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In a significant observation, the Supreme Court noted that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to be included in General category seats.

The bench comprising Justice M R Shah and Justice B V Nagarathna added that the 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.

The bench was hearing an appeal filed by Bharat Sanchar Nigam Limited (BSNL) against an order of the Rajasthan High Court wherein the High Court had held that the selection of the two reserved category candidates was required to be adjusted against the general category since they had scored more than the last of the general category candidates appointed.

The bench referred to the Indra Sawhney versus Union of India of 1992, popularly known as the Mandal Commission verdict while dealing with a case of two OBC candidates seeking employment in BSNL.

The case is related to the appointment of Telecom Technical Assistants (TTAs) as per the notification dated October 6, 2008.

The appointment was planned to be made by direct recruitment through an open competitive examination in the Rajasthan Telecom Circle.

The bench noted that

(1) Candidates belonging to any of the vertical reservation categories are entitled to be selected in “open or general” category and it is also further observed that 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.

(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. 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. 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.

The High Court bench added,

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is noted that the aforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar, 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 that 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 herein. 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.”

In the instant case, Central Administrative Tribunal, Jodhpur had allowed the application of a candidate who contended that those candidates belonging to the OBC category, who were having more merit were required to be adjusted against the general category seats and consequently the seats reserved for OBC category were required to be filled in from remaining reserved category candidates on merit.

The High Court bench had dismissed the BSNL’s writ petition.


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