This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article analyses the judgment of the Supreme Court in the matter of reservation in the Tamil Nadu Government Services in relation to the scope of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016
In the case of the State Of Tamil Nadu v. K.Shobana etc. (2021), the Supreme Court reiterated that the students under the reserved category who score more marks than the cut-off marks of the general category and attain merit without availing the advantage of the benefit will get appointed and adjusted against the general category based on their merit and not by virtue of being under the reserved category.
Facts of the case
- The dispute relates to the appointment for the post of Post Graduate Assistants in Chemistry departments for the year 2018-2019 in Tamil Nadu, The issues prevail in the working out of the reservation system in the limited employment opportunities that are available.
- A notification dated 12.06.2019 was issued by the Teacher’s Recruitment Board (appellant no. 3) for inviting online applications from eligible candidates for direct recruitment to the post of Post Graduate Assistants and Physical Education Directors, Grade-I in school education and other departments for the year 2018-2019 in Tamil Nadu. There were issues in filling up vacancies for the post of Post Graduate Assistants in Chemistry wherein the respondents were applicants.
- The notification had notified 356 posts for Chemistry with a vacancy of 117 seats for Most Backward Class (MBC) and Denotified Community (DNC) candidates. Out of the 117 vacancies, there were 74 backlog vacancies and 43 current vacancies.
- The respondents in the case had applied for the post and appeared for the written examination on 28.09.2019, but their names were not mentioned in the provisional selection list which was published by appellant no. 3 on 20.11.2019.
- The respondents after scrutinizing pointed out that the meritorious candidates under the MBC quota who would have got selected even without the reservation were appointed in the quota for backlog vacancies under the categories of MBC/DNC without being considered for the general vacancies. This prevented the respondents from being appointed. They argued that such meritorious candidates ought to have been appointed under the general category, leaving the backlog of vacancies to be filled up by the reserved category candidates. Thus they filed a writ petition before the High Court of Madras seeking quashing of the provisional selection list and for appointment of these respondents.
It revolves around the interpretation of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (hereinafter referred to as “the Act”). The last sentence of the third proviso to Section 27(f) provides “the selection of appointment for the next direct recruitment to be made “first for backlog vacancies and then the normal rotation shall be followed”. Thus the Court deals with the interpretation of the expression “first” vis-à-vis the backlog of vacancies.
Relevant legal provisions
Section 27(f) under Reservation for Appointments, reads as:
If the eligible qualified candidates from the Backward Classes, Backward Class Muslims including the MBC and DNC are not available for selection for appointment by recruitment by transfer/ promotion in the turns allotted to them, it will lapse and the selection for the vacancy will be made by the next turn in the order of rotation.
The proviso to the clause states that:
For selections taking place from 1.04.1989 by direct recruitment, there shall be a ban on the de-reservation of vacancies reserved for the candidates belonging to any of the Scheduled Castes(SC) and Scheduled Tribes(ST), MBC and DNC to be appointed by direct recruitment. However, this ban will not be applicable to the vacancies reserved for the Backward Classes (other than MBC and DNC), Backward Class Muslims and therefore, if qualified and suitable candidates belonging to these classes are not available for appointment, then their turn will lapse and vacancy will be filed by the next turn in order of rotation.
If a sufficient number of candidates from the SC, ST, MBC and DNC are not available for selection for the reserved vacancies in the first attempt then a second attempt shall be made in the same year or as early as possible before the next direct recruitment for the same communities. If the still required number of candidates are not available then those unfilled vacancies shall remain unfilled until the next recruitment year treating them as backlog vacancies.
In the subsequent year, when direct recruitment is made for the vacancies of that year under the current vacancies, the “backlog” vacancies shall also be announced for direct recruitment, keeping the vacancies of the particular recruitment year, as two distinct groups, the current year vacancies and the “backlog” vacancies as illustrated in Schedule-IX. The backlog vacancy shall be filled first followed by a normal rotation.
Contentions by the appellant
The appellants argue that:
- The clear provisions and the expression used in the section must be given effect to its natural meaning, which in turn, would imply that on the basis of merit the backlog of vacancies had to be first filled in.
- After those vacancies were filled, the appointment had to be made on merit in the general turn to be recruited. Thus, the candidates who qualified on merit would be adjusted against those seats and the remaining ones would be adjusted against the reserved seats.
- The vested right can only be for 69% reservation. There was no reduction in reservation below the statutory limit, and that coming in the open category did not mean that they are not entitled to benefit received to the reserved category.
- They relied on Hardeep Singh v. State of Punjab & Ors. (2014) with regard to the interpretation wherein it held that it was a settled principle of law that if an interpretation leads to a conclusion that the word used by the legislature is redundant, it should be avoided because the presumption is that legislature has deliberately and consciously used the word for the purpose of the Act. The legal maxim “a verbis legis non est recedendum” which means, “from the words of the law, there must be no departure” has to be considered. There can be no assumption that a mistake has been committed by the legislature when the language of the statute was plain and ambiguous.
- The counsel for intervenors too submitted their contention in addition to the appellant’s submission. It was made in the context of Article 16(4B) of the Constitution of India for the benefit of the other reserved categories. Thus, if respondents’ plea was accepted then persons less meritorious in that category would be entitled to seniority.
Contentions by the respondents
- The correct methodology was that first, the list had to be drawn up on the basis of merit, and then only the issue of application of reservation would arise.
- That first the meritorious candidates will take their place in the general merit list with no reservation, then reservation would apply whereby the backlog vacancies would be filled first followed by the current year vacancies.
- That Section 27 of the Act has nothing to do with the selection based on merit, and only applies to the mode of reservation post that stage. For the two distinct groups, two lists are required to be made as provided for the reserved vacancies, which would be first, a backlog list and then, secondly, the current list. This has always been the consistent and current practice and disputes only arose in Chemistry that would not make any difference.
- They referred to the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission and Ors (2007), to support the principle of how the persons in the merit list, irrespective of their community, would not affect the reservation as they would be adjusted against the general candidates.
- They also referred to a judgment specifically referring to Tamil Nadu in K.R. Shanthi v. Secretary to Government, Education Department, Chennai & Anr (20.12). Herein it was held that candidates selected on merit under open quota should not be adjusted against reserved vacancy and the inter se seniority of candidates selected and appointed in that selection should be only on merit and not on the basis of roster points. The judgment also set forth the method of selection for the vacancies in different categories.
- Furthermore, they referred to the recent judgment of the Supreme Court in Saurav Yadav and Ors. vs. State of Uttar Pradesh & Ors. (2020), which set forth the steps for implementation of the list.
The Court observed that the section reflects the idea that vacancies for reserved categories will not lapse in case there is an inadequate number of candidates. Rather, these vacancies will be carried forward for one year instead of being filled with candidates from the general category. Later, if in the subsequent year, it is still not filled then those vacancies can be passed to other categories.
The Court said that there has been a wrong reading of the provisions of Section 27 of the Act. Section 27(f) merely states that if the needed number of candidates from the communities which fall under reservation is not available, then, the vacancies which could not be filled in the current year should be treated as backlog vacancies. In the next recruitment, the backlog and the current vacancies for the different communities will be separately announced. First, the backlog vacancies will be filled by MBC/DNC category candidates through direct recruitment and then the current vacancies will be accommodated. This was also observed by the division bench in the same terms who agreed with the interpretation of Section 27 further being of the opinion that the proviso which contains the word “first” does not have any relation to the offer and placement of such reserved category candidates, including, MBC who attain their position by way of merit in the open category/General Turn vacancies.
The Court agreed with the observation and findings of both the single and division bench of the Madras High Court. The Court said that the principle of reservation category candidates making it on their own through merit have to be adjusted against the general category has never been doubted in the precedents referred to herein. Therefore, Section 27(f) of the Act cannot be read in a manner apart from any other reason to negate this very principle.
That Section 27 only deals with the reservation and has no relation whatsoever with the general candidate’s list/ General Turn vacancies. Those reserved category students who have made it on their own have not sought the advantage of the reservation and therefore, Section 27 would not be applicable up to that point. It would be exercised later only after filling up the seats on merit when the reservation principle begins.
Thus, the word “first” would be applicable in that stage when the backlog vacancies have to be filled first and the current vacancies will be filled after. There is no question of carrying forwarding/ having current vacancies for the reserved categories when the general category seats are being filled.
The Court referred to the steps stated in the Saurav Yadav case, for filling the vacancies which were,
- The general merit list to be first filled in;
- The backlog vacancies of the particular reserved category to be thereafter filled in “first”; and
- The remaining reserved vacancies for the current year to be filled thereafter.
However, the Court said such a situation might not arise in future as all the backlogs have been filled in. The performance and merit of the students will itself reflect in the list in question as to how many students attain an appointment on merit without availing the benefit of reservation. Hence, it was held that the increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.
The three-judge bench comprising of Sanjay Kishan Kaul J, Dinesh Maheshwari J, and Hrishikesh Roy J. in consideration of the appeal filed by the state of Tamil Nadu against the judgment of the Madras High Court, reiterated that the qualified student from the reserved category who have scored more than the cut-off marks for general category students have to be adjusted against general category based on their merit and not on the availing the reservation. This judgement gives a chance to the students from the reserved categories who could not avail the benefits from that reservation was used by the other people.
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