Reservation For General

RESERVATION TO GENERAL COMMUNITY IN UPSC-CSE

Introduction:
In 2007 examination, out of 734 selections, 96 candidates belonging to OBC,SC and ST were selected in general standards in Open Competition. Initially, in adherence to Madras High Court orders, 190 OBC, 109 SC and 53 ST were selected in respective quota and in addition, 76 OBCs, 19 SC and 01 ST who came in general standards were also selected. Though there was interim stay by supreme court on 19th May 2008, instead of waiting for final verdict, suddenly, The UPSC, in its modified results announced on 26th June , has excluded equivalent number of reserved community candidates from their quota thereby announcing results only for 638 candidates. Thus 96 candidates from reserved community have been refused jobs. In their place 96 General candidates are sought to be selected through 2nd list which will happen after some time. The 16(2) which apparently looks as if it is beneficial to reserved candidate it grossly disables them from availing the quota earmarked for them . In other words it restricts them within their quota even though some of them get selected under Open Competition.

Limiting reserved candidates within their quota:

1. Govt of India provides 27% reservation for OBCs; 15% for Scheduled Caste; 7.5% for ST and the remaining 50.5% goes to Open Competition. According to principle of reservation, Open Competition Should include SC,ST and OBCs who came within top 50.5% . Of late it excludes SC, ST and OBC from 2002 exam results onwards. It should be called as ‘Open Competition’ instead of ‘General’ as at present. The extant system of reservation being followed by UPSC results in exclusive reservation of 50.5% to General candidates thereby limiting OBC,SC and ST within their quota percentage.

2. The Mandal Commission recommendations are followed in UPSC Civil Services Examination from year 1994 onwards. During the period from 1994 exam to 2001 exam, UPSC selected additional candidates from OBC/SC/ST equivalent to their representation in Open Competition in addition to their quota. So, we can say that UPSC followed principle of reservation. Now, after selection it is the duty of Department of Personnel and Training which is known hereafter as DoPT, to allocate various services like IAS, IPS, IRS, Customs, IDAS, IRAS, RPF, IIS, ITS etc. Here the problem started. Equivalent number of OBC/SC/ST from the bottom of the respective community wise list, were later dropped. It was done as follows.

3. To illustrate, say 10 SC candidates came within Open Competition at ‘general standards’. We know that here will be 15% SC who came in quota using relaxed standards. Now, it may happen that an SC candidate say ‘ABC’ who came in Open Competition, may get a lower service compared to another SC, who came through quota and who is lower to the former in rank. What DoPT did, was, it migrated the 10 SC candidate from Open Competition to SC quota thereby pushing down the other SC candidates . This particular candidate ‘ABC’ may be given higher service. But, it comes at what cost. There is another SC candidate from quota gets pushed out. Thus equivalent 10 SC candidates were refused any service. Since many candidates went to court, and got favourable orders for reinstatement, DoPT amended rule 16(2) to do the deprivation at the selection stage itself. Thus UPSC is a compelling party to the entire issue. Thus we see, from year 2002 onwards, OBC/SC/STs were restricted within their quota at the selection stage itself.


4. Community. In 2005 examination, vacancies were 242 Open Competition , 117 OBC , 66 SC and 32 ST totaling to 457. While filling up, the UPSC announced results in two phases, one on 08th May 2006 for 425 candidates and the other on 03rd April 2007 for 32 candidates. Though 31 OBCs and 01 SC came within Open Competition without using any kind of relaxation in terms age, number of attempts and qualification, they were counted within their respective quota . We see, there were 117 OBCs which is 27% of 425, but it includes 31 candidates who came in Open merit which means that only 86 OBCs came through reservation which is 18.8% out of 457 . Similarly 01 SC candidate. Out of 210 General all were found to be general at the cost of exclusion of 31 OBCs and 01 SC. Normally, if there are 210 vacancy for Open Competition, the last rank would end at 210 except to accommodate physically handicapped general and to take more general equal to number of OBCs/SC/ST who availed relaxed standards despite getting higher rank. But what happened was, after rank 210, there are 32 General upto rank 293. Thus it amounts to giving exclusive reservation to General as well as selecting them under relaxed standards. Thus, the merit has been compromised when it comes to selecting General. At he same time flimsy grounds like giving higher service deprives reserved candidates of their legitimate share in job. This is against various judgments of the Supreme Court as well as High Courts. Some of the cases which are not followed by DoPT are

(i) Indra Sawhney Vs Union f India
(ii) R.K.Sabharwal And Others Vs. State Of Punjab And Others
(iii) Ritesh R Sah Vs Dr. Y.L. Yamul & ORS. 1996 SCC (3) 253
(iv) Anurag Patil case 2005 (9) SCC 742 .
(v) Satyaprakash & anrs Vs Union of India
(vi) Sheikh Mohd.Afzal Vs. State Of Rajasthan And Another [Air 2008 Rajasthan 21]


5. The reason quoted by UPSC is, when a OBC candidate who came in Open merit, is considered for service allocation, it may happen that he will get lower preferred service viz-a-vis another OBC candidate who is lower to him in rank and who came in relaxed standards under OBC quota. To tide over the anomaly, it is said, this particular OBC is moved to OBC quota so that he can get a service of his choice. Illustration: If there is OBC at rank 64, he may get IPS or IRS being in that rank in Open Merit, but if he is put in OBC quota he will get IAS, and thus he is reckoned as OBC because he got the benefit of service allocation. Is it right? Here two things happen. First, he goes and gets IAS which is kept reserved for a reserved OBC. Thus he gets IAS at the cost of displacement of a candidate who can otherwise get IAS being in reserved OBC. The constitutional right of a reserved OBC candidate is affected. Secondly, he leaves a service IPS or IRS at rank 64. It is given to another General. The question is can that be given to another OBC.

6. There are various supreme court verdicts saying that even when some reserved candidate coming within Open merit standards, avails a betterment by resorting to reserved category, but for purpose of calculation of percentage of reservation his place in Open merit should be preserved for the community he belongs to. To illustrate, the job and service available under 64th place earlier i.e IPS should be given to some other OBC who was earlier affected by the availing of better service IAS by 64th candidate. We will discuss some of the Supreme Court cases. Before doing that let us take a look at rule 16(2) old and new which is the fundamental cause for all confusion.

Rule 16(2) was amended on 18th April 2008.
Old rule 16(2) New rule 16(2)
“Provided that the candidates belonging to the S.C, the S.T and the OBCs who have been recommended by the Commission without resorting to the relaxed standard referred to in this sub-rule, shall not be adjusted against the vacancies reserved for the S.C, S.T and OBCs.”
“ While making service allocation, the candidates belonging to the SC, ST or OBC recommended against unreserved vacancies 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.”


In Anurag Patel Vs Uttar Pradesh Sate Public Service commission(2005 9 SCC 742),

7. The Apex court was approached by OBC candidates who got selection in general. Two of them who has secured rank 13 and 14 in the merit list, were appointed as Sales Tax Officer-II, whereas the persons who secured rank Nos. 38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors. This anomaly was corrected by the court which ordered to prepare a list combining OBCs and OBCs who came in general as per rank and person higher in rank will get service of his choice. If this case is applied, then there will be 117 OBCs plus 31 OBCs who came in merit in 2005 CSE . A combined list of 148 needs to be prepared and services originally available to them earlier against their rank be redistributed so that higher ranked candidate will get higher preferred service. This did not happen in the present case on hand.

8. The Anurag Patel verdict says,
"... list of all selected Backward candidates shall be prepared separately including those candidates selected in the general category and their appointments to the posts shall be strictly in accordance with the merit as per the select list and preference of person higher in the select list will be seen first and appointment given accordingly, while preference of person lower in the list will be seen only later. We do not think any error or illegality in the direction issued by the Division Bench of the High Court”

9. By this there will be no change in the total number of services available to this category. The logic behind this methodology is that when it comes to service allocation, OBC or SC candidates who obtained higher ranking in unreserved category should not be put to a disadvantage in comparison to those OBC’s/SC who come by relaxed standards. At the same time, it will not be detrimental to the interests of reserved candidates who could have got selection but were not. This is the only way by which the community wise representation will not be altered. This methodology does not alter or affect other community’s share in selection and allotment. Had this methodology been followed, 148 OBC candidates and 67 SC would have been selected against their present number of 117 OBC and 66 SC in 2005 exams. It would also ensure that slots vacated by reserved candidates from general would only go to some other reserved candidates.

10. Instead of taking cognizance of Anurag Patel verdict, the authorities took a stand before High Court that this verdict cannot be applied in Civil Service Examination. It is submitted that the Combined State Services/Upper Subordinate Services Examination conducted by UPPSC is similar to Civil Services Examination conducted by UPSC in which several services, like UP Civil (Executive) Service (for Dy. Collector Posts), UP Police Service (for DSP posts), UP Finance & Accounts Service(for Treasury Officer/Accounts Officer Posts) etc. participate each year. The pattern of Combined State Services Examination conducted by UPPSC is also similar to Civil Services Examination conducted by UPSC. The process of selection in the above said examination conducted by UPPSC is also done in three stages, viz, preliminary examination, mains examination and the personality test/interview, as is done for Civil Services Examination conducted by UPSC.

11. It is submitted that the claim by the UPSC and DoPT that Rule 16(2) sub serves and further advances the very principle of reservation is a misleading statement. While it sub served the interests of 31 OBCs who came in the general category, it prevented equal number of OBC candidates from selection. While the claim seems to be in consonance with first portion of judgment of this Hon’ble Court in

12. Ritesh R Sah Vs Dr. Y.L. Yamul & ORS. 1996 SCC (3) 253 i.e

“In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates….”,

It ignores the second part of the judgment
“In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved category candidate” Thus, the claim statement is against the judgment in the Ritesh R Sah case in letter and spirit.

13. The claim of authorities that the Rule 16(2) sub serves the principle of reservation is false on the ground that Rule 16(2) provides “ …. may be adjusted against reserved vacancies if by this process they get a service of higher choice..”. This is against the principle enunciated in the Ritesh R Sah case. While providing the option of higher choice of service for OBCs who came within the general category on merit, for calculation of percentage of reservation they should have been counted as general category candidates. On this ground alone, Rule 16(2) becomes null and void. It fails to subserve even on the ground that 32 reserved candidates were excluded from selection .

14. An analogy may be drawn between this case and Ritesh R Sah case. While there were preferred colleges for MBBS admission, in civil services there are preferred services. Option of choosing preferred colleges is akin to option of choosing more preferred services. Instead of following Ritesh R Sah case, the authorities falsely took the cover of same case for their unconstitutional action of depriving selection of 31 OBCs.

15. Satyaprakash &Ans Vs union of India verdict (April 2006)
“18.By way of illustration, if a reserved category candidate, recommended by the Commission without resorting to relaxed standard (i.e. on merit) did not get his own preference ‘say IAS’ in the merit/open category, he may opt for his preference from the reserved category, but simply because he opted for a preference from the reserved category, he does not come within the quota of OBC category candidates selected under relaxed standard. Such preference opted by the OBC candidate who has been recommended by the Commission without resorting to the relaxed standard (i.e. on merit) shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and other Backward Classes…

19.In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to relaxed standard.”

Here it may be mentioned that the DoPT was asked to pay Rs.5,000/- as costs to Satyaprakash by the Delhi High Court and again the Supreme court imposed a costs of Rs. 10,000/- on DoPT for not following principle of reservation

16. Y.V. Patil & Ors Vs. State of Maharastra & Ors, (2005) 12 SCC 311 and Earmarking Principle
“(vi) Earmarking - Reserved category candidate entitled to admission on the basis of merit in an open category seat will have the option of taking admission either against his/her respective category seat or on an open category seat. If he/she opts for the reserved (sic open) category he/she will be deemed to have been admitted as an open category candidate and not as reserved category candidate. One seat in the college where he/she was eligible for admission against open seat shall be earmarked for a candidate belonging to the respective reserved category. Such earmarked seat will be made available immediately to the successive reserved category candidate from the same category of merit during the counseling.”
17. Thus in Civil Service Examination, the IPS left behind at 64th rank be earmarked for another candidate belonging to the respective reserved category an so on. Thus the 31 higher services left behind by OBCs in general will be preserved for some other OBCs. This will be in consonance with Anurag Patel, Ritesh R Sah etc.
18. In Union of India vs Virpal Singh Chauhan (1995) 6 SCC 684 it has been held by this Court (at page SCC 705) that while determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the Rule of merit (and not by virtue of Rule of reservation) shall not be counted as reserved category candidates. ”

19. Indra Sawhney V. Union of India 1992 Supp (3) SCC 217. This Court at (SCC p. 735, para 811 held as under :
‘In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.’

20. The Apex court clarifies, giving more preferred services to reserved candidates will not qualify to be termed as using reservation benefits. Para 58 of Indra Sahwney judgment makes it amply clear as mentioned below.
“58. The question arises whether clause (4) of Art. 16(4) is exhaustive of the topic or reservation in favour of backward classes. Before we answer this question, it is well to examine the meaning and content of expression ‘reservation’. Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are, “any provision for the reservation of appointments or posts” The question is whether the said words contemplate only one form of provision namely reservation simpliciter, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The Constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservation takes within its sweep all supplemental and ancillary provisions also lesser types of special provisions like exemptions, concessions and relaxations consistent no doubt with the requirement of maintenance of efficiency of administration- admonition of Art.335. The several concessions, exemptions and other measures issued by the Railway Administration and noted in Karmachari Sangh are instances of supplementary, incidental and ancillary provisions made with view to make the main provision of reservation effective i.e. to ensure that the members of the reserved class “fully avail of the provision of reservation in their favor”……. In our opinion, therefore, where the state finds it necessary- for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary “provision to ensure full availment of provision for reservation can be provided as part of concept of reservation itself”. Similarly, in a given situation the state may think that in the case of a particular Backward class it is not necessary to provide reservation of appointments/posts- and that it would be sufficient if a certain preference or concession is provided in their favour. This can be done under Clause (4) itself
It is, however, made it clear that the rule of 50% shall be applicable to reservations proper; they shall not be- indeed cannot be applicable to exemptions, concessions, relaxations, if any, provided to Backward class of citizens under Art. 16(4).”

21. In Civil Service Examination, a Kashmir Brahmin gets age relaxation of 3 years. When it can not be called relaxed standards for General Community, then the same principle should be applied to reserved community also. On this ground alone the whole edifice of argument that some of the reserved candidates who came in Open merit availed age relaxation etc. will crumble. Also, Service allocation is a methodology and the very convenience of conducting a single examination for multi services can not be made a ground for reducing the number of seats available to reserved candidates.

22. The Madras High court in its order says “It is clear that 32 candidates who are eligible to be included in the open unreserved merit list, were included in the OBC list and SC list as a result of which, the same number of OBC and SC candidates, who are eligible for consideration under the reserved category are deprived. This is not the intention of the judgment of the Honourable Supreme Court in Satyaprakash's case or the intention of Rule of reservation enshrined under Article 16(4) of the Constitution. Transfer of meritorious reserved candidates posts to the unreserved category, by treating the meritorious reserved candidates not as unreserved category candidates, but as reserved candidates, is keeping the unreserved category posts intact, while depriving the rights of the same number of reserved category candidates. Therefore, the methodology narrated by the official respondents is contrary to the very Rule of reservation enshrined under Article 16(4) of the Constitution.”

23. In R.K.Sabharwal And Others Vs. State Of Punjab And Others [(1995) 29 Administrative Tribunals Cases 481], a Constitutional Bench of the Honourable Supreme Court has held:
“4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation...... When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats...."


24. What is the Problem with 2nd list (consolidated Reserve List) introduced from year 2002.

Till year 1993, there was a system of 2nd list which was used to fill up unjoined or unfilled vacancies. It is very good system.

But there was no such list from year 1994 to 2001. So large number of vacancies went unfilled during these years.

From year 2002, strangely original vacancy was reduced by that many candidates(reserved) who came in Open merit without using relaxed standards, and this number was sought to be selected through 2nd list. To Illustrate, in year 2005 exam, 32 (31 OBC + 01 SC) who came in Open merit, a consolidated reserve list of candidates was maintained with 32 general, 31 OBC and 01 SC, and from this 64 candidates, 27 General and 05 OBC were finally selected. The invention of 2nd list was as a result of introduction of rule 16(2).

2nd list created more problem

25. There are serious repercussions even for candidates who get placement through this list. Here is an illustration for year 2004. Total vacancies were 453. First phase results was announced for 422 and the second phase results was announced for 31 candidates. Suppose a general candidate ABC comes through 2nd list and he is in 22nd place out of 31 in the 2nd list. Later he is kept in rank 444 i.e 422+22=444.. He would join training a year later than his batch mates as the results of 2nd list is announced almost 9 months after 1st list. Immediate problem faced by ABC is that whatever service he is appointed, he will always be junior to his batch mates.

26. The more serious problem is as follows. Suppose another candidate XYZ from ST who got rank say 395 through 1st list and whose mark in civil service exam is 1130 out of 2300. Whereas the candidate ABC who is general and whose mark is 1197 out of 2300 is given 444th rank as he comes through 2nd list. i.e we see that lower scoring candidate XYZ who got selection from first list gets higher rank than a higher scored general candidate ABC just because he comes through 2nd list. This is highly illogical. This creates career problem for ABC. Generally, in Group 'A' services, UPSC rank is the basis for seniority and promotions. Thus it is clear from above sentences that, candidate ABC will be below candidate XYZ. Thus the system of 2nd list undermines merit. Now these candidates are knocking the doors of authorities to get the anomaly resolved. Thus the whole system of 2nd phase by resorting to rule 16(3) to (5) is based on flawed logic and may not stand scrutiny of any rationale .

27. The system of announcing results in two phases has created more problems then solving it on following counts.

(i) Firstly it undermines the right of OBC,SC and ST candidates to get higher preferred services like IPS or IRS had there been only one list.
(ii) Secondly, it reduces the number of reserved candidates while simultaneously increasing the number of general candidates.
(iii) Thirdly, it puts candidates who come through 2nd list at a disadvantage in terms of seniority and promotions for rest of their career in their respective services. Thus the claim that rules 16(2) to (5) is fair to all candidates is a mirage. Invention of 2nd list by introducing rules 16(3) to 16(5) should be avoided.

28. Second List is a ploy to select more general candidates through back door
Though the rationale behind 2nd list though flawed is to compensate OBC/SC/ST candidates equal to their representation in Open Merit. But in reality, this 2ns list is being used as a conduit for selecting more general candidates. The following table depicts their placement from year 2002.
Candidates through 2nd list 2002 2003 2004 2005 2006 2007
Total selection 24 44 31 32 58 96
General Selection 21 35 22 27 ** **
(**= Selection from 2nd list Yet to be declared )

29. Thus, only miniscule minority seats i.e 3, 9, 9 and 5 in years 2002 to 2005 only went to OBC/SC. The figure for OBC is 2, 7, 9, 5 from 2002 to 2005 ; for SC the figure is 1, 2, nil, nil for the same period.

30. Reservation to General
Though there were 286 general candidates in the modified first results, going by the principle of merit one would expect the last rank of general should be 286 except to extend it further down to accommodate handicapped general and to have more general in place of OBC/SC/ST who availed relaxed standards who came within last general rank.

But, blatantly, the last rank of general who is not handicapped is 505. This is atrocious. After the rank 286 alone, there are 111 General candidates upto rank 505. Thus there are large number of general selected on relaxed standards.


31. OBC Cut off will be higher than general in 2007 exam
In 2007 examination, in the first phase results, we know that last rank of general is 505 and last rank of OBC is 540. The respective cut off marks are around 1227 and 1215.

When the 2nd phase of results will be announced another 96 are going to be selected. Due to rule 16(4), it is possible that around 15 OBC,SC candidates may come out of this 96. That makes the absolute figure for exclusively general around 80 candidates.

As we know, there are around 4 to 5 candidates having same mark, when the 2nd phase results will be out, reduce the OBC cut off by 4 (16/4), which comes to 1215-4= 1211. But general cut off will reduce by 80/4= 20 marks. So final general cut off will be around 1227-20= 1207.

Thus the general cut off is going to be around 1207 whereas OBC cut off will be around 1211. Thus OBC cut would be 04 marks higher than general cut off. Thus the action of UPSC resulted in reservation for General in civil services examination.


32. Solution Suggested
2005 year Civil Services Examination results should be scrapped and fresh list has to be prepared in consonance with verdicts of Anurag Patel and Ritesh Sah as directed by Madras bench CAT as well as Madras High Court so as to enable more number of election of OBC/SC/ST whose numbers were compromised in the existing results. Simultaneously. New rule 16(2) should be scrapped. For the 2007 examination results, all 96 candidates who were removed from selection should be reinstated.

There are enough of judgments which have clarified the issue. The Govt should think of implementing them in letter and spirit instead of changing the rule to undo the effect of judgments. Avoidable litigations are to be definitely avoided. The Govt should not deviate from the progressive empowerment and reservation should be inclusive.
Our Prayer:
The net result of action of UPSC and DoPT results in deprivinf reserved candidates from availing reservation. It thus resulted in injustices to reserved candidates by preventing them from competing in Open Competition. Thus, the reservation policy of the Govt stands undermined due to action of UPSC and DoPT in case of Civil Services Examination.