K.G.BALAKRISHNAN, CJI. - (1.) LEAVE granted.
(2.) THE constitutional validity of sub-rules (2) to (5) of Rule 16 of the Civil Service Examination Rules (hereinafter 'Rules') relating to civil services examinations held by the Union Public Service Commission in the years 2005 to 2007 is the subject-matter of these appeals by special leave. A three Judge Bench of this Court, by order dated 14.5.2009 has referred these cases to the Constitution Bench as it raises an important legal question as to whether candidates belonging to reserved category, who get recommended against general/unreserved vacancies on account of their merit (without the benefit of any relaxation/concession), can opt for a higher choice of service earmarked for Reserved Category and thereby migrate to reservation category. Selection to three All India Services (Indian Administrative Service, Indian Foreign Service and Indian Police Service) and fifteen Group 'A' Services and three Group 'B' officers in various Government departments are made by the Union Public Service Commission (hereinafter 'UPSC'), by conducting Civil Service Examinations periodically. Civil Service Examinations are held as per the Civil Service Examinations Rules notified in regard to each examination. The Rules for the Civil Service Examination which was to be held in 2005 by the UPSC were published by the Department of Personnel and Training (hereinafter 'DOP&T') vide Notification dated 4.12.2004. To appreciate the issue, it will be necessary to refer to the relevant rules. The Preamble to the Rules enumerates 21 services. Rule 1 provides that the examination will be conducted by the UPSC in the manner prescribed in Appendix-I to the Rules. 4.1) Rule 2 of the Rules relates to preferences and is extracted below: "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 Service 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 19 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 services/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 services/posts in accordance with their preferences." 4.2) Rule 3 relates to number of vacancies and provision for reservation and it reads as follows: "3. The number of vacancies to be filled on the result of the examination will be specified in the Notice issued by the Commission. Reservation will be made for candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes and physically disabled categories in respect of vacancies as may be fixed by the Government." 4.3) Rule 15 provides for three examinations namely preliminary examination, main written examination and interview test as follows: "15. Candidates who obtained such minimum qualifying marks in the Preliminary Examination as may be fixed by the Commission at their discretion shall be admitted to the Main Examination; and candidates who obtain such minimum qualifying marks in the Main Examination (written) as may be fixed by the Commission at their discretion shall be summoned by them for an interview for personality test: Provided that candidates belonging to the Scheduled Castes or Scheduled Tribes or Other Backward Classes may be summoned for an interview for a personality test by the Commission by applying relaxed standards in the Preliminary Examination as well as Main Examination (Written) if the Commission is of the opinion that sufficient number of candidates from these communities are not likely to be summoned for interview for a personality test on the basis of the general standard in order to fill up vacancies reserved for them." 4.4) Rule 16 lays down the manner of selection, preparation of merit list and selection of candidates. The said rule is extracted below: "16.(1) 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. Thereafter, the Commission shall, for the purpose of recommending candidates against unreserved vacancies, fix a qualifying mark (hereinafter referred to as general qualifying standard) with reference to the number of unreserved vacancies to be filled up on the basis of the Main Examination. For the purpose of recommending Reserved Category candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes against reserved vacancies, the Commission may relax the general qualifying standard with reference to number of reserved vacancies to be filled up in each of these categories on the basis of the Main Examination: Provided that the candidates belonging to the Scheduled Castes, Scheduled Tribes and the Other Backward Classes who have not availed themselves of any of the concessions or relaxations in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission shall not be recommended against the vacancies reserved for Scheduled Castes, Scheduled Tribes and the Other Backward Classes. (2) While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes or Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Govt. if by this process they get a service of higher choice in the order of their preference. (3) The Commission may further lower the qualifying standards to take care of any shortfall of candidates for appointment against unreserved vacancies and any surplus of candidates against reserved vacancies arising out of the provisions of this rule, the Commission may make the recommendations in the manner prescribed in sub-rules (4) and (5). (4) While recommending the candidates, the Commission shall, in the first instance, take into account the total number of vacancies in all categories. This total number of recommended candidates shall be reduced by the number of candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes who acquire the merit at or above the fixed general qualifying standard without availing themselves of any concession or relaxation in the eligibility or selection criteria in terms of the proviso to sub-rule (1). Along with this list of recommended candidates, the Commission shall also declare a consolidated reserve list of candidates which will include candidates from general and reserved categories ranking in order of merit below the last recommended candidate under each category. The number of candidates in each of these categories will be equal to the number of Reserved Category candidates who were included in the first list without availing of any relaxation or concession in eligibility or selection criteria as per proviso to sub-rule (1). Amongst the reserved categories, the number of candidates from each of the Scheduled Caste, the Scheduled Tribe and Other Backward Class categories in the reserve list will be equal to the respective number of vacancies reduced initially in each category. (5) The candidates recommended in terms of the provisions of sub-rule (4), shall be allocated by the Government to the services and where certain vacancies still remain to be filled up, the Government may forward a requisition to the Commission requiring it to recommend, in order of merit, from the reserve list, the same number of candidates as requisitioned for the purpose of filling up the unfilled vacancies in each category." 4.5) Rule 19 provides that due consideration will be given at the time of making allocation on the results of the examination to the preferences expressed by a candidate for various services at the time of his application and the appointment to various services will also be governed by the Rules/Regulations in force, as applicable to the respective Services at the time of appointment.
(3.) THE total vacancies notified by the participating services for the Civil Service Examination, 2005 were 457 made up of General Category : 242, OBC category : 117, Scheduled Castes : 166 and Scheduled Tribes : 32. As per Rule 16(1) and (4), UPSC recommended 425 candidates in the first phase made up of the following: General -- 210, OBC -- 117 (including 31 merit candidates); Scheduled Castes -- 66 (including 1 merit candidate) and Scheduled Tribes -- 32. A consolidated Reserve list (wait-list) was also prepared consisting of 64 candidates. THE DOPandT after allocation of the candidates from the first list, made a requisition for recommendation of candidates through the operation of the reserve list. 26 Meritorious OBC candidates and one Meritorious Scheduled Caste candidate recommended against unreserved vacancies, opted for reserved vacancies as by that process, they got a service of higher choice in the order of preference. If the said 27 meritorious reserved category candidates had been considered only for service allocation against unreserved vacancies in competition with the General Category candidates, they would have got a service of lower choice. Rule 16(2) enabled the meritorious candidate of any of the reservation categories to get a service of higher preference so that he may not be placed at a disadvantaged position vis a vis other candidates of his category. The DOPandT could therefore adjust only 5 out of the 31 Meritorious Category OBC candidates through their merit-cum-service preference option as General Candidates. As a result, the UPSC recommended under Rule 16(5) of the Rules, 27 General Category candidates and 5 OBC candidates from the consolidated Reserve List.;