Sunday, May 18, 2008

Can OBC/SCs selected under Merit List be counted against quota?

In the Mandal II judgment, Justice Raveendran raised an interesting issue, but left it unanswered. It was whether the OBC candidates, if selected under the merit list, should be counted against OBC reservation, or under the general category. Tomorrow, (May 19) an interesting SLP is coming up as a fresh matter before the Vacation Bench of Justice C.K.Thakker and Lokeshwar Singh Panta in the matter of Union of India v. Ramesh Ram and Ors. (SLP [c] No.13571/13572/2008). This SLP is against the Madras High Court judgment, delivered on March 20. In the case before the Madras High Court, the challenge was to the amended Rule 16(2) of Civil Service Examination Rules. The facts of the case can be gathered from the judgment, being linked here.

In the SLP before the Supreme Court, the Union of India has stated:
“If the benefit of reservation is denied to an SC/ST/OBC candidate who qualifies on merit, then there can be a situation where a lower ranked OBC candidate gets allocated to a better service than a higher ranked OBC candidate only because the higher ranked candidate performed well enough to qualify in the general/unreserved category. Such a situation is anomalous.”

The Madras High Court judgment refers to Supreme Court’s judgment in Indra Sawhney (1992) case, as having stated as follows:

“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”.

In its judgment, the Madras High Court noted that the whole contention of the Government of India in support of the impugned Rule 16(2) is that it better serves the purpose of reservation for reserved category candidates to get a service of higher choice in the order of their preference, ignoring the basic principle upheld by Supreme Court and even admitted by the Government of India in para No. 4 of their affidavit, that the normal policy of the reservation stipulates that the reserved category candidates, do have right to compete for unreserved seats.

The Court said: “In the case on hand, admittedly, 31 OBC and 1 SC candidate have got selected on their own merit and they have not availed any relaxed standards, so as to bring them within the folder of 'reserved category'. Except for the fact that they hail from SC and OBC categories, they cannot be branded as 'reserved category' since their selection was on their own merit. If they are to be treated as 'reserved category' for any purpose, much less as mandated by the impugned Rule 16(2), it will put a stumbling block to the other 'reserved category', since their selection is definitely affected.

“ To explain, even though these 31 OBC and 1 SC candidate were selected on their own merit, instead of accommodating them within the 210 unreserved candidates, if they are accommodated in the 117 OBC and 66 SC candidates, definitely, the same number of candidates who could get selection under the relaxed standards, are being denied the postings, as in the case on hand. It is to be held that there cannot be any dispute with the proposition that if a candidate is entitled to be selected on the basis of his own merit, then, such selection should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4) of the Constitution.

“It is clear that though it is stated that the impugned Rule 16(2) was introduced with a laudable object of subserving the purpose of the SC/ST/OBC candidates included in the unreserved merit list, practically it is working detrimental to the interest of the SC/ST/OBC candidates, who are claiming appointments as per the notification dated 4.12.2004 issued by the UPSC under the reserved categories. Therefore, the said impugned Rule 16(2) is unreasonable and against the settled principles of law and the Rule of reservation enshrined under Article 16(4) of the Constitution and also depriving adequate representation of the SC/ST/OBC candidates in the 21 services notified in the Notification dated 4.12.2004, as contemplated under Article 335 of the Constitution. Therefore, the said Rule is liable to be struck down and accordingly it is struck down as violative of Articles 14, 16(4) and 335 of the Constitution."

It will be interesting to watch what view the Supreme Court takes on the matter.

Update: The Supreme Court stayed the High Court judgment, and posted the matter for further hearing after the vacation.

6 comments:

ravi srinivas said...

At what stage this issue of counting OBC candidates in general category with the reserved category arises?. Can an OBC candidate declare when (s)he applies that (s)he will not
seek reservation and is willing to be counted in the
unreserved/general category.
I read that Centre has defended
its policy as otherwise an analomous situation would
arise.If my memory is right
there has been a similar
case before CAT Madras.

ravi srinivas said...

How does the UPSC decide on the cut-off marks for SC/ST/OBC reservation and for the general
category and what has been the
differences among cut-off marks
in various exams.Does the UPSC
first decide to fill up the reserved posts with cut-off
marks and then raise them for general category.If the reserved
posts are filled first by assigning
the reservation % against each
category then the question the possibility of " lower ranked OBC candidate gets allocated to a better service than a higher ranked OBC candidate only because the higher ranked candidate performed well enough to qualify in the general/unreserved category" is likely to arise.
I think only by getting the statistics for various exams
conducted by UPSC for various
posts and the final allocation
we will get an idea about the
functioning of this system.
General principles may cut
both ways in some circumstances.
Finally what about the reserved
posts that are vacant and filling
backlogs in reserved posts.What are
the norms in such cases.

Chocolate Truffle said...

Also, in R.K. Sabhwarwal v. State of Punjab, it was held (quoting):

"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 filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve 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."

I think the argument here would be that when you are listing a particular class as backward, there is a presumption that all members of that class are unable to compete with other candidates. Now if some of the members of these classes get into the general category, for those members the presumption is rebutted. Following the logic of Indra Sawhney, this would further mean that they do not have really have any connecting factors or linkages with their class (the creamy layer argument). If we accept this argument (which is based upon the premise that an inability to compete with general candidates is one of the characteristic features of a backward class), then such candidates are no longer members of their erstwhile backward class, and the percentage of reservation would be unaffected.

ravi srinivas said...

I read what has appeared in the press and many doubts remain. I think one has to read the whole affidavit as well as the circulars to understand the
issue.How do state Public Service Commissions handle this. Do they also follow the UPSC guidelines?.

ss said...

I am too looking for an answer about weather OBC student can take admission in general category sits or not. And when does this issue considered.

1. Do they have to specify weather they want to take admission in OBC quota or General category when they fill the form.

We are preparing for P.G course at Jamanagar ayurved university. When filling the form, it has option to choose from OBC/SC/ST/General category, and they prepare seperate merit list for each of the category, In this case, it doesn't look like one can take admission in general category if they have opted for OBC when filling the form.

Now the real issue is - OBC quota has very small number of sits, and some of the specialties even does not have reserved sits at all. In this case I am confused about If I have good merit, will I be able to choose admission in general catrofy sits and specialities

Nitika Shrivastava said...

If I m a reserved catagory student and I filled form In general catagory in any competitive exams will it be mention that I.m from reserved class and opted as general ?