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Monday, May 25, 2009

Can quota category candidates, selected on merit, have service preference?

Can quota category candidates, selected on merit, have service preference?
J. Venkatesan

Centre appeals against High Court verdict holding ultra vires CSE Rule 16 (2)
“Reserved category candidates selected on merit have not availed themselves of any relaxation”

New Delhi: A five-judge Constitution Bench of the Supreme Court will consider whether candidates in a ‘reserved category’ selected on merit and placed in the ‘unreserved category’ in the Central Civil Services Examination could be given a choice to opt for service of higher preference in terms of Rule 16 (2) of the CSE Rules at the time of ‘service allocation’.
This rule says: “While making service allocation, candidates belonging to SC/ST or OBCs recommended against unreserved candidates may be adjusted against reserved vacancies by the government if by this process they get a service of higher choice in the order of their preference.”
A three-judge Bench consisting of Chief Justice K.G. Balakrishnan and Justices P. Sathasivam and J.M. Panchal in its order said: “In view of the fact that the issues raised and discussed relating to amended Rule 16 of the CSE are applicable to all Central Civil Services, we are of the view that an authoritative pronouncement is needed. Hence all these SLPs and writ petitions are referred to a Constitution Bench.”
The Centre appealed against a Madras High Court judgment holding ultra vires and unconstitutional Rule 16 (2) and directing it rework service allocation dehors Rule 16 (2). Certain writ petitions were also filed.
The Supreme Court stayed the High Court judgment and on Thursday referred the matter to a larger Bench.
The Bench, quoting the ‘Indra Sawhney vs. Union of India’ judgment which said that while “50 per cent [maximum] shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people … It may well happen that some members belonging to say, Scheduled Castes, get selected in the open competition filed on the basis of their own merit; they will not be counted against the quota reserved for SCs; they will be treated as open competition candidates.”
Writing the judgment, the CJI said: “In the light of this decision [the question arises] whether it is reasonable not to give better preference of posts in service for the persons of reserved category who have been selected in the open competition field on the basis of their own merit and even if they are given such better preference whether that should not come under this specific percentage as it will only be a certain relaxation or concession and not a proper form of reservation.”
The Bench said: “As far as amended Rule 16 is concerned, it is to be noted that reserved category candidates selected in the merit/unreserved category upon the basis of their merit have not availed [themselves] of any relaxations which are only available for the reserved category candidates.”
The Bench said that “in the present case, the UPSC has provided the amendment of Rule 16 which has been made to fulfil certain objective specified in the Rules.”
However, the question whether reserved category candidates could actually avail themselves of better preference of service under the reserved category list or not could be decided only by a Constitution Bench.

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