BHARAT SANCHAR NIGAM LIMITED & Anr. v. SANDEEP CHOUDHARY & Ors.

Judgment

1002 SUPREME COURT REPORTS [2022] 4 S.C.R. 1002 [2022] 4 S.C.R. A B C D E F G H BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP CHOUDHARY & ORS. (Civil Appeal No. 8717 of 2015) APRIL 28, 2022 [M. R. SHAH AND B. V. NAGARATHNA, JJ.] Constitution of India, 1950 – Arts. 14, 16 and 142 – Reservation in employment – Whether in a case where the reserved category candidates secured more marks than the general category candidates, such reserved category candidates will have to be first adjusted in the general category pool and they shall be considered for appointment in the general category pool or against the vacancies meant for reserved category candidates – Held: The reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories – Thus, two candidates belonging to OBC category, were required to be adjusted against the general category as they were more meritorious than the last of the general category candidates – Consequently, after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from the remaining reserved category candidates on merit such as Respondent No. 1 – However, insertion of the two OBC candidates into general category select list may unsettle the entire selection process resulting in expulsion of two general category candidates working since long – Therefore, to strike a balance, the two candidates from OBC category must be treated in general category seats and Respondent No. 1 shall be appointed against the reserved category seats with the seniority from the date of appointment of general category candidates – At same time, the candidates already appointed in general category shall not be removed – Constitution of India – Art. 142. Words and Phrases – Difference between “horizontal reservation” and “vertical reservation” explained. 1002 BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP CHOUDHARY & ORS. 1003 Dismissing the appeal, the Court HELD: 1.1. Candidates belonging to any of the vertical reservation categories are entitled to be selected in “open or general” category and if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories that they belong. [Para 8.5] [1018-G-H]

1.2. The reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. It is further observed and held that even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It is further observed that the 19 candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so. [Para 8.6][1019-A-C]

#2. In the present case, the two candidates belonging to OBC category, were required to be adjusted against the general category as admittedly they were more meritorious than the last of the general category candidates appointed and their appointments could not have been considered against the seats meant for reserved category. Consequently, after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as respondent No.1. If such a procedure would have been followed, the original applicant – respondent No.1 would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure. However, by reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed shall have to be expelled and/or shall have to be removed, who are working since long and it may unsettle the A B C D E F G H 1004 SUPREME COURT REPORTS [2022] 4 S.C.R. entire selection process. Therefore, to strike a balance and to ensure that the two general category candidates, who are already appointed will not have to be removed and at the same time, respondent No.1 – original applicant being a reserved category candidate also gets accommodated, if he is so appointed, in exercise of the powers under Article 142 of the Constitution of India, it is ordered that on reshuffling and on respondent No.1 – original applicant being appointed now against the reserved category seats and while the other two candidates belonging to OBC category, to be treated in the general category seats, two candidates already appointed and belonging to general category shall not be removed. However, respondent No.1 shall get the seniority from the date of appointment of general category candidates who were having lesser merit than the aforesaid two reserved category candidates. [Para 9][1019-C-H; 1020-A-D] Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454 and R.K. Sabharwal v. State of Punjab (2007) 8 SCC 785 : [2007] 8 SCR 972 – followed. Union of India v. Ramesh Ram (2010) 7 SCC 234 : [2010] 6 SCR 698 – distinguished.