Decided on May 17,2012

Anjali Noliyal Appellant


BARIN GHOASH,.J. - (1.) THESE writ petitions raised common questions of law and facts and, accordingly, are being decided together.
(2.) IN the advertisement published, it was indicated that only one post, thus, advertised is available for scheduled caste candidates. Inasmuch as, the post was one and horizontal reservation for women belonging to scheduled castes was 30% of the posts available, no post was available for a person belonging to that category. Since a number of posts were available for open merit candidates, a few posts amongst them were reserved for women on horizontal basis in the said category.
(3.) IN these writ petitions, some of the petitioners are members of Scheduled Caste community. Each one of them responded to the said advertisement. While responding to the said advertisement, those petitioners held out that they belong to scheduled caste community. Commission invited all the petitioners to appear at a preliminary examination. After the preliminary examination was over, it was declared that each of the petitioners are unfit. Subsequent thereto, petitioners came to learn that women candidates belonging to open merit category, even having had secured 91.25 marks in the preliminary examination, have been asked to appear in the main examination, whereas each of the petitioners, who are also women, secured more marks than 91.25 marks in the preliminary examination, but they have not been called to appear in the main examination. This knowledge has resulted in filing of all these writ petitions. In one of the writ petitions, namely, Writ Petition (S/B) No. 25 of 2012, a counter affidavit has been filed by the Commission. The learned counsel for the Commission has requested us to treat the said counter affidavit as the counter affidavit filed in all other writ petitions too. We have accepted the request. From the counter affidavit, so filed, it appears that the assertions of the petitioners that they secured more than 91.25 marks in the preliminary examination is not in dispute and at the same time certain women candidates belonging to open merit category, who secured 91.25 marks in the preliminary examination, have been invited to sit in the main examination. According to the Commission, since no horizontal reservation was available for scheduled caste candidates, in the circumstances as above, no one from that category was considered. Men and women belonging to scheduled caste community were, accordingly, considered together and on the ratio 1:10 petitioners did not come within the zone of consideration having had secured such marks, which they secured in the preliminary examination, for being considered for the only reserved post available for a scheduled caste candidate. It was contended that people belonging to that class can only be considered in horizontal reservation available to that class. It was contended that since the petitioners held out to be belonging to scheduled caste community, they were considered only as members of the said community and, accordingly, they were not considered in horizontal reservation available for women in the general category. The said contention/submission makes it abundantly clear that the Commission failed to discharge its obligation of preparing a combined merit list for the purpose of picking up those belonging to open merit category, which means every respondee and every person, who had been invited to appear in the preliminary examination, as, in law, open category includes those who have reservation in their favour as also those who do not have any reservation in their favour. The faux pas was created, thus, by failing to discharge legal and constitutional obligation of preparing one single merit list to first accommodate the open category candidates. As a result, though, each of the petitioners belong first to open category and then to reserved category, they lost their right to be considered as a candidate for open category despite securing much more than those who have been given the benefit under the said category. The law on the subject is absolutely clear. It is obligatory on the part of the Commission to prepare a combined merit list for supplying the quota available to merit. If in that quota, by reason of merit, a person, who also belongs to reserved category, fits, he is fitted in the open merit category and not in the reserved category to which he belongs. While supplying the open category quota, if people belonging to reserved category, comes within by dint of their merit, it is obligatory on the part of the Commission to treat those people in the open merit category, and to ensure that the number of berth as are available on the basis of horizontal quota have also been supplied. If it is found that less than that has been supplied then appropriate adjustment is required to be made by taking off from the list the person who secured lesser and to bring on the list person who has secured the next better and belonging to horizontal category. After this exercise is over, then only the Commission can proceed to consider again on the basis of merit the quota available to reserved category and, while doing so, to adopt the same procedure in relation to horizontal quota. Instead of discharging that obligation, the Commission prepared two separate lists, one for the reserved category candidates and the other for open merit category candidates and, while dosing so, totally forgot that the reserved category candidates, before being entitled to be part of such category, belong to open merit category being citizens of the country.;

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