OBC‑reserved vacancies. The respondents argued that OBC candidates selected on merit (i.e., without resorting to the relaxed standard) could exercise a preference for OBC‑reserved posts but should be treated as open‑category candidates for the purpose of computing the reservation percentage. The Supreme Court examined Rule 2 and Rule 16 of the Civil Services Examination Rules, 1996, and relevant precedents such as Indra Sawhney and Ritesh R. Sah. It held that while such candidates may opt for a preference from the reserved quota, they are deemed to have been allotted a seat as an open‑category candidate and therefore do not exhaust the OBC‑reserved quota. Consequently, the quota remained unexhausted and the Union was directed to allocate the pending posts to the respondents. The appeal was dismissed and costs were awarded to the respondents.

Issues considered

Whether OBC candidates recommended by the UPSC on merit can be considered for preference from the OBC‑reserved quota and whether such preference exhausts the reserved quota.
How the reservation percentage should be computed for OBC candidates who are selected on merit but exercise a preference for reserved posts.
Interpretation of Rule 2 and Rule 16 of the Civil Services Examination Rules, 1996 in the context of reservation and preference.

Legislation cited

Constitution of Indias. Article 16(4)

Subjects

reservationOBCCivil Services Examinationmeritrelaxed standardquotapreferencereservation percentagerule interpretation

Judgment

UNION OF INDIA AND ANR. A
v.
SA TY A PRAKASH AND ORS.

APRIL 5, 2006

[H.K. SEMA AND DR. AR. LAKSHMANAN, JJ.] B

Service Law:

Reservation in appointments-Civil Services-Reserved category
candidates-Quali/Ying on merit-Computation ofpercentage of reservation- C
OBC candidates-Recommended by UPSC on merit-Opting preference from
quota reserved for OBC candidates as per relaxed standard-Held, such
candidates will have option of preference from quota for OBC candidates,
but while computing percentage of reservation they will be deemed to have
been allotted seats as open catego1y candidates-Civil Services Examination
Rules, 1996-rr. 2 and 16. D
Respondent, a candidate belonging to Other Backward Class (OBC),
appeared in the Civil Services Examination from the reserved quota ofOBC.
A total number of737 candidates were recommended by the Union Public
Service Commission out of whom 174 vacancies were reserved for OBC E
candidates. Though all the 174 vacancies were allocated to the OBC category
candidates, but the respondent whose name figured at serial No. 606 was
denied the job, whereas a candidate whose name found place at serial no. 620
was appointed. The respondent filed a writ petition in the High Court. Some
other similarly situated OBC candidates also filed writ petitions. The stand
of the Union of India was that the quota reserved for the OBC from the F
relaxed standard exhausted due to the preference opted by the OBC candidates
who were recommended by the Commission from open category, i.e. on merit.
The High Court allowed the writ petitions. Aggrieved, the Union of India filed
the present appeals.

On the question: whether those OBC candidates who were selected on G
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 from
allocation of service:
789 H
790 SL:PRE!'v!E COURT REPORTS [2006 I 3 S.C.R.

A Dismissing the appeal, the Court

HELD I.I. While a reserved category candidate recommended by the
Commission without resorting to the relaxed standard will have the option of
preference from the reserved category recommended by the Commission by
resorting to relaxed standard, but while computing the quota/percentage of
B reservation he/she will be deemed to have been allotted seat as an open
category candidate (i.e. on merit) and not as a reserved category candidate
recommended by the Commission by resorting to relaxed standard. [797-D-Ej

1.2. If a candidate of Scheduled Caste, Scheduled Tribe and Other
Backward Class, who has been recommended by the Commission without
C 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 and in
such 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
D after allocation of all the candidates who can be allocated to a service/post in
accordance with their preference. [797-E-FJ

Indra Smrh11ey v. Uniu11 o/ !11dia. 119921 Supp. 3 SCC 217; R.K.
Sabharwal v. State of Punjab. [ 19951 2 SCC 745; L'nivn of India v. Virpu/
Singh Chauhan, [ 1995[ 6 SCC 684 and Ritesh R. Sah v. Dr. Y.l. Yamul and
E Ors., Jl996J 3 sec 253, relied on.

1.3. In the instant case, the Commission recommended one to one
vacancy. Against the OBC category 174 candidates were recommended against
174 posts. By opting a preference, the quota reserved for OBC candidate
does not exhaust. There are still vacancies after allocation of all the candidates
F in order of preference who can be a !lotted 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. j797-G-H; 798-AJ

G CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5505-5507 of
2003.

From the Judgment and Order dated 10.9.2002 of the High Court of Delhi
in C.W.P. Nos. 3561, 3562of1999 and 867 of2000.
WITH
H Civil Appeal No. 7004 of2003.
-- U.0.1. v. SA TY A PRAKASH [SEMA, .!.]

T.S. Doabia, Ms. Sunita Shanna, P. Panneswaran and D.S. Mahra for the
Appellants.
791
A

,.,

• L. Nageswar Rao, Ranjit Kumar, Shree Prakash Sinha, Shekhar Kr., S.
Chandra Shekhar, Gopal Prasad and Pavan Kumar for the Respondents.

The Judgment of the Court was delivered by B
H.K. SEMA, J. These appeals have been preferred by the Union of
India aggrieved by the judgment and orders dated 10.9.2002 (in Civil Appeal
Nos. 5505-07/2003) and 29.4.2003 (in Civil Appeal No. 7004/2003) of the Division
Bench of the High Court of Delhi in Civil Writ Petition Nos. 3561/99, 3562/
~-
99, 867/2000 and 2751/2000 respectively. For brevity, we are taking facts from C
Civil Appeal No. 5505 of 2003. The respondent belongs to Other Backward
Class (OBC). Reservations were made for Scheduled Castes, Scheduled Tribes
and OBC category candidates in Civil Services Examination (CSE) Rules, 1996.
The respondent appeared from the reserved quota of OBC. The Union Public
Service Commission (Commission) recommended in all 739 candidates, out of D
which 2 candidates were withheld and 737 candidates were recommended one
to one for appointment against the vacant posts from various categories.

The following chart would make clear the manner in which the different
categories of jobs were to be allocated to different categories of candidates.
Category/Cadre !AS IFS !PS Gr.A Gr.B Total E
General 38 07 48 157 133 383
OBC 20 03 25 72 54 174
SC 12 03 15 56 39 125
ST (X5 01 08 23 19 57 F
Total 76 14 96 308 245 739

The chart shows that against the OBC category total 174 candidates
were recommended for 174 vacancies. In these appeals we are concerned only
with OBC category candidates. From the OBC category, three candidates were G

- included in the general merit list. 36 OBC category candidates were also
included in the general merit list on the recommendation of the Commission.
However, a preference was given from the relaxed quota, reserved for the OBC
category candidates. Despite 174 vacancies eannarked for the OBC category
candidates, and the candidates were recommended for 174 vacancies, only
138 OBC category candidates were provided with the job and the rest 36 OBC H
792 SUPREME COURT REPORTS [2006] 3 S.C.R.

A category candidates (respondents) had been denied job. By way of illustration.
a candidate whose name figured at SI. No. 620 in the merit list had been
provided with a job but the respondent herein. who was at SI. No. 606 in the
merit list had been denied the job.

We have heard Mr. T.S. Doabia, learned Senior counsel for the Union
B of India. Mr. L. Nageswar Rao. Sr. Adv. Mr. Ranjit Kumar, Sr. Adv. and Mr.
Gopal Prasad. learned counsel for the respondents.
- ...

The principal contention of Mr. T.S. Doabia is that since there were only
174 vacancies in the OBC category in various services and posts, certain
C candidates belonging to that category and recommended by the Commission
......
for appointment against the vacancies for OBC category candidates in services/
posts could not be allocated to any services/posts due to lack of vacancies.
It is his further contention that the quota reserved for the OBC from the
relaxed standard exhausted due to the preference opted by the OBC candidates
who were recommended by the Commission from open category i.e. on merit.
D
Per contra. it is contended by Mr. Nageswar Rao. Ranjit Kumar and
Gopal Prasad that such submission is cnntrary to the note appended to Rule
2 of the Civil Services Examination Rules. 1996 (in short the Rules) which says
that if he/she is not allotted to any on.: of the services/posts for which he/
she has indicated preference, he/she shall be allotted to any of the remaining
E 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 preferences.

It is their further contention that the stand taken by the Union of India
also runs to the teeth of the proviso to sub-Rule 2 of Rule 16 of the Rules
F which says that the candidates belonging to the Scheduled Castes. the
Scheduled Tribes or the Other Backward Classes who have been recommended
by the Commission without resorting to the relaxed standard, referred to in
the Rules, shall not be adjusted against the vacancies reserved for the
Scheduled Castes, the Scheduled Tribes and the Other backward classes.
They further contended that the reserved category candidate entitled to
G service/post on the basis of his/her own merit in the general category will
have the option of his preference kept reserved for the reserved category but
while computing the percentage of reservation, he/she will be deemed to have
been computed as an open category candidate (general candidate) and not
as a reserved category candidate.
-
H The sole question tliat revolves around for determination is, as to
U.0.1. v. SATY A PRAKASH [SEMA, J.] 793
whether those OBC candidates, who were selected on merit and were placed A
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 from allocation of service.

In our view, the present controversy is no more res-integra in view of
the judgment of this Court in the case of Indra Sawhney v. Union of India, B
[1992] Supp 3 SCC 217. This Court at (SCC p. 735, para 811) held 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; C
they will not be counted against the quota reserved for Scheduled
Castes; they will be treated as open competition candidates."

In the case of R. K. Sabharwal v. State of Punjab, [ 1995] 2 SCC 745, a
Constitution Bench of this Cou11 considered the question of appointment and D
promotion and roster points vis-a-vis reservation and held at sec p. 750, para
4 as under:

"When a percentage ofreservation 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 filled from E
amongst the members of reserved 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 F
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 if not adequately represented in the
Services under the State. It is, therefore, incumbent on the State G
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 H
794 SUPREME COURT REPORTS [20061 3 S.C.R.

A percentage of posts to be reserved for the said Backward Class then
the percentage has to be followed strictly. 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/
B 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
c 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 followed. 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:·
D
In Uniun of lndw v. Virpul Singh Chauhan, [ 1995 J 6 SCC 684 it has
been held by this Court (at page SCC 705) 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
E (and not by virtue of rule of reservation) shall not be counted as reserved
category candidates.

This Court in Ritesh R. Suh v. Dr. Y.l. Ywnul & Ors., [1996) 3 SCC 253
after considering the various decisions of this Court, as referred to above, has
come to the conclusion at sec p. 261-262 as under:
F "Jn 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 against seats reserved
for reserved category. But at the same time the provisions should be
G 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 than
the other less, meritorious reserved category candidates. The aforesaid
objective can be achieved if after finding out the candidates from
amongst the reserved category who would otherwise come in the
open merit list and then asking their option for admission into the
H
U.O.I. v. SATY A PRAKASH [SEMA, J.] 795

different colleges which have been kept reserved for reserved category A
and thereafter the cases of Jess 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 B
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 an open
category candidate and not as a reserved category candidate. "

(emphasis supplied) C
It will be noticed that the decision in Rite~h R. Sah (supra) was rendered
on 15th February, 1996. CSE Rules, 1996 were notified on 14. 12.1996. That is
the fall out of the decision of this Court in Ritesh R. Sah (supra).

The relevant rules for our consideration for this purpose are Rule 2 and
Rule 16 of the Rules. Rule 2 and Rule 16 read as under: D
"2. A candidate shall be required to indicate in his/her application
fonn for the Main Examination his/her order of preferences for various
services/posts for which he/she would like to be considered for
appointment in case he/she is recommended for appointment by Union
Public Commission. E
A candidate who wishes to be considered for IAS/IPS shall be required
to indicate in his/her application if he/she wou Id like to be considered
for allotment to the State to which he/she belongs in case he/she is
appointed to the IAS/IPS.
F
NOTE: - The candidate is advised to be very careful while indicating
preferences for various services/posts. In th is connection, attention
is also invited to Rule 18 of the Rules. The candidate is also advised
to indicate all the services/posts in the order of preference in his/her
application form. In case he/she does not give any preference for any
service/posts, it will be assumed that he/she has no specific preference G
for those services. If he/she is not allotted to any one of the services!
posts for which he/she has indicated preference, he/she shall be
allotted to any of the remaining services/posts in which there are
vacancies after a/location of all the candidates who can be allocated
to a service/post in accordance with their preferences. H
(emphasis supplied)
796 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 16.(i) After interview, the candidates will be arranged by the commission
in the order of merit as disclosed by the aggregate marks finally
awarded to each candidate in the Main Examination (written examination
as well as interview) and in that order so many candidates as are
found by the Commission to be qualified at the examination shall be
recommc::nded for appointment up to the number of unreserved
B vacancies decided to be filled on the result of the examination.

(ii) The candidates belonging to any of the Scheduled Castes or the
Scheduled Tribes or the other Backward Classes may to the extent of
the number of vacancies reserved for the Scheduled Castes and the
c 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, the
Scheduled Tribes and the other Backward ('lasses who have been
D recommended by the Commission without rl!sorting to the relaxed
standard referred to in this sub-rule. shall not b<! adjusted against
the vacancies reserved for the Scheduled Castes, the Scheduled
Tribes and the Uther Backward Classes.

(emphasis supplied)
E
Note appended to Rule 2 is crystal clear and unambiguous. It shows
that if a candidate is not allotted to any one of the services/posts for which
he/she has indicated preference, he/she 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 preferences.
F
Further, proviso to sub-Rule 2 of Rule 16 makes it further clear in
unambiguous terms that the candidates belonging to the Scheduled Castes,
the Scheduled Tribes or the Other Backward Classes who have been
recommended by the Commission without resorting to the relaxed standard
(i.e. on merits), referred to in this sub-Rule, shall not be adjusted against the
G vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the
Other back ward classes.

This position has been made crystal clear in Ritesh R. Sah (supra) as
referred to above that while a reserved category candidate entitled to admission
-
H on the basis of his merit, will have the option (preference) of taking admission
U.0.1. v. SA TY A PRAKASH [SEMA, .I.] 797
'
in the college where specified number of seats have been kept reserved for A
reserved category but while computing the percentage of reservation he will
be deemed to have been admitted as an open category candidate and not as
a reserved category candidate.

-
By way of illustration, a reserved category candidate, recommended by
the Commission without resorting to relaxed standard (i.e. on merit) did not B
get his own preference 'say !AS' in the merit/open category. For that, he may
opt a preference from the reserved category. But simply because he opted a
preference from the reserved category does not exhaust quota of OBC category
candidate selected under relaxed standard. Such preference opted by the OBC
candidate who has been recommended by the Commission without resorting
to the relaxed standard (i.e. on merit) shall not be adjusted against the
c
vacancies reserved for the Scheduled Castes, Scheduled Tribes and other
Backward Classes. This is the mandate of proviso to sub-Rule 2 of Rule 16.

In other words, while a reserved category candidate recommended by
the Commission without resorting to the relaxed standard will have the option D
of preference from the reserved category recommended by the Commission by
resorting to relaxed standard, but while computing the quota/percentage of
reservation he/she will be deemed to have been allotted seat as an open
category candidate (i.e. on merit) and not as a reserved category candidate
recommended by the Commission by resorting to relaxed standard.
E
If a candidate of Scheduled Caste, 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 and in such 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
F
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, G

- altogether 737 candidates against 737 posts. Against the OBC category 174
candidates were recommended against 174 posts. By opting a preference, the
quota reserved for OBC candidate does not exhaust. There are still vacancies
after allocation of all the candidates in 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 H
798 SUPREME COURT REPORTS 12006] 3 S.C.R.

A accordance with their preference. This is the mandate of the note appended
to Rule 2.
-
At the risk of repetition, the Commission recommended 737 candidates
against 737 posts. So far OBC category is concerned, 174 candidates were
recommended against 174 posts. We are totally at a loss as to what had
B happened to those remaining services/posts after allocation of services to all
the candidates in terms of their preferences. We say no more. ......
In the view that we have taken, we do not see any infinnity whatsoever
in the orders impugned passed by the High Court, which would warrant our
C interference. These appeals are devoid of merit and are dismissed with costs,
quantified at Rs. I0,000/- for each of the respondents. The appellant is
directed to allot jobs to the respondents within a period of one month from
today.
-
R.P. A..ppeal dismissed.

-