# JITENDER KUMAR SINGH & ANR v. STATE OF U.P. & ORS

- **Citation:** [2010] 1 S.C.R. 325
- **Court:** Supreme Court of India
- **Decided:** 2010-01-08
- **Case number:** Civil Appeal No. 74 of 2010
- **Bench:** Tarun Chaiterjee, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jitender-kumar-singh-anr-v-state-of-u-p-ors-26578
- **Pages:** 55

## Headnote

Constitution of India, 1950 - Articles 14, 16(1) and (4):
A
B
c
Direct recruitment on the post of Sub Inspectors and
Platoon Commanders - Reservation for Backward Classes,
Scheduled Castes, Scheduled Tribes - Relaxation of fee and
age - Selection of a reserve category candidate against
unreserved seats - Selection process, challenged by general 0
category candidate - Held: Concession in fee and age
relaxation would not fall within the definition of 'reservation' -
Such relaxation only enables candidates belonging to
reserved category to fall within the zone of consideration, so
that they can participate in open competition on merit - It does
E
not tilt the balance in favour of reserved category candidates,
in the preparation of final select list - It is only, thereafter, merit
of candidates is determined without any further concessions
in his favour- There is no infringement of Article 16(1)- UP.
Public Services (Reservation for Scheduled Casts and
F
Scheduled Tribes) Act, 1994 - ss. 3(6) and 8 - Government
instructions dated 25.03.1994.
Direct recruitment on the post of Sub Inspectors and
Platoon Commanders -
Reservation for outstanding
Sportspersons and women - Legality of - Carry forward of
posts - Permissibility of - Held: Vacancies reserved for G
women and outstanding sportsperson is to be filled by
applying 'horizontal reservation' - Any posts reserved for
women which remain unfilled have to be filled up from
325
H
326
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A amongst suitable male candidates with a specific prohibition
that posts shall not be carried forward for future - On facts,
State did not carry forward any of general category posts
reserved for women and outstanding sportspersons - Alf posts
remaining unfilled, in category reserved for women were filled
B up by suitable male candidates - Thus, Division Bench erred
in directing the State to fill in unfilled vacancies reserved for
women from suitable male candidates - Single Judge erred
in directing the State to recalculate vacancies reserved for
sportspersons - Conclusions with regard to 34 posts reserved
c for sportsmen category set aside - Government instructions
dated 26.02.1999 - Paragraph 2, 4.
Reservation under Article 16(1) and (4) - Benefit of -
Explained.
D
Precedent: Mere quoting of isolated observations in a
judgment - Held: Cannot be treated as a precedent de hors
the facts and circumstances in which the observation was
made.
E
An advertisement was issued for direct recruitment
on the post of Sub Inspectors and Platoon Commanders.
2% posts were reserved for outstanding Sportspersons
and the recruitments to these posts were to be made by
a separate advertisement. 10% of the posts were
F reserved for women. The procedure for selection was
carried out. The select list was prepared and the selected
candidates were sent for training. Appellantsunsuccessful candidates challenged the selection. Single
Judge of High Court dismissed the writ petitions seeking
quashing of the entire select list; and direction to the
G respondents to send them for training to the post of Sub
Inspectors. It directed the respondents to recalculate the
number of posts of general category candidates by
applying 2% reservation for sports men horizontally and
adding 2% posts of sports men also while calculating the
H total number of vacancies of general category candidates
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 327
& ORS.
and if any post in general category candidates quota A
remains vacant the same shall be filled up by the general
category candidates next in merit. The Division Bench of
High Court held that if a reserved category candidate
secured marks more than last General Category
candidate, he is entitled to be selected against unreserved
B
seat without being adjusted against reserved seat; that
52 vacancies of general category kept reserved for
women candidates remained vacant, the same had to be
filled from the general category male candidates and
could not be carried for

## Text

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[2010] 1 S.C.R. 325
JITENDER KUMAR SINGH & ANR.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 74 of 2010)
JANUARY 08, 2010
[TARUN CHAITERJEE AND SURINDER SINGH
NIJJAR, JJ.]
Constitution of India, 1950 - Articles 14, 16(1) and (4):
A
B
c
Direct recruitment on the post of Sub Inspectors and
Platoon Commanders - Reservation for Backward Classes,
Scheduled Castes, Scheduled Tribes - Relaxation of fee and
age - Selection of a reserve category candidate against
unreserved seats - Selection process, challenged by general 0
category candidate - Held: Concession in fee and age
relaxation would not fall within the definition of 'reservation' -
Such relaxation only enables candidates belonging to
reserved category to fall within the zone of consideration, so
that they can participate in open competition on merit - It does
E
not tilt the balance in favour of reserved category candidates,
in the preparation of final select list - It is only, thereafter, merit
of candidates is determined without any further concessions
in his favour- There is no infringement of Article 16(1)- UP.
Public Services (Reservation for Scheduled Casts and
F
Scheduled Tribes) Act, 1994 - ss. 3(6) and 8 - Government
instructions dated 25.03.1994.
Direct recruitment on the post of Sub Inspectors and
Platoon Commanders -
Reservation for outstanding
Sportspersons and women - Legality of - Carry forward of
posts - Permissibility of - Held: Vacancies reserved for G
women and outstanding sportsperson is to be filled by
applying 'horizontal reservation' - Any posts reserved for
women which remain unfilled have to be filled up from
325
H
326
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A amongst suitable male candidates with a specific prohibition
that posts shall not be carried forward for future - On facts,
State did not carry forward any of general category posts
reserved for women and outstanding sportspersons - Alf posts
remaining unfilled, in category reserved for women were filled
B up by suitable male candidates - Thus, Division Bench erred
in directing the State to fill in unfilled vacancies reserved for
women from suitable male candidates - Single Judge erred
in directing the State to recalculate vacancies reserved for
sportspersons - Conclusions with regard to 34 posts reserved
c for sportsmen category set aside - Government instructions
dated 26.02.1999 - Paragraph 2, 4.
Reservation under Article 16(1) and (4) - Benefit of -
Explained.
D
Precedent: Mere quoting of isolated observations in a
judgment - Held: Cannot be treated as a precedent de hors
the facts and circumstances in which the observation was
made.
E
An advertisement was issued for direct recruitment
on the post of Sub Inspectors and Platoon Commanders.
2% posts were reserved for outstanding Sportspersons
and the recruitments to these posts were to be made by
a separate advertisement. 10% of the posts were
F reserved for women. The procedure for selection was
carried out. The select list was prepared and the selected
candidates were sent for training. Appellantsunsuccessful candidates challenged the selection. Single
Judge of High Court dismissed the writ petitions seeking
quashing of the entire select list; and direction to the
G respondents to send them for training to the post of Sub
Inspectors. It directed the respondents to recalculate the
number of posts of general category candidates by
applying 2% reservation for sports men horizontally and
adding 2% posts of sports men also while calculating the
H total number of vacancies of general category candidates
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 327
& ORS.
and if any post in general category candidates quota A
remains vacant the same shall be filled up by the general
category candidates next in merit. The Division Bench of
High Court held that if a reserved category candidate
secured marks more than last General Category
candidate, he is entitled to be selected against unreserved
B
seat without being adjusted against reserved seat; that
52 vacancies of general category kept reserved for
women candidates remained vacant, the same had to be
filled from the general category male candidates and
could not be carried forward; and that the reservation in C
favour of sportspersons quota has to operate
horizontally, therefore, 29 vacancies which remained
unfilled could not have been carried forward. Hence the
_present appeals by the unsuccessful candidates as well
as State of U.P.
Allowing the appeals filed by the State and the
Director General of Police and dismissing that of the
'
General Category Candidates, the Court
D
HELD: 1. Reservation under Article 16(4) of the E
Constitution of India aims at group backwardness. It
provides for group right. Article 16 (1) guarantees equality
6f opportunity to all citizens in matters relating to
~~mployment. However, in implementing the reservation
policy, the State has to strike a balance between the
F
competing claims of the individual under Article 16(1) and
the reserved categories falling within Article 16(4).
Reservations should not be so excessive as to render the
Fundamental Right under Article 16(1) of the Constitution
meaningless. Therefore, utmost care has to be taken that G
the 50% maximum limit placed on reservation in any
particular year must be maintained. It must further be
ensured that in making reservations for the members of
the Scheduled Castes and Scheduled Tribes, the
maintenance of the efficiency of administration is not
H
328
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A impaired. [Paras 33, 35 and 36) [354-D-E; 356-D-F-G]
Indra Sawhney and Ors. vs. Union of India and Ors. 1992
Supp (3) SCC 217, followed.
Post Graduate Institute of Medical Education &
B Research, Chandigarh vs. Faculty Association & Ors. 1998
(4) sec 1, relied on.
2.1. A perusal of section 3(1) of the U.P. Public
Services (Reservation for Scheduled Casts and
c Scheduled Tribes) Act, 1994 would show that it provides
for reservation in favour of the categories mentioned
therein at the stage of direct recruitment. The
concessions falling within s. 8 of the Act of 1994 cannot
be said to be relaxations in the standard prescribed for
0
qualifying in the written examination. Section 8 clearly
provides that the State Government may provide for
concessions in respect of fees in the competitive
examination or interview and relaxation in upper age limit.
[Para 51) [369-A-B, E]
E
2.2. The Government issued instructions dated
25.03.1994 on the subject of reservation for Scheduled
Caste, Scheduled Tribe and other backward groups in
the Uttar Pradesh Public Services. It provided that, if any
person belonging to reserved categories is selected on
F the basis of merits in open competition along with
general candidates, then he will not be adjusted towards
reserved category, that is, he shall be deemed to have
been adjusted against the unreserved vacancies. It shall
be immaterial that he has availed any facility or relaxation
G (like relaxation in age limit) available to reserved
category." It is apparent that the relaxation in age limit is
merely to enable the reserved category candidate to
compete with the general category candidate, all other
things being equal. The State has not treated the
H relaxation in age and fee as relaxation in the standard for
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 329
& ORS.
selection; based on the merit of the candidate in the A
selection test i.e. Main Written Test followed by Interview.
Therefore, such relaxations cannot deprive a reserved
category candidate of the right to be considered as a
general category candidate on the basis of merit in the
competitive examination. Sub-section (2) of Section 8 B
further provides that Government Orders in force on the
commencement of the Act in respect of the concessions
and relaxations including relaxation in upper age limit
which are not inconsistent with the Act continue to be
applicable till they are modified or revoked. (Paras 51 and . C
52] [369-F-G; 370-B-D]
2.3. Relaxation in age is not only given to members
of the Scheduled Castes, Scheduled Tribes and OBCs,
but also the dependents of Freedom Fighters. Such age 0
relaxation is also given to Ex-servicemen to the extent of
service rendered in the Army, plus three years. In fact, the
educational qualifications in the case of Ex-servicemen
is only intermediate or equivalent whereas for the
General category candidates it is graduation. Exservicemen compete not only in their own category, but E
also with the General category candidates. No grievance
has been made by any of the appellants/petitioners with
regard to the age relaxation granted to the Ex-servicemen.
Similarly, the dependents of Freedom Fighters are also
free to compete in the General category if they secure F
more marks than the last candidate in the General
category. Therefore, there is no substance in the
submission that relaxation in age "queers the pitch" in
favour of the reserved category at the expense of the
General category. The relaxation in age does not in any G
manner upset the "level playing field". It is not possible
to accept that relaxation in age or the concession in fee
would in any manner be infringement of Article 16(1).
These concessions are provisions pertaining to the
eligibility of a candidate to appear in the competitive H
330
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A
examination. At the time when the concessions are
availed, the open competition has not commenced. It
commences when all the candidates who fulfill the
eligibility conditions, namely, qualifications, age,
preliminary written test and physical test are permitted to
B
sit in the main written examination. With age relaxation
and the fee concession, the reserved candidates are
merely brought within the zone of consideration, so that
they can participate in the open competition on merit.
Once the candidate participates in the written
c examination, it is immaterial as to which category, the
candidate belongs. All the candidates to be declared
eligible had participated in the Preliminary Test as also
in the Physical Test. It is only thereafter that successful
candidates have been permitted to participate in the open
0
competition. [Para 52) [370-F-H; 371-A-F]
2.4. The reserved category candidates have not been
given any advantage in the selection process. All the
candidates had to appear in the same written test and
face the same interview. It is therefore quite apparent that
E
the concession in fee and age relaxation only enabled
certain candidates belonging to the reserved category to
fall within the zone of consideration. The concession in
age did not in any manner tilt the balance in favour of the
reserved category candidates, in the preparation of final
F
merit/select list. It is permissible for the State in view of
Articles 14, 15, 16 and 38 to make suitable provisions in
law to eradicate the disadvantages of candidates
belonging to socially and educationally backward
classes. Reservations are a mode to achieve the equality
G of opportunity guaranteed under Article 16 (1).
Concessions and relaxations in fee or age provided to
the reserved category candidates to enable them to
compete and seek benefit of reservation, is merely an aid
to reservation. The concessions and relaxations place
H the candidates at par with General Category candidates.
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 331
& ORS.
It is only thereafter the merit of the candidates is to be
determined without any further concessions in favour of
the reserved category candidates. [Para 39) [358-G-H;
359-A-D]
Indra Sawhney and Ors. vs. Union of India and Ors. 1992
Supp (3) SCC 217, followed.
2.5. The submission that section 3 (6) ensures that
there is a level playing field in open competition, however,
A
B
c
s. 8 lowers the level _playing field, by providing
concessions in respect of fees for any competitive
examination or interview and relaxation in upper age limit,
cannot be accepted. Section 3 (6) is clear and
unambiguous. It clearly provides that a reserved category
candidate who gets selected on the basis of merit in open
competition with general category candidates shall not
D
be adjusted against the reserved vacancies. Section 3(1),
3(6) and s. 8 are inter-connected. Expression "open
competition" in s. 3 (6) clearly provides that all eligible
candidates have to be assessed on the same criteria. All
the candidates irrespective of the category they belong
to have been subjected to the uniform selection criteria.
All of them have participated in the Preliminary Written
Test and the Physical Test followed by the Main Written
Test and the Interview. Such being the position, it cannot
E
be said that the reserved category candidates having
availed relaxation of age are disqualified to be adjusted
against the Open Category seats. It was perhaps to avoid
any further confusion that the State of UP issued
directions on 25.3.1994 to ensure compliance of the
various provisions of the Act. Non-compliance by any
G
Officer was in fact made punishable with imprisonment
which may extend to period of three months. Thus, the
appeals filed by the General Category candidates are
without any substance. [Paras 53 and 54] [371-G-H; 372A-E]
F
H
332
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
2.6. The conclusion reached by the Division Bench
on the issue of concessions and relaxations cannot be
said to be erroneous. The Division Bench concluded that
concession in respect of age, fee etc. are provisions
pertaining to eligibility of a candidate to find out as to
B whether he can appear in the competitive test or not and
by itself do not provide any indicia of open competition.
The competition would start only at the stage when all the
persons who fulfill the requisite eligibility conditions,
namely, qualification, age etc. are short-listed. [Para 37)
C [357-A-C]
2.7. The observations in K.L. Narsimhan case make it
clear that if a reserved category candidate gets selected
on the basis of merit, he cannot be treated as a reserved
candidate. In the instant case, the concessions availed
D of by the reserved category candidates in age relaxation
and fee concession had no relevance to the
determination of the inter se merit on the basis of the final
wri.tten test and interview. The ratio of K.L. Narsimhan
case in fact permits reserved category candidates to be
E included in the General Category Candidates on the basis
of merit. Even otherwise, merely quoting the isolated
observations in a judgment cannot be treated as a
precedent de hors the facts and circumstances in which
the observation was made. The judgment in K.L.
F Narsimhan case having been set aside, it cannot be
accepted that the reasoning would still be binding as
precedent. Reliance placed upon the observation in K.L
Narsimhan case is wholly misplaced. [Paras 42, 43, 47
and 48) [361-C-E; 365-F-G; 366-A]
G
Post Graduate Institute of Medical Education & Research,
Chandigarh and Ors. vs. K.L.Narsimhan and Ors. 1997 (6)
sec 283, held inapplicable.
Union of India & Ors. vs. Dhanwanti Devi and Ors.
H 1996(6) SCC 44; State of Orissa and Ors. vs. Md.11/iyas
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 333
& ORS.
2006(1) SCC 275; Chakradhar Paswan (Dr.) vs. State of A
Bihar (1998) 2 SCC 214; Union of India vs. Madhav (1997)
2 SCC 332; Arati Ray Chaudhary vs. Union of India 1974 (1)
SCC 87; Dr.Preeti Srivastava and Anr.v. State of M.P. and
Ors. 1999 (7) SCC 120; Bharati Vidyapeeth and Ors v. State
of Maharashtra and Anr. 2004 (11) SCC 755; State of Madhya B
Pradesh and Ors. v. Gopal 0. Tripathi and Ors. 2003 (7) SCC
83, referred to.
3.1. The vacancies reserved for women and for the
outstanding sportsperson had to be filled by applying
'horizontal reservation'. Para 2 and 4 of the instructions C
dated 26.02.1999 state that the reservation will be
horizontal in nature i.e. to say that category for which a
women has been selected under the aforesaid reservation
policy for posts for women in Public Services and on the
posts meant for direct recruitment under State D
Government, shall be adjusted in the same category
only; that if a suitable women candidate is not available
for the post reserved for women in Public Services and
on the posts meant for direct recruitment under State
Government, then such a post shall be filled up from E
amongst a suitable male candidate and such a post shall
not be carried forward for future." The Single Judge
whilst interpreting the same observed that it does not
specifically provide for posts which are not filled up by
women candidates to be filled up from the male F
candidates. This view is contrary to the specific provision
contained in Paragraph 4. The said provision leaves no
matter of doubt that any posts reserved for women which
remain unfilled have to be filled up from amongst suitable
male candidates. There is a specific prohibition that posts G
shall not be carried forward for future. Therefore, the view
expressed by Single Judge cannot be sustained. [Paras
59, 60 and 61] [377-C-H; 378-A-B]
3:2. In view of the Para 2 and 4 of the instructions
dated 26.02.1999, the State has not carried forward any H
334
SUPREME COURT REPORTS
[201 OJ 1 S.C.R.
A of the general category posts reserved for women and
outstanding sportspersons. All the posts remaining
unfilled, in the category reserved for women have been
filled up by suitable male candidates, therefore, clearly no
post has been carried forward. Therefore, the mandate in
B Indra Sawhney and the G.O. dated 26.2.1999, have been
fully coupled with. The conclusion recorded by the
Division Bench is without any factual basis. The factual
position was brought to the notice of Division Bench in
the recall/modification application. However, the recall/
c modification application was rejected. The Division Bench
erred in issuing the directions to the appellants to fill in
the unfilled vacancies reserved for women candidates
from suitable male candidates. This exercise had already
been completed by the appellant-State. [Para 62] (378-CD E]
3.3. The Single Judge despite taking note of the
averments made in the supplementary counter affidavit
by the State, erroneously issued directions to recalculate
the vacancies reserved for outstanding sportspersons. It
E was specifically pointed out that a separate advertisement
had been published for recruitment on the post reserved
for outstanding sportsperson; and pointed out that all the
posts available in the category of sportsmen were filled
up in the subsequent selection. No post remained
F unfilled. Therefore, the conclusion of the Single Judge
that 34 posts-29 SICP+5 PC ought not to have been
deducted from the available 1478 posts for the purposes
of calculating the number of vacancies available to the
general category, was factually erroneous. The principle
G of horizontal reservation would also apply for filling up
the post reserved for outstanding sportsperson. There
could have been no carry forward of any of the post
remaining unfilled in the category of outstanding
sportsperson. As a matter of fact, there was no carry
H forward of the vacancies. They were filled in accordance
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 335
& ORS.
with the various instructions issued by the Government A
from time to time. Division Bench erred in law in
concluding that since the advertisement did not mention
that a separate selection will be held, for the post reserved
for sportsmen, the same would not be permissible in law.
The deduction of 34 posts for separate selection would B
not in any manner affect the overall ratio of reservation
as provided by law. The separate selection is clearly part
and parcel of the main selection. Thus, the conclusions
recorded by the Single Judge and the Division Bench
with regard to the 34 posts reserved for the outstanding c
sportsmen category-29 SICP+5 PC also cannot be
sustained. The direction issued by the Single Judge in the
final paragraph as well as the directions issued by the
Division Bench in modification of the order of Single
Judge are set aside. [Paras 63 and 64] [378-E-H; 379-A0
E-F]
Indra Sawhney and Ors. vs. Union of India and Ors. 1992
Supp (3) SCC 217, Followed.
Union of India and Anr. v. Satya Prakash and Ors. JT
2006 (4) SC 524, referred to.
Case Law Reference :
JT 2006 (4) SC 524
Referred to.
Para 27
1992 Supp (3) sec 211
Followed.
Para 33,
35,36, 39,59,62
(1998) 4 sec 1
Relied on.
Para 34
1997 (6) sec 283
Held inapplicable. Para 41,
42
1996(6) sec 44
Referred to.
Para 43
2006(1) sec 21s
Referred to.
Para 44
(1998) 2 sec 214
Referred to.
Para 45
E
F
G
H
A
B
c
D
:336
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
(1997) 2 sec 332
Referred to.
Para 45
1974 (1) sec 87
Referred to.
Para 45
1999(7) sec 120
Referred to.
Para 48
2004 (11) sec 755
Referred to.
Para 48
2003 (7) sec 83
Referred to.
Para 48
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 74
of 2010.
From the Judgment & Order dated 22.12.2006 of the High
Court of Judicature at Allahabad in Special Appeal No. 862 of
2002.
WITH
C.A. Nos. 75, 79, 80, 76-78 and 81 of 2010.
L.N. Rao, Dinesh Dwivedi, Dr. Rajeev Dhawan, S.R.
Singh, Shail Kr. Dwivedi, AAG, Sanjeev Kr. Singh, Siddhartha
Chowdhury, Manoj Kr. Dwivedi, Vandana Mishra, Abhishek Kr.
E
Singh, Ashutosh Kr. Sharma, Manish Srivastava, Gunnam
Venkateswara Rao, Jatendra Singh, Pallavi Mohan, Priyanka
Singh, S.K. Sabharwal, Jetendra Singh, Sunita Pandit, K.L.
Janjani, Amit Anand Tiwari, the appearing parties.
F
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J.
Civil Appeal Nos. 74, 79, 75, 80 of 2010
•
(arising out of SLP (C)Nos.1952, 1959, 1967 & 7739 of
G 2008
1. Leave granted.
2. These Appeals are directed against the common
Division Bench judgment of the High Court of Judicature at
H Allahabad dated 22.12.2006. By the aforesaid judgment, the
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 337
& ORS. [SURINDER SINGH NIJJAR, J.]
High Court decided number of Appeals directed against the
A
common judgment of the learned Single Judge in Writ Petition
No.25328 of 2001 and a number of other connected writ
petitions.
B
3. The appellants had assailed the judgment dated
22.5.2002 of the learned Single Judge to the extent that the Writ
Petition Nos.25328, 26847, 36411, 28836, 26177, 34039,
4630, 32763, 27849, 27060, 29069 of 2001 and 47528 of
2002 had been dismissed whereby the petitioners-appellants
were seeking a writ in the nature of mandamus directing the
C
respondents to send them for training to the post of Sub
Inspectors. In some of the writ petitions, a prayer had also been
made for quashing the entire select list which was also declined
by the learned Single Judge. In Special Appeal No.592 of 2006,
the appellant who was respondent had assailed the aforesaid
judgment of the learned Single Judge only to the extent the
D
Single Judge had issued a writ in the nature of mandamus to
the respondent-appellants to fill up vacancies against 2% Sports
Quota from the aforesaid selection itself. In Special Appeal
No.1285 of 2002, the original petitioner had challenged the
judgment dated 01.10.2002 passed by the learned Single
E
Judge (R.K.Agarwal, J.) dismissing the writ petition no.47528
of 2002 following the judgment dated 22.5.2002 of Ashok
Bhusan, J. in writ petition no.25328 of 2001 and other
connected matters (supra). In Special Appeal No.910 of 2005,
the original petitioner had assailed the judgment dated
19.7.2005 of Sunil Ambwani, J. dismissing writ petition
no.29383 of 2001 again following the judgment dated
22.5.2002 of Ashok Bhusan,J. (supra).
F
4. The dispute between the petitioners and the
G
respondents revolves around the issue of reservation of posts
for Backward Classes, Scheduled Castes, Scheduled Tribes,
Women Candidates and Sportspersons.
5. We may notice here the relevant facts before we advert
to controversy in detail.
H
338
SUPREME COURT REPORTS
[201 O] 1 S.C.R.
A
6. An advertisement was issued on 4.5.1999 for direct
recruitment on the post of Sub Inspectors in Civil Police
(hereinafter referred to as "SICP") and Platoon Commanders
in PAC (hereinafter referred to as "PC"). According to the
respondents, the break down of the posts was 1379 Posts for
B SICP and 255 posts for PC. Out of these posts, 2% posts were
reserved for outstanding Sportspersons. The recruitments to
these posts were to be made by a separate advertisement.
Apart from above, 10% of the posts were reserved for women.
7. The procedure for selection included a Preliminary
C Written Test consisting of 300 marks. Candidates were required
to secure at least 50% marks for being declared successful and
entitled to participate in further test. This was followed by a
Physical Test consisting of 100 marks. Again the candidate had
to secure at least 50% or more marks. The marks obtained in
D the Preliminary Written Test and the Physical Test were,
however, not to be included for determination of final merit.
Candidates who qualified in the Preliminary Written Test and
the Physical Test were required to appear in the Main Written
Test consisting of 600 marks, having two papers i.e. General
E Hindi, General Knowledge and Mental Aptitude Test. Here
again a candidate who secured 40% or more marks could only
be declared successful. The written test consisted of two
papers- (i) Hindi language and Essay consisting of 200 marks
and (ii) General Knowledge and Mental Aptitude Test consisting
F of 400 marks. Thereafter, the candidate was to appear for
interview which consisted of 75 marks. There were, however,
no qualifying marks for the interview.
8. It is common ground that in response to the
G advertisement, more than 50,000 candidates applied for the
posts. The result for the Preliminary Written Test which was held
on 6.2.2000, was declared on 22.9.2000. 7325 candidates
were found successful. Physical Test was held from 29.10.2000
to 6.11.2000 and 1454 candidates were found successful. The
Main Written Test was held on 29.4.2001 wherein 1178
H
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 339
& ORS. [SURINDER SINGH NIJJAR, J.]
candidates were declared successful. The final result of the A
interview was declared on 6.7.2001, wherein 1006 candidates
were declared successful. The number of persons who were
selected in different categories finally and have been sent for
Training is as under:-
B
1. General (Male) for the post of Sub Inspectors
608
2. General (Female) for the post of Sub
Inspectors (This included one dependent of
freedom fighter)
Note: 163 OBC, 19 Scheduled Castes and 1
c
Scheduled Tribes candidates having secured
more than the last general candidate, were
selected against general vacancies.
15
3. OBC (male) for the post of Sub Inspectors
168
D
4. OBC (female) for the post of Sub Inspectors
9
5. SC (male) for the post of Sub Inspectors
25
6. SC (female) for the post of Sub Inspectors
1
7. ST (male) for the post of Sub Inspectors
3
E
8. General (male) Platoon Commander in PAC
125
9. All the petitioners-appellants who applied pursuant to
the aforesaid advertisement had participated in the entire
selection process. However, the names did not figure in the
F
merit list of the selected candidates.
10. The selection was challenged in a number of writ
petitions by candidates who were not included in the select list.
According to the High Court, the selection was challenged on
G
the following grounds:-
1. The selection has been made by adopting pick and
choose method.
H
340
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
2. More than 600 posts are still vacant yet the petitioners
have not been declared successful.
8
c
D
E
3. There was no guideline or criteria for interview.
4. The number of candidates appeared for main
examination and interview being less than the total number
of vacancies, therefore, the petitioner-appellants could not
have been unsuccessful.
5. Several candidates having inferior educational record
have been declared successful.
6. Certain persons having Roll Nos.0492198, 520570,
0492263, 760146, 480612, 492353, 7706166, 790658;
790519 and 790035 did not find place in the result after
main examination yet have been shown as selected finally
in the final merit list which shows serious irregularities and
bungling in the selection.
7. Keeping large number of vacancies unfilled although
successful candidates are available is a motive for
extracting illegal demand.
11. The writ petitions were opposed by the State
Government by filing a detailed counter-affidavit in Writ Petition
No.26177 of 2001. The aforesaid counter-affidavit was said to
F
have been read on behalf of the State in all the cases. It was
explained by the State Government that in response to the
advertisement, total 53780 application forms were received. It
was further explained that 1178 candidates had qualified in the
main written test who appeared in the interview which was held
between 18.6.2001 to 1.7.2001. It was further explained that
G vide Government order dated 3.2.1999, 2956 posts of SICP
were sanctioned, out of which 50% posts were to be filled by
direct recruit and 50% posts by promotion. Therefore, 1478
posts came to be filled in by direct recruit. Since 99 posts were
filled under the Category of "Dying in Harness" Rules, only 1379
H
posts remained to be filled. Separate selection was to be held
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 341
& ORS. [SURINDER SINGH NIJJAR, J.]
on the 2% vacancies reserved for Sportspersons through a A
separate advertisement. Therefore, as a matter of fact, actual
recruitment was made i.e. only for 1350 posts of SICP and 255
posts of PC. The break-up of the posts was as indicated above.
12. Upon consideration of the entire matter, Ashok Bhusan,
B
J. delivered common judgment dated 22.5.2002 in CMWP
No.25328 of 2001 (Narendra Partap Singh vs. Director General
of Police, UP and others). All the writ petitions were disposed
of with the following observations:-
" In view of the foregoing discussions none of the C
contentions of the petitioner can be accepted except the
contention regarding 2% reservation for sports men. Relief
claimed by the petitioner cannot be granted except the
direction to the respondents to recalculate the number of
posts of general category candidates by applying 2% D
reservation for sports men horizontally and adding 2%
posts of sports men also while calculating the total number
of vacancies of general category candidates. If after
applying 2% reservation horizontally any post in general
category candidates quota remains vacant the same shall
E
be filled up by the general category candidates next in
merit. It is, however, made clear that by the said exercise
the selection already made will not be affected in any
manner.
All the writ petitions are disposed of with the aforesaid
F
directions"
13. This judgment was subsequently followed in the
separate judgments delivered by R.K.Agarwal, J. and Sunil
Ambwani, J. All the three judgments were challenged in appeals G
before the Division Bench, which have been decided by the
common judgment dated 22.12.2006.
14. The Division Bench noticed the submissions made by
the learned counsel for the parties in detail and formulated
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342
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
seven issues which arose in the appeals. The issues were as
under:-
8
c
D
E
F
G
"1. What is the extent of selection of a reserve category
candidate against unreserved seats and in what
circumstances he can be considered against unreserved
vacancies besides reserve seats. The relevant factors,
shades and nuisances for such adjustment also need to
be identified, if any.
2. Whether Section 3 (6) of Act of 1994 would apply where
a candidate of reserve category though has availed
relaxation meant for reserve category candidates namely
fee and age but in all other respect, in the selection test,
has competed with general category candidates and has
secured more marks than the last selected general
category candidate. In other words whether relaxation in
age and fee would deprive and outsource him from
competing against an unreserved seat in an open
competition with general candidates.
3. Whether selection of reserve category candidates
against reserved and unreserved constituting more than
50% is unconstitutional or otherwise contrary to law.
4. Whether reservation of seats for women is violative of
Article 16(2) of the Constitution of India.
5. Whether seats reserved for women can be carried
forward in case suitable candidates are not available or
the reservation being horizontal and applicable to all
categories, the unfilled vacancies are to be filled by
suitable male candidates.
6. Whether keeping 2% sports quota separate from the
selection in question is illegal.
7. Whether selection in question is otherwise vitiated on
H
account of any alleged irregularity or bungling.
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 343
& ORS. [SURINDER SINGH NIJJAR, J.]
15. The Division Bench noticed the historical background
A
in which the provisions with regard to reservation came to be
incorporated in the Constitution of India. The Division Bench
also noticed the entire history with regard to the various
government orders making reservation for different categories.
The Division Bench notices that the matter of reservation has B
been dealt in detail by this Court in numerous cases. Therefore,
the Division Bench has confined itself to the problem as, faced
and countered, in the State of U.P; particularly with reference
to the category of the candidates belonging to 'O.B.Cs.' The
Division Bench also noticed the statutory provisions contained c
in the U.P. Public Services (Reservation for Scheduled Castes
and Scheduled Tribes) Act, 1994 (hereinafter referred to as "the
Act of 1994"). The High Court considered issues no.1, 2 and
3 together.
16. The Division Bench has concluded that the various D
Government orders and the Act of 1994 provide reservation in
State services with the intent to achieve the goal of adequate
representation of Backward Classes of Citizens in service. It
notices that reservation under Article 16(4) has to be made
keeping in view the provisions contained in Article 14, 16(1) E
and 335 of the Constitution of India. It is also held that there
are various modes and methods of providing reservation. The
extent and nature of reservation is a matter for the State to
decide considering the facts and requirements of each case.
In this case the Legislature has empowered the State to extend
F
concessions limited to fee and age to OBCs, besides keeping
reservation of seats to the extent of 27%. The prime objective,
obviously, is to provide adequate representation to these
classes, which in the opinion of the Legislature are not
adequately represented in the services under the State. The G
Division Bench also concluded that the State Government has
not conducted any indepth study to find out as to whether
adequate representation has been given to any particular
Backward Classes as a result of successive provisions for
reservation. Therefore, a direction has been given to the State H
344
SUPREME COURT REPORTS
(201 O] 1 S.C.R.
A
Government of U.P. to undertake an indepth study to find out
the representation of various Backward Citizens in Public
service and to find out whether any Backward Class citizens
have achieved the constitutional goal of adequate
representation in service or not. Thereafter, the Government is
B
to review the policy in the light of facts, figures and information
received pursuant to such study. The exercise is to be
undertaken by the State Government within six months and a
compliance report is to be submitted to the Court.
17. With regard to the manner, mechanism and interC
relationship of various concessions and reservations, the
Division Bench observed that it is permissible for the State to
provide concessions to achieve the goal under Article 16(4)
without keeping the seats reserved for any backward class of
citizens. When certain seats are reserved, it would not result
D in making unreserved seats compartmentalized for General
Category candidates i.e. unreserved candidates. There is no
reservation for General Category Candidates. It is also held that
a reserved category candidate, in addition to the reserved
seats, can always compete for unreserved seat. The Division
E
Bench has further held that the reserved category candidate
can also compete against the unreserved seats under a criteria
which is uniformly applicable to all the candidates. In case the
selection criteria is lowered for the reserved category
candidate, then such difference in standard or criteria would
F
disentitle the reserved category candidate to compete in the
general category. After analyzing the law laid down by this Court
in numerous judgments, the Division Bench has concluded that
the conflicting claims of individuals under Article 16(1) and the
preferential treatment given to a backward class under Article
G
16(4) of the Constitution has to be balanced, objectively. The
Division Bench then considered as to whether the concession
or relaxation in the matter of fee and age would deprive a
reserved candidate of his right to be considered against an
unreserved seat. Can it be said that such a candidate is not a
H
person who has competed with the general category in an open
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 345
& ORS. [SURINDER SINGH NIJJAR, J.]
competition. It is noticed that under GOs (Government Orders)
A
dated 11.04.1991, 19.12.1991 and 16.04.1992 and the
clarification dated 19th October, 1992, it was provided that a
reserved category candidate cannot compete with the open
category candidate(s) after availing preferences which result in
lowering of the prescribed standards. Such a candidate would
only be considered against seat/post for the reserved category.
However, after the promulgation of the 1994 Act and issuance
B
of the Instructions dated 25th of March, 1994, the State
Government has not treated relaxation in age and fee as
relaxation in the standard of selection. Therefore, even if a c
candidate has availed concession in fee and or age limit, it
cannot be treated to be a relaxation in standard of selection.
Therefore, it would not deny a reserved category candidate
selection in Open Competition with General Category
candidates. Such concessions can be granted by the State
0
under Section 8(1) of the Act. The Division Bench has also held
that a relaxation in age and concession in fee are provisions
pertaining to eligibility of a candidate to find out as to whether
he can appear in a competitive test or not and by itself do not
provide any indicia of open competition. The competition would
start only at a stage when all the persons who fulfill all the
requisite eligibility qualification, age etc. are short listed. The
candidates in the zone of consideration entering the list on the
basis of aforesaid qualifications would thereafter participate in
competition and open competition would commence therefrom.
Therefore, concession granted under Section 8 would not
disentitle a reserved category candidate of the benefit under
Section 3 sub-Section (6).
18. In view of the above legal position, it has been held
E
F
that if a reserved category candidate has secured marks more
G
than the last General Category candidate, he is entitled to be
selected against the unreserved seat without being adjusted
against the reserved seat. According to the Division Bench,
merely because 183 candidates, belonging to the reserved
category, have been successful against unreserve~ seats would
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346
SUPREME COURT REPORTS
[201 OJ 1 S.C.R.
A not result in reverse discrimination, as apprehended by the
petitioners. This is particularly so as selection of such reserved
category candidate against the unreserved seats would not be
material for the purpose of applying the principle of reservation
being limited to a total of 50%.
B
19.