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Shri Mahesh Yadav aged about 28 years v. Union of India through Secretary Ministry of Finance Department of Revenue - Case No. 1206/2006 [2007] INCAT 1548 (23 October 2007)

Central Administrative Tribunal

Principal Bench

O.A.No.1206/2006

New Delhi, this the 23rd day of October 2007

Honble Shri Shanker Raju, Member (J)

Honble Smt. Chitra Chopra, Member (A)

1. Shri Mahesh Yadav

aged about 28 years

s/o Shri Kharak Singh

r/o Village & PO Rajokari

New Delhi-38

Service Group B

2. Shri Rajender Kumar Yadav

s/o Shri Duli Chand Yadav

r/o VPO Shamaspur

District Gurgaon, Haryana

..Applicants

(By Advocate: Shri S.K. Gupta)

Versus

1. Union of India through Secretary

Ministry of Finance

Department of Revenue

North Block, New Delhi

2. Chairman, Central Board of Excise & Customs

North Block, New Delhi

3. Chief Commissioner

Customs & Central Excise

MG Road, Shillong, Meghalaya

4. Shri Ashok Kumar Giri

Roll No.2426382

Presently working as Inspector, Delhi Zone

C/o Commissioner of Central Excise & Customs-I

CR Building, IP Estate, New Delhi-2

5. Secretary,

Staff Selection Commission

CGO Complex, Lodhi Road

New Delhi-3

..Respondents

(By Advocate: Shri R.V. Sinha)

O R D E R

Shri Shanker Raju:

Moot question in the present OA is whether a candidate belonging to reserved category when qualifies on his own merit could be treated to his disadvantage in comparison to the less meritorious reserved category candidate in the matter of allocation and posting?

2. Applicant No.1 belonging to an OBC category applied for the post of Inspector in Central Excise on the basis of an examination conducted by the Staff Selection Commission (SSC) on all India Basis. Applicant No.1 had qualified the examination on the standards of a general candidate. The respondents treating him to be a general category candidate allocated him to Shillong zone. This has been immediately represented to. Meanwhile applicant No.2 sought information under RTI Act, 2005, which has clarified that applicant No.1, though belonging to OBC category when qualified as general standard, has been allocated the Shillong zone whereas private respondent No.4, who was an OBC candidate and selected as such, has been retained in Delhi zone to the disadvantage of applicant No.1.

3. It is no more res integra that though Inspectors examination conducted by SSC was on all India basis but the allocation is zonal-wise and there being no all India transfer liability, one has to be transferred within the zone and inter-Commissionerate zone-wise transfer has already been done-away with. Admittedly, the criteria evolved by the respondents and guidelines for allocation of the candidates selected through graduate level examination of 2003 is as under:-

(i) The separate lists of General/OBC/SC and ST candidates are prepared according to their all India ranking.

(ii) The vacancies of ex-servicemen are in Delhi Zone only. Hence the ex-servicemen selected are allocated to Delhi Zone irrespective of their permanent home address and ranking.

(iii) In each Zone where vacancies exist, the female and physically handicapped candidates whose permanent address falls in that zone are given the first preference. The excess of the female candidatures and physically handicapped candidates, if any, in a Zone are adjusted to the other zone which is nearest to the Zone/Station in which their permanent address falls.

(iv) After adjusting the female candidates and the physically handicapped candidates, the persons whose permanent address falls in the Zone where vacancies exists, are adjusted in that zone in the order of their all India ranking. The excess of the candidates are adjusted to the other zone which is nearest to the zone/station in which their permanent home address falls according to their all India ranking subject to availability of vacancies.

4. The representation of applicant No.1 was turned down on the ground that since he has qualified the examination on general standards against a general vacancy, he has been allocated Shillong zone against general vacancies. The decision cited by the applicants has not been found to be relevant in the case. However, it is decided that for posting in Delhi, concerned has to request for deputation in accordance with existing instructions.

5. Learned counsel for applicants, Shri S.K. Gupta contends that being an allocation of the seniority list prepared zonal-wise, non-following the constitutional provisions and a protection guaranteed to the reserved category candidates, though applicant No.1 has been selected being OBC candidate, on his general merit, yet in the matter of posting and allocation, he cannot be put to a disadvantageous position, then the immediate less meritorious candidate of the reserved category, to which he belongs to. In such an event, as a legal fiction he is deemed to be placed above the less meritorious reserved category candidates for accord of consequential benefits on appointment to the service.

6. It is also stated that whereas the cadre allocation was made in 2005, immediately a representation preferred, the applicants have not in any manner waived-off their constitutional rights. Following cases have been relied upon by learned counsel for applicants to substantiate his claim:

Anurag Patel v. U.P. Public Service Commission & others, 2005 SCC (L&S) 563,

Union of India & another v. Satya Prakash & others, JT 2006 (4) SC 524; and

Ritesh R. Sah v. Dr. Y.L. Yamul & others, (1993) 3 SCC 253

7. On the other hand, Shri R.V. Sinha, learned counsel for respondents took a preliminary objection as to impleadment of applicant No.2, father-in-law of applicant No.1, on the ground that by relation a person cannot be impleaded as an aggrieved party.

8. It is also stated that no cause of action has arisen to the applicants by virtue of an information under RTI moved by the father-in-law of applicant No.1 and the OA is barred by limitation.

9. In this context, it is stated that once graduate level examination of 2003 was conducted despite cadre allocation applicant No.1 has been challenging the accepted position, whereby he has accepted his posting unconditionally.

10. Shri Sinha has introduced doctrine of waiver and acquiescence.

11. Learned counsel states that there is no right of cadre allocation and no instructions as to cadre allocation had been issued. In this regard, it is stated that all India examination conducted by SSC is for Central Excise & Customs. Reliance has been placed on a decision of the Apex Court in Union of India & others v. Rajiv Yadav, IAS & others[1994] INSC 393; , (1994) 6 SCC 38.

12. Learned counsel states that cadre is defined under FR 49 and for want of statutory rules for cadre allocation, the guidelines formulated by the respondents have been followed and as applicant No.1 was an OBC category candidate and qualified as general merit, he has been rightly treated as general category candidate and is now estopped from claiming any benefit of being treated as reserved category candidate.

13. Learned counsel states that there is no fundamental right of posting, which is the prerogative of Administration based on public interest. It is in this backdrop stated that the candidates have been requisitioned from SSC but posting is at the discretion of the department.

14. Shri Sinha states that as respondent No.4 has qualified as OBC, his case is distinguished and there cannot be any comparison.

15. Shri Sinha states that as per the merit in general category, applicant No.1 on his option when does not find posting in Delhi, as per turn he was posted to Shillong division. Policy of the respondents not being challenged a resort has been made to the decision of the Apex Court in Ekta Shakti Foundation v. Govt. of NCT of Delhi, AIR 2006 SC 2609 to contend that even on a wrong implementation of the policy, no interference is required.

16. Lastly, it is stated that the name of applicant No.1 has been figured in the list of OBCs qualified on general standards and there are many more, who despite being OBC when qualified on their own merit, non-challenge to their posting being more meritorious than applicant No.1, would cause an anomalous position. It is stated that things being settled cannot be unsettled.

17. We have carefully considered the rival contentions of the parties and perused the records.

18. It is no more res integra, as transpires from the reply filed by the respondents, that though the graduate level examination is conducted by the SSC on all India basis but after the selection of the candidates, their allocation to the different zones where inter-zonal transfer is not permissible, has to be made on the principles formulated as guidelines. Accordingly, separate list of General/OBC/SC/ST is to be prepared and adjustment had been made as per category-wise.

19. As regards preliminary objection, the impleadment of applicant No.2 in the OA, who is father-in-law of applicant No.1 and not being a government servant and also not being aggrieved, has been made on the ground that the impugned order has come forth in the process of an information through RTI of 2005 initiated by applicant No.2 in respect of applicant No.1. Accordingly, being a proforma party his impleadment would not suffer from the vice of mis-joinder of party and as no relief is being accorded to applicant No.2, a hyper technical plea would not be allowed to defeat the substantial question of law.

20. As regards limitation, it is not disputed that the cadre allocation was made in 2005 and immediately thereafter on joining, applicant No.1 has challenged the allocation vide his representation, which culminated into a communication of an order, which concerns applicant No.1 where his grievance has been responded to only on 5.4.2006. Hence, the issue is within limitation.

21. Moreover, applicant No.1 has resorted to constitutional principles settled by the Apex Court being a fundamental right of the reserved category candidates, which cannot be defeated by technicalities.

22. It is no more res integra that allocation of cadre in its wider connotation includes allocation of candidates pursuant to graduate level examination of 2003 and seniority list of the selected Inspectors has to be done inter-zonal wise before posting. A primary consequence of selection and appointment is allocation to a zone, which will be preceded by a posting within the zone. Accordingly, when the guidelines have been formulated for allocation, the concept of posting as set out by the respondents cannot be countenanced in law.

23. Moreover, in the matter of posting though it is the prerogative of the administrative authorities in public interest and administrative exigencies, yet the same cannot be either mala fide or contrary to the constitutional provisions.

24. Reservation in service to the reserved category candidates, which inter alia includes SC/ST/OBC, is guaranteed and upheld in various pronouncements of the Apex Court. The concept of a reserved category candidate being selected on merit in application of general standards has to be treated as a candidate selected against a general vacancy without considering him in the reserved quota but the reserved category being a constitutional right accorded from birth cannot be obliterated and extinguished merely because the merits on general standards have been acquired by the reserved category candidates. In such an event, he shall not be placed in a position, which is less disadvantageous to his counterparts of the reserved category implying thereof that being a candidate of the reserved category is less meritorious in the selection than a reserved category candidate selected on general merit. In the matter of allocation and consequences of selection, a precedence has to be given to such a general merit candidate over and above the reserved category candidate.

25. The aforesaid issue had its origin in Ritesh R. Sahs case (supra) where in the matter of admission to the medical college, the following observations have been made by the Apex Court:-

12. The aforesaid provision indicates that candidates who could not secure admission against 30% State level seats will then be called as per his merit position, and he will be told the colleges where the seats are available. He will then be called upon to give choice in writing for his allotment. The candidates in the Regional Merit List, which include both open and backward class will be called for interview and those belonging to reserved categories of backward class will be called subsequently for selection against the seats reserved exclusively for the backward class applicants. It is this provision which is being objected to by the petitioner belonging to a reserved category on the ground that it affects, and frustrates the very purpose of the Constitutional mandate enshrined in Article 15(4) of the Constitution of India. A candidate who is otherwise entitled to be admitted to the MBBS course on the basis of his open merit though belonging to a reserved category it is adjusted against a seat meant for reserved category then the purpose of reservation will not be achieved. We find sufficient force in the aforesaid contention raised by Dr. Dhawan, the learned senior counsel for the petitioner. But Mr. Nageshwar Rao, learned counsel appearing for respondent Nos. 3 to 36, who also belong to the reserved category and have given their choice for being considered against the seats meant for reserved category argued that if these persons who otherwise have qualified to be admitted under the open category would not be allowed to exercise their option for being admitted against the reserved seats then will be forced to take admission in either private colleges or some colleges of the State even though they are found to be more meritorious than others, like the petitioner who even could not qualify to be admitted to any of the colleges. In order to appreciate this contention it would be necessary for us to find out as to how the selection is made. In a college where there are 100 seats, 15 seats remained reserved for the candidates who come through All India Competitive Test to be allotted by the Govt. of India, out of remaining 85 seats 50% are kept reserved for different reserved categories and 50% remained for open market in accordance with merit. From out of open market seats, say, in the aforesaid illustration 30% are distributed from the State level candidates and 70% in the Regional level. It is while considering the candidates at Regional level, option is asked for from the candidates individually of their choice and then allotment is made. Therefore, at that stage if a candidate belonging to the reserved category is considered by virtue of his merit and is admitted, then it is just possible he may not be admitted to any Government colleges and would be admitted into a private college whereas as against the 50% seats reserved for reserved category, persons down below the list belonging to the reserved category, will be admitted and undoubtedly this will cause undue hardship to the meritorious candidates amongst the reserved category and will be a premium for the less meritorious candidates amongst the reserved category.

13. There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission 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).

14. In a case Indra Sawhney v. Union of India (1992) 6 Suppl (3) SCC 210 (217) : (1992 AIR SCW 3682), commonly known as Mandal's case, this Court in paragraph 811 held thus:-

"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 filed 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 R.K. Sabharwal v. State of Punjab, [1995] INSC 129; (1995) 2 SCC 745: (1995 AIR SCW 1371), the Constitution Bench of this Court considered the question of appointment and promotion and roster points vis a vis reservation and held thus(at p. 1376 of AIR):

"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 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 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 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 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/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 reservation 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."

16. In Union of India v. Viral Singh Chauhan, [1995] INSC 545; (1995) 6 SCC 684 at 705 : (1995 AIR SCW 4309), 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.

17. In Ajay Kumar Singh v. State of Bihar, [1994] INSC 178; (1994) 4 SCC 401 : (1994 AIR SCW 2515), a three Judge Bench considered the same question for admission in post-graduate medical course. It 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 eligible 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 extremely acute, he may have to seek the benefit of reservation. Therefore, the assumption that a student seeking benefit of reservation at the stage of admission to post graduate medical course has already enjoyed the benefit of reservation 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 if found to be unsustainable under the relevant article, the Court cannot interfere. With regard to the observations in Indra Sawhney case in para 834 and 839 (of 1992 Supp (3) SCC 210 : 1992 AIR SCW 3682), relied upon to contend that the reservation for admission at the post-graduate level is unconstitutional, it was clarified in para 8 that "the Court 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 permissible". 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 against seats 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 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 different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they will 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 to 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 (W.P. No. 2469/90) decided on 16th September, 1991 (reported in AIR 1992 Bom 233) held that selection of candidates for admission to post-graduate 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 admitted on merit basis. The said statement is consistent with Article 15(4). Therefore, the candidate belonging to backward classes but selected as general candidates for admission to graduate or post-graduate medical course are entitled to the concession 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 admission already made but we do commend that while deciding and publishing the Rules for admission in the next academic session, directions given in this judgment should be borne 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 reserved category only against seats meant for reserved category even though they were entitled to be admitted on the basis of their merit, the petitioner who could have been otherwise admitted, has to be debarred from taking admission. Since the petitioner is a single applicant before us, we direct that the petitioner be admitted to anyone of the colleges where he can be so admitted to the MBBS course where seat is still available and if no seat is available then he may be admitted by increasing one seat in anyone of the colleges. It may be made clear that if the petitioner is desirous of being admitted to any of the Medical colleges in pursuance of this Court's order then he should approach the Designated Authority within two weeks from today and the Designated Authority will then take appropriate action within two weeks thereafter. The designated authority will decide the college to which the petitioner will be admitted.

26. In Anurag Patels case (supra), on issue of general open candidates belonging to reserved category and the consequence of their being posted for allocation, the Apex Court held as under:-

5. In the matter of admission to the Medi-cal College, the same difficulty was experienced and this Court held in Ritesh R. Sah v. Dr. Y.L. Yamul and others[1996] INSC 272; , (1996) 3 SCC 253, in paragraph 17 of the judgment at page 261 as follows :

".. In view of the legal position enunci-ated 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 cat-egory cannot be considered to be admitted against seats 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 than the other less meritorious re-served 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 different colleges which have been kept reserved for reserved category and thereafter the eases 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 an open category candidate and not as a re-served category candidate."

The same question was considered by this Court in State of Bihar and others v. M. Neethi Chandra & others, (1996) 6 SCC 36, wherein it was held in paragraph 13 as fol-lows:

"............However, to the extent the meri-torious among them are denied the choice of college and subject which they could se-cure under the rule of reservation, the cir-cular cannot be sustained. The circular, therefore, can be given effect only if the re-served category candidate qualifying on merit with general candidates consents to being considered as a general candidates on merit-cum-choice basis for allotment of college/institution and subject."

In the instant case, as noticed earlier, out of 8 petitioners in Writ Petition No. 22753/ 93, two of them who had secured ranks 13 and 14 in the merit list, were appointed as Sales Tax Officer-II, whereas the persons who secured rank Nos. 38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors and the Division Bench of the High Court held that it is a clear injustice to the persons who are more meritorious and directed that a list of all selected Backward Class candidates shall be prepared sepa-rately including those candidates selected in the general category and their appoint-ments to the posts shall be made strictly in accordance with merit as per the select list and preference of a person higher in the select list will be seen firs, t and appointment given accordingly, while preference of a per-son lower in the list will be seen only later. We do not think any error or illegality in the direction issued by the Division Bench of the High Court.

6. Mr. R.N. Trivedi, learned Senior Coun-sel appearing for the Commission submit-ted that in case any re-arrangement is made, the same persons who had already been appointed are likely to lose their posts. Go-ing by the counter-statement filed by the State in the Writ Petition No. 22753/93 it appears that altogether 358 candidates were appointed and 47 candidates belonging to Backward Classes were filled up by posts earmarked for Backward Classes. Amongst the 358 candidates those who secured higher marks than the cut-off mark for the general category also must have got selec-tion in the general category even though they belong to the Backward Classes. If these candidates who got selection in the general category are allowed to exercise preference and then appointed accordingly the candi-dates who were appointed in the reserved categories had to be pushed down in their posts and the vacancies thus left by the general category candidates belonging to Backward Classes could be filled up by the persons who are really appointed against the quota reserved for Backward Classes. There will not be any change in the total number of posts filled up either by the general cat-egory candidates or by the reserved category candidates.

7. Learned Senior Counsel for the Com-mission further pointed out that all these officers have been working against the posts since the last 11 years and that many of these affected parties were not made par-ties to the writ petition and if any re-alloca-tion of posts is made at this distance of time it will cause injustice to the affected par-ties. It is also pointed out by the respondent's counsel that in the writ petition filed by one Amrendra Pratap Singh i.e. Writ Petition No. 32346 before the Allahabad High Court, an interim order was passed in favour of the petitioner therein and the Division Bench directed that the appointment would be sub-ject to the result of the writ petition and this order continued for some period and all the candidates were informed that their appoint-ments would be subject to the result of the writ petition. Although that writ petition under review was dismissed, the candidates who were appointed were aware of the pro-ceedings pending before the High Court. By the impugned order the High Court only di-rected re-allocation of the posts according to the merit prepared in the select list. The decision rendered in Writ Petition No. 46029 of 1993, dated 15th April, 1998 was followed in the decision in Writ Petition No. 22753 of 1993.

26. In Satya Prakashs case (supra) in the matter of allocation to service, following observations have been made by the Apex Court:

8. The sole question that revolves around for determination is, as to whether those OBC candidates, who were selected on 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.

9. 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 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; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

10. In the case of R.K. Sabharwal v. State of Punjab [1995] INSC 129; (1995) 2 SCC 745, a Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-`-vis reservation and held at SCC p. 750, para 4 as under:

"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 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 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 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 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/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 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."

11. In Union of India v. Virpal Singh Chauhan [1995] INSC 545; (1995) 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 (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.

12. This Court in Ritesh R. Sah v. Dr. Y.L. Yamul & Ors. [1996] INSC 272; (1996) 3 SCC 253 after considering the various decisions of this Court, as referred to above, has come to the conclusion at SCC p.261-262 as under:

"In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is en-titled 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 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 different colleges which have been kept reserved for reserved 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 an open category candidate and not as a reserved category candidate." (emphasis supplied)

13. It will be noticed that the decision in Ritesh 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).

14. 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:

"2. A candidate shall be required to indicate in his/her application form 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.

A candidate who wishes to be considered for IAS/IPS shall be required to indicate in his/her application if he/she would like to be considered for allotment to the State to which he/she belongs in case he/she is appointed to the IAS/IPS.

NOTE: - The candidate is advised to be very careful while indicating preferences for various services/posts. In this 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 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 allocation of all the candidates who can be allocated to a service/post in accordance with their preferences. (emphasis supplied)

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 recommended for appointment up to the number of unreserved 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 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 Classes who have been recommended by the Commission without resorting to the relaxed standard referred to in this sub-rule, shall not be adjusted against the vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. (emphasis supplied)

15. 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.

16. 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 vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other backward classes.

17. 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 on the basis of his merit, will have the option (preference) of taking admission in the college where 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.

18. By way of illustration, a reserved category candidate, recommended by the Commission without resorting to relaxed standard (i.e. on merit) did not get his own preference 'say IAS' 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 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.

19. In other words, 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 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.

20. 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 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.

27. What discerns from cumulative reading of the ratio decidendi laid down by the Apex Court that a reserved category candidate when qualifies on his own merit though to be treated as a general category candidate, yet cannot be put to a disadvantageous position comparing to less meritorious reserved category candidate and would seek precedence in the matter of allocation over and above the less meritorious reserved category candidate.

28. The above constitutional principle laid down in a Constitution Bench of Apex Court in R.K. Sabharwal v. State of Punjab, [1995] INSC 129; (1995) 2 SCC 745 when not followed by the respondents in giving effect to guidelines, the above guidelines even if formulated as a result of policy decision are amenable to judicial review.

29. It is trite that in the act of administrative authorities what is to be interfered is the decision-making process. However, any decision of the administrative authorities, which suffers from the vice of legal mala fide has been well explained by the Apex Court in P. Mohanan Pillai v. State of Kerala & others, 2007 SCC (L&S) 542 wherein a malice in law is defined when in the exercise of power an unauthorized purpose has been used. When a thing is to be done in a particular manner, non-following the methodology and the manner would vitiate and there would be a deficiency in the decision-making process. If the constitutional principle has been laid down by the Apex Court, it is not only binding as a precedent under Article 141 of the Constitution upon all the subordinate Courts but also is binding on the Executive and administrative authorities even performing the quasi-judicial functions as a public functionary. Rule of law has to prevail.

30. In the decision cited by Shri Sinha, learned counsel in Ekta Shakti Foundations case (supra), what has been laid down is that a policy decision must be left to the Government and in the matter of exercise of discretion unless an infringement of fundamental right is reflected, propriety of the decision of the Government should not be interfered on a premise that second view is possible. Fundamental right guaranteed under Articles 15 & 16 of the Constitution to the reserved category candidates is not only their right to be considered for promotion in the Government but also when they qualify on their general merit should not be put to a disadvantageous position. Accordingly, this fundamental right to be accorded but the consequences when crystallized by the Constitution Bench in R.K. Sabharwals case (supra) non-consideration of this fundamental right by the respondents in view of their policy decision and the guidelines formulated whereby applicant No.1 was allocated to Shillong zone, is contrary to law.

31. Moreover, in the matter of exercise of discretion any non-judicious exercise by an administrative authority is illegal as per the decision of Apex Court in Union of India v. Kuldeep Singh, (2004) 2 SCC 590.

32. The Apex Court in M/s. Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal & others, 2007 (11) SCALE 374 ruled that an act of administrative authority when the action is with an oblique motive and on extraneous or irrelevant considerations the aforesaid exercise cannot be treated in accordance with law. The discerned principle of not putting a reserved category candidate in a disadvantageous position on his qualification on general merit in comparison to the reserved category candidate when not followed, the action of the respondents is not only unconstitutional but also in oblivion of the decision of the Apex Court. It is trite that when a field is occupied by a judicial dicta any administrative instruction issued contrary would not be per se legal and cannot be allowed to infiltrate, as held by Apex Court in Dr. A.K. Doshi v. Union of India & others, (2001) 4 SCC 43.

33. As regards plea of estoppel and waiver raised by the learned counsel for respondents, a distinction between estoppel and waiver has been well explained by the Apex Court in Krishna Bahadur v. M/s. Purna Theatre & others, 2005 (1) SLJ SC 209 with the following observations:-

9. The principle of waiver although is akin to the principle of estoppel; the differ-ence between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.

10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public in-terest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct

34. Applying the aforesaid, applicant No.1 on allocation has immediately sought for his allocation to Delhi zone by way of a representation, as such it cannot be concluded in its logic and rationale that he in any manner waived-off his right by his conduct. Moreover, High Court of Allahabad in Mani Kant Gupta & others v. State of Uttar Pradesh, 2004 (1) ATJ 349 ruled that fundamental right cannot be waived with the following observations:

5. In S.I. Roop Lal v. Lt. Governor, AIR 2000 SC 594 : (2000 Lab IC 370) the Supreme Court has held when the employee of one department goes on deputation to another department and he is subsequently absorbed in that department he has to be given the benefit of the service in the parent department for the purpose of seniority etc. The Supreme Court has in that decision in fact gone to the extent of saying that if there is any executive order stating that the benefit of past service in parent department will not be given to a person who goes on deputation (and is subsequently absorbed) that executive order will be violative of Arts. 14 and 16 of the Constitution. From the decision it follows that if benefit of past service is not given it will violate Arts. 14 and 16.

6. In Basheshar Nath v. C.I.T., [1958] INSC 117; AIR 1959 SC 149 it was held by the Supreme Court that the fundamental right cannot be waived.

7. In Olga Tellis v. Bombay Municipal Corporation, [1985] INSC 155; AIR 1986 SC 180 it was held by the Supreme Court that although an undertaking was given by the appellants before the High Court on behalf of the hut and pavement dwellers that they did not claim any fundamental right to put huts on pavements or public roads and that they will not obstruct the demolition of the huts after a certain date, they could not be estopped from contending before the Supreme Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood under Art.21 of the Constitution. From this decision also it follows that a fundamental right cannot be waived, and there can be no estoppel.

8. In Mahavir Oil Mills v. State of J. & K., 1996 (10) JT SC 837 it was held that there can be no question of any acquiescence in matters affecting constitutional rights.

9. Hence in view of the above decisions, we are of the opinion that the petitioners cannot be denied the right for claiming the benefit of their past services in U.P. Jal Nigam even though they may have accepted the conditions imposed by the State Govt. for absorption in service of the G.D.A.

In the light of above, the objection raised by the respondents stands overruled.

35. Insofar as other OBCs, who have been placed in the list on being qualified under general standards and their rights are concerned, having failed to approach the Tribunal for redressal of grievance, we are concerned only with the persons, who had come being aggrieved under Section 19 of Administrative Tribunals Act, 1985. Those who have not come before us, law shall take its own course.

36. Being satisfied in law that the respondents having failed to consider the constitutional mandate of not putting the reserved category candidates on general merit in disadvantageous position as compared to reserved category candidates in the matter of allocation, the allocation of applicant No.1 is dehors the above principle. The impugned order where judgment has been found to be irrelevant is misconceived. Applicant No.1 if placed above the OBC candidates in the matter of allocation certainly there would have been some change in the allocation in respect of the choice of places made. As there has been a deficiency in the decision-making process by the respondents in allocation, their discretion exercise cannot be treated as an exercise in accordance with law or judicious one.

37. In the result, for the foregoing reasons, OA is allowed. Impugned order is set aside. Respondents are directed to consider the reallocation of applicant No.1 applying the aforesaid principle, as stated by us and ruled by the Apex Court (supra). In such an event, applicant No.1 shall be entitled to all consequential benefits. The aforesaid exercise shall be done within a period of two months from the date of receipt of a copy of this order. No costs.

( Chitra Chopra ) ( Shanker Raju )

Member (A) Member (J)

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