R. Ganesan, Member (A)

1. The applicants in the above O.As. who are candidates for the Civil Service Examination, 2005, have sought the following reliefs:

O.A. 690/2006

1. To declare Rule 16(2) of the examination rules issued by the 1st respondent for the Civil Services Examination, 2005 vide Notification No. 13018/8/2004 AIS(I) dated 4.12.2004 as unconstitutional, null and void and to consequently direct the respondents to make allocation to various services on the basis of the Civil Services Examination, 2005 by treating 31 Other Backward Category (O.B.C) candidates, who were selected on merit, as General Category candidates.

2. To consequently re-work the allocation in respect of remaining Other Backward Category (O.B.C.) candidates and allocate the applicant herein to any higher preferred service on the basis of the choice given by the applicant and pass such further or other orders as may be deemed fit and proper in the facts and circumstances of the case and thus render justice.

O.A. 775/2006

1. To direct the respondents to make allocation to various services on the basis of the Civil Services Examination, 2005 by treating 31 Other Backward Category (O.B.C) candidates, who were selected on merit, as General Category candidates.

2. To consequently re-work the allocation in respect of remaining Other Backward Category (O.B.C.) candidates and allocate the applicant herein to any higher preferred service on the basis of the choice given by the applicant and pass such further or other orders as may be deemed fit and proper in the facts and circumstances of the case and thus render justice.

2. The applicant in O.A. 690/2006 has filed a Contempt Petition C.A. 20/2007 on the ground that the interim relief granted on 20.9.2006 and extended periodically has not been honoured by the respondents in releasing the consolidated reserve list vide Press Note dated 3.4.2007 by the second respondent on the instructions of the first respondent.

3. The private respondents in O.A. 690/2006 have filed M.A. 273/2007 and the official respondents also have sought vacation of interim order.

4. As the subject matter of these two O.As. and other connected applications are interlinked, all these are disposed of by a common order.

5. The applicants in the above O.As. have contended that they had appeared for the Civil Services Examination, 2005. The applicant in O.A. 690/2006 has been allotted the service of the RPF (Group A) and the applicant in O.A. 775/2006 has been allotted the Indian Railway Traffic Service (Group A) on the basis of the results of the said Examination. They stated that persons belonging to Other Backward Classes (OBC-for short) who obtained higher ranking on merit should not be adjusted against OBC vacancies but should be adjusted on their own merit. If this had been done, the applicants who are OBCs would get better services. The applicant in OA.690/2006 ranked 351 and the applicant in O.A. 775/2006 ranked 330, out of 425 successful candidates. They obtained ranks 112 and 96 respectively from among the 117 OBCs declared successful on 8.5.2006. According to them, there are-210-general candidates, 66-SC and 32-ST in addition to 117-OBCs in the 425 candidates who succeeded.

6.The applicants submitted that out of 117 OBCs selected, 31 were selected on their own merit and obtained employment of their choice and therefore, they should be declared as general category candidates. If these 31 candidates who were illegally adjusted against OBC category were considered as general category candidates, 31 more OBCs would have been selected and the applicants would have moved up 31 places in the list of OBCs. Thus the applicants would have got better service like the IPS or IRS. The Honble Supreme Court in a recent decision in Union of India and Ors. v. Satya Prakash and Ors. , has taken the view that a reserved candidate who is selected on merit, cannot be adjusted against reserved category but would get adjusted only against general category. They gave the rank-wise and community wise break up of total selection as follows:

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Rank Range General OBC SC ST Total

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1-100 83 15 1 1 100

101-200 73 22 3 12 100

201-300 48 35 12 5 100

301-400 2 44 46 8 100

401-425 4 1 4 16 25

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Total 210 117 66 32 425

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7. The applicant in O.A. 690/2006 has taken the following grounds:

(a) This Tribunal in O.A. 1074/98 had held that reserved category candidates should be adjusted against general category after selection on merit among the general category candidates. The UPSC (respondent No. 2 herein) has changed the modalities from 2002 onwards and in respect of the 31 positions of OBC, the UPSC had passed instructions to the effect that 32 vacancies have been added to the total number of vacancies, taking the same to 457 and if no claim comes from any quarter when these vacancies are treated as General Candidate Reserved list and are distributed among various categories according to the reservation policy.

(b) The applicant further submitted that the impugned Rule 16(2) of the Civil Services Examination rules for the year 2005 is unconstitutional, null and void and it is In violation of Articles 14 and 16 of the Constitution of India. This rule is in conflict with the law laid down by the Honble Supreme Court in R.K. Sabharwals case , wherein it has been held that reserved category candidates coming on their own merit cannot be adjusted against reserved vacancies. This has been consistently followed by the Honble Supreme Court in Ritesh Shah v. Dr. Y.L. Yamuna , Anurag Patel v. UPSC and more recently in Union of India v. Satya Prakash . The rules for examination framed prior to 2002 did not contain similar to Rule 16(2) but came to be introduced only after the decision of the Delhi High Court in Satya Prakashs case which later has been confirmed by the Honble Apex Court. The impugned rule has been introduced with intent to overrule/overwrite the law laid down by the Honble Apex Court in the above referred decisions.

8. The applicant in O.A. 775/2006 has also questioned the action of the respondents on the ground of not fulfilling the constitutional requirement of treating the reserved OBC candidates coming on merit as merit candidates and considering them as OBC is illegal and also relied on the orders of this Tribunal in O.A. 1074/98 in this regard. Hence the applicants have filed the O.As.

9. The first respondent has filed a reply denying the averments made in the O.A. He has stated that the applicant was initially informed about allocation of RPF to him. He has made application on the basis of that allocation itself. The applicant was informed that he has been provisionally allocated to posts of Assistant Security Officer in Railway Protection Force, Group A on the basis of his rank in the merit list, eligibility, preference for services expressed by him, availability of vacancy and medical fitness. In Para 2 of the same letter, it was clarified that some of the candidates above him in the merit list are yet to be settled and he may allocated to a service for which he has expressed higher preference. It was further clarified to him that he will be confirmed about his final allocation to service as soon as it is possible to do so. Later on the applicant has been upgraded to Indian Defence Accounts Service (IDAS) and informed accordingly. His dossiers have been forwarded to the Cadre Controlling Authority for issuing offer of appointment etc.,. Further the contention of the applicant that candidates belonging to OBC, who obtained higher ranking on merit should not be adjusted against OBC vacancies is against Rule 16(2) of Civil Service Examination Rules, which reads as follows:

Rule 16(2): While making service allocation, the candidates belonging to the Scheduled Castes, the Scheduled Tribes or Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies by the Govt. if by this process they get a service of higher choice in the order of their preference.

10.The respondent added that the judgment of the Honble Supreme Court in Union of India and Anr. v. Satya Prakash (supra) was passed with reference to rules existing prior to Civil Service Examination 2002. The Rules for Civil Service Examination were amended in 2002 and the new Rule 16 includes 16(1) to 16(5) with Rule 16(2) dealing with allocation of service. The candidates belonging to SC/ST/OBC, who qualify at general standards, are ordinarily allotted against the general seats. However, they are allotted against the reserve seats, if by this process, they would get a service of higher choice in order of their preference. This is done to avoid a situation in which such candidates are placed in a disadvantageous position vis-a-vis other reserved candidates of their community who qualified with relaxed standards. If service allocation is not done this way, then it may lead to a situation in which a candidate belonging to SC/ST/OBC, who qualifies at general standards and is higher in rank as compared to another reserved candidate, does not get allocated to a service which is higher preference, for he get considered against general seat along with other general candidates, even while a candidate of reserved category of lower rank is able to get the same service under the reserved seats.

11. Further, if a candidate has taken any of the concessions or relaxations in the eligibility or the selection criteria at any stage of examination, then he is not treated by the UPSC as having qualified at general standards, not withstanding his rank in the final result. Such candidate is allotted a service only against the reserved seats. The reason is that but for such relaxation/concession the candidate would not have been eligible to appear or able to finally qualify in the examination. The service allocation to the applicant and other candidates has been done strictly as per Rule 16 of the Civil Services Examination. The contentions of the applicant are therefore, misleading, devoid of merit and against rules. He further contended that the applicant approached the Tribunal even before service allocation was decided by the respondent. Hence the reliefs sought by him is devoid of merit and the O.A. has to be dismissed.

12. The official respondent No. 2 namely UPSC, has also not filed any separate reply. The learned Counsel for the UPSC stated that he is adopting the same reply as filed by the first respondent in O.A. 690/2006.

13. Three candidates for the same examination have also impleaded themselves as party respondents in O.A. 690/2006 and they have separately sought vacation of the interim order passed on 20.9.2006 as 32 vacancies till remained, unfilled affecting their interests.

14. The first respondent has filed another reply in the context of the amended O.A. stating that the applicant after recruitment process, is now estopped from challenging the very rules on seeing the results of the examination and failing to get a service of his choice and referred to the decision in University of Cochin v. N.S. Kanjoonjamma , of the Honble Supreme Court which held as follows:

This candidate under the "Doctrine of estoppal" is debarred from challenging his service allocation.

15. The respondent added that the Civil Service Examination rules cannot be challenged as per reported case in , in the case of Mallikarjuna Rao and Ors. v. State of A.P. wherein it has been held that "it is neither legal nor proper for the High Courts or the Administrative Tribunal, to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under Constitution." The Courts cannot assume itself a supervisory role over the rule making power of the executive. Further, Civil Services Examination rules are not violative of the basic structure of the Constitution and hence the Court cannot interfere with rules so framed by the Government. The ratio of the judgment of Supreme Court in Union of India v. Satya Prakash will not be acceptable to his case as Civil Services Examination rules stands amended suitably. As per the reported case of Ajay Kumar and Ors. v. Kuldeep Singh and Ors. 1995 SCC 373-374 and 1995 Suppl. (1) SCC 179, all selected candidates are necessary parties in any proceedings challenging the selection. The Court in the said case observed, "The High Court was not justified in hearing the writ petition in absence of settled candidates." Therefore interim order was vacated. Further, it has been held in the case of Bhagawathi and Ors. v. Subordinate Service Selection Board in 1995 Suppl. (2) SCC 663 and 1995 (6) SLR 562 that "it is settled proposition of law that no order to the detriment of any person can be passed without hearing him."

16. The respondents also denied that Rule 16(2) has been introduced to overrule/override the law laid down by the Apex Court. In the case of Mallikarjuna Rao v. State of A.P. (supra) and Tata Cellular v. UOI JT 1994 (4) SC 532 , the Honble Supreme Court has held as follows:

While exercising power of judicial review of administrative action, the Court is not an Appellate Authority. The Constitution does not permit the Court to direct or advise the executive in the matters of policy or to sermonize any matter which under the Constitution lies within the sphere of legislature or executive. The High Courts or the Administrative Tribunals cannot issue a mandate to State Governments to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executives under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner.

17. The first respondent has not filed any reply in O.A. 775/2006 and in view of the fact that the issues and the grounds involved in the O.As. are the same, the reply of the respondents in O.A. 690/2006 is adopted for this O.A.

18. The applicant in O.A. 690/2006 has filed a rejoinder reiterating the averments made in the O.A. He added that the contention of the respondents that the O.A. has become infrunctuous pursuant to the upgradation of his service from RPF to DAS is baseless and untenable. This upgradation to IDAS is a routine one and occurred due to vacation of seats by some of medically unfit candidates or similar such reasons. It has no correlation with the contention of the petitioner. In fact, many candidates have been upgraded along with him and this has no relation with the facts of the case. He was aware at the time of filing the O.A. that he will be subsequently upgraded. Here the issue is about the action of the respondent in allotting him a service based on present modalities following under one garb or other in which OBCs even when selected through merit are pushed down to OBC quota only. No OBC candidate is allowed to compete in unreserved open merit quota. Unreserved seats are now exclusively reserved for general community.

19. The applicant also questioned the new Rule 16(2) brought out after the judgment of the Honble Apex Court in Satya Prakasli case as one jeopardising constitutional provisions on reservation. In the 2005 Civil Services Examination the result of which were announced during May 2006, there were 425 candidates recommended. The break up was:

210 - unreserved

117 - OBC

66 - SC

32 - ST

31 OBCs and 01 SC passed the exam, on Open Merit Standards without availing any relaxation/concession. The respondent reckoned these 31 OBCs part of total number of OBCs namely 117. The unreserved list of 210 is not inclusive of these 31 OBCs and 01 SC. All 210 seats were filled by all those belonging to General quota making it a communal reservation for General category. The respondent takes recourse to Rule 16(2) for doing this. The respondents did not prepare any Open Merit List and instead they only prepared General list, OBC list, SC list and ST list. General list consisted only General candidates. Even a General candidate with 290 plus rank is accommodated part of this general list whereas in normal circumstances, the last rank in Open Merit List (if prepared) should not be more than 223 to 230 if we take top 50.5% of total 457 vacancy.

20. The applicant further submitted that 27% reservation to OBC is a minimum and those OBCs who fall within the open merit list cut off mark are in addition to 27% and must be considered part of unreserved. But the DOPT has made a separate list for OBC and placed all these 31 in it though these 31 were selected on open merit standards. He stressed that all these 31 candidates did not avail any age, number of attempts, cut off mark or relaxations. Had proper reservation rules been followed, they would have been counted against unreserved vacancies.

21. According to the applicant, by resorting to Rule 16(2), the DOP&T (respondent No. 1) deprived 31 OBCs to climb the ladder. Instead of recommending 148 = (117+31) OBC candidates, the UPSC in association with DOP&T recommended only 117 and deprived 31 OBCs from recommendation. The applicant contended that additional 31 OBC after last rank of 117th OBC candidate should have been recommended but in reality were not. DOP&T and UPSC prevented selection of 31 OBC candidates by taking recourse to Rule 16(2) which is arbitrary. On the other side, UPSC recommended 210 General Candidates under the Unreserved category instead of their legitimate share of 178.

22. The allocation process followed by the respondents is contrary and opposed to the law laid down by the Apex Court in Anurag Patel v. Uttar Pradesh Public Service Commission (UPPSC), (supra). The Apex Court clarified on State service allocation, the UPSC though on recommendation stage counted General merit listed OBCs in addition to reserved OBC (27%), but while allocating services, higher ranked OBCs under the General standard were put to a disadvantaged position compared to a OBC who got selected under relaxed standards. To illustrate, say 13th ranked OBC finding himself in open merit was allotted Sales Tax Officer II, whereas 97th ranked OBC who got selected under relaxed standards was appointed as Deputy Collector. This modality was struck down by this Honble Court which held that "a list of all selected OBC candidates shall be prepared separately including those selected in the general category and their appointments to the posts shall be made strictly in accordance with merit as per the list and preference of a person higher in the select list will be seen first and appointment given accordingly, while preference of a person lower in the list will be seen later. We do not think any error or illegality in the direction issued by the Division Bench of the High Court.

23. In Union of India v. Satya Prakash and Ors. (supra), the Honble Apex Court held that a reserved candidate who is selected on merit cannot be adjusted against reserved category but would get adjusted only against general category even if he gets higher preferred service like IAS. The said judgment negates the extant procedure followed by DOP&T. This is further substantiated by an earlier order of the Constitutional Bench in the case of R.K. Sabharwal v. State of Punjab (supra).

24. Further the applicant submitted that in the light of Anurag Patel and Satya Prakash judgments, what DOP&T should have done is that the 210 Unreserved should have consisted of reserved candidates selected on merit standards. Thus, 31 OBC and 01 SC should have been part of this 210 Unreserved. Then 117 separate OBC list should have been prepared. To avoid higher service to lower rank OBCs, taking recourse to ratio of Anurag Patel case, DOP&T should have clubbed 31 Unreserved OBCs and 117 OBC, and should have prepared a list as per rank. This list ought to have consisted 142 candidates, so that, the person higher in the list would get higher services list IAS, IPS and so on. In the guise of giving better service DOP&T removed merit OBC candidates from the Unreserved list and instead placed some other General candidates in their place and bestowed them with services which would originally fall on those vacant slots left out by OBCs. This action of DOP&T resulted in limiting the ceiling of OBCs to 27% i.e., only 117 were selected. This has affected the legitimate right of the petitioner to get a higher rank.

25. The applicant clarified that if 457 vacancies were reckoned in one go, then approximate merit list which would include roughly top 50.5% should have consisted upto 228 or 229 seats. In that circumstances, the petitioner contends that around 45 OBCs fall within rank 229. Out of this 45, a few would have availed relaxation and those remaining X number of OBC candidates should be in addition to 27% reservation available for OBCs. Thus he notionally calculates that 27% of 457 will be around 123. So the legitimate reserved OBC share should have been 123+X. Thus in the present circumstance as discussed above, the petitioner is entitled to move up in the rank by more than 31 ranks and not jus by 31 ranks. If the present allocation procedure is allowed under Rules 16(2) to 16(5), it will distort selections and service allocation in favour of General. The present/extant mode of selection as envisaged under these rules to exam, will amount to limiting all OBCs within 27% reserved OBCs. The petitioner belonging to OBC community is thus getting affected by at least 31 ranks, thus coming in the way of his higher service such as IPS or IRS or IRS.

26. The applicant, relying on the order of the Principal Bench of the Central Administrative Tribunal dated 3.3.2007 in O.A. 216/2003 in Rajesh Kumar Sah v. Union of India (DOP&T), stated that when pre 2002 examination could be validated from various grades, DOP&T cannot take shelter under amended rules which favours General community, prohibits OBC, SC, ST to be counted under General merit and provides for entry of additional general candidates in the form of second list which is violative of catena of judgments pronounced by various Courts.

27. We have heard Mr. Vijay Narain, learned Senior Counsel appearing for the applicant, Mr. V.T. Gopalan, learned Additional Solicitor General appearing for respondent No. 1, Mr. K. Sridhar, for respondent No. 2 and Mr. Selvaraj, learned Senior Counsel appearing for private respondents Nos. 3 to 5.

28. The learned Senior Counsel Mr. Vijay Narain leading the arguments challenged the validity of the new Rule 16(2), which according to him, is against the settled law relating to consideration of candidates coming on merit from among reserved community to be treated as merit candidates and recruiting for reserved vacancies only those of reserved category by applying relaxed standards. According to him, 31 OBC candidates have been selected by the UPSC on merit and therefore, the final merit list of successful candidates released by the UPSC should contain additional 31 names by treating the OBCs who were recruited on merit as general candidates. The respondents while applying the new Rule 16(2) has denied this treatment to the OBC candidates who have been selected on merit and because of this process, OBC candidates have been taken less in number. Had the respondents acted in accordance with law settled in recruiting reserved candidates on merit as general candidates only and gone in for additional reserved candidates for reserved vacancies, the applicants herein would have moved up in the OBC list with more OBC candidates in the list.

29. In the process, they would have got a better vacancy position than what they have got. In this context, the learned Senior Counsel also relied on Satya Prakash case and submitted that it has been clearly held by the Honble Apex Court that OBC candidate who has been recommended by the Commission without resorting to relaxated standards (i.e. on merit), shall not be adjusted against vacancies reserved for SC, ST and OBC. This is the mandate of proviso to Sub-rule 2 of Rule 16. He also relied on the decision of the Honble Apex Court in Anurag Patels case wherein their Lordships had directed that the slots vacated by those OBCs selected on merit but who moved to reserved vacancy upon exercise of preference, should be preserved for other OBCs coming under the relaxed standards.

30. The learned Counsel stated that transfer of 31 services from OBC coming on own merit to purely general, because 31 OBCs on own merit left their position along with 31 services which they were otherwise entitled to, when they moved to reserved OBC services to acquire a higher service. The vacated services were filled up by purely general candidates which is against the ratio laid down by the Honble Apex Court in Anurag Patels case.

31. The learned Senior Counsel added that Rule 16(2) is unconstitutional keeping in view the ratio laid down in Ritish Sah case in MBBS Admission as under:

In other words, while a reserved category candidate entitled to admission on the basis of merit will have the option of taking admission in the college where a specified number of seats have been kept reserved for served category but while computing reservation he will be deemed to have been admitted as a open category and not as reserved category.

32. The learned Senior Counsel relying on the decision of the Honble Apex Court in Raj Kumar and Ors. v. Shakti Raj and Ors. , contended that "where the entire procedure is also obviously illegal", "the principle of estoppel by conduct or acquissance has no application to the facts in this case."

33. In this context, he also cited another decision of Jabalpur Bench of this Tribunal in O.A. 71/2003 and 72/2003 wherein it has been ordered that the contention that a candidate having participated in the selection process and failed, later cannot challenge the selection, is not sustainable when the selected procedure adopted was illegal.

34. He also relied on the Honble Apex Court order in Indian Express Newspaper v. Union of India and Ors. etc. , wherein, their Lordships have observed "a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by the statute passed by the competent legislature". In Supreme Court Employees Welfare Associations v. Union of India and Anr. the Honble Apex Court has clearly laid down the grounds under which the subordinate legislation can be questioned especially when it is repugnant to the general principles of laws of the land and arbitrary. Therefore, the applicants are well within their right to challenge Rule 16(2) which defies settled law of reservation. Further the learned senior Counsel contended that the impugned rule is issued by the first respondent in exercise of powers conferred under Art. 73 of the Constitution (ref: 1994(28) ATC 640: Dias Ermelinda Maria Jose v. Union of India) which cannot be equated to the parliamentary legislation and hence the applicants questioning the legality of the same, is in order.

35. With regard to the contention of the respondents that the applicant has not impleaded the necessary parties, the learned Senior Counsel relied on the following decisions:

1. G.M., South Central Railway v. AVR Siddanthi and Ors. .

2. A. Janardana v. Union of India , to justify that having impleaded the parties who were responsible for making the impugned order as necessary parties, it is not necessary to have all those who are likely to be affected as a result of readjustment of the applicants plea, as at the most they would only be proper parties and not necessary parties and their non-joinder could not be fatal to the O.A. and on that ground, the petition cannot fail.

36. The learned Additional Solicitor General Mr. V.T. Gopalan appearing for the first respondent vehemently argued against the applicants contentions and also on other grourids, to seek their reliefs especially when the rule so challenged has been framed under Article 309 of the Constitution and it is not an executive order per se. Relying on the order of the Honble Apex Court in State of U.P. and Ors. v. Sukhpal Singh Bal (2005) 7 SCC 617, he contended that "merely because a statute comes up for examination anf some arguable point is raised, the legislative should not be put under a cloud."

37. Therefore, the impugned Rule 16(2) of Civil Service Examination cannot be put on hold, as it has happened by the interim order of this Tribunal nor can it be questioned by the applicants by claiming that they are affected adversely in application of the said Rule. He stated that until a law is declared unconstitutional, the same cannot be stayed except in grave circumstances (AIR 2000 SC 2047 ). In this context, he also cited the decision of the Honble Apex Court in Supreme Court Employees Welfare Association v. Union of India and Ors. , to indicate the context in which such a challenge to subordinate legislation is admissible. Further, in the light of the decision of the Honble Apex Court in Indira Sawhney, 1992 (Suppl.) 3 SCC 210, he stated that even the executive order has the same force as legislation as in the case the reservation made by the Central Government in favour of Scheduled Castes/Scheduled Tribes and State Governments in favour of all backwards class, which have been effected by executive instructions or by rules made in Article 309 of the Constitution.

38. The learned Additional Solicitor General questioned the applicants plea in the OA wherein he challenged the impugned Rule 16(2) claiming to be repugnant to the decision of the Honble Apex Court in Satya Prakash case and stated that the decision in the said case cannot be relied upon by the applicant to examine the validity of the impugned Rule 16(2) which can only be challenged on its own legality and constitutional validity. On this aspect, the applicants have completely failed to raise any specific legal ground in the O.A. and as the onus of establishing illegality, if any, being on the applicants which they have failed to do so, and so, they have no reason to further assail the impugned Rule 16(2). He also cited the Honble Apex Court order in Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Limited and Anr. , wherein, their Lordships have observed that "Validity of legislation is not judged merely by affidavits filed on behalf of the State but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said". The applicants have not stated any where how Article 14 and 16 have been violated as they have not done any analyses in this regard. He submitted that the constitutional validity of an act can be challenged on two grounds namely lack of legislative competence and violation or of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions, . The grounds made out by the applicant are no where fulfilling the above criteria to question the validity of the impugned Rule 16(2). On the other hand, the applicants questioned the new Rule 16(2) based on the earlier rule, whereas the new Rules are made as a part of improvement and definitely they could be at variance with the old rules and in such situation, any contention that the new rule is not on par with the earlier one, is a self-defeating ground, the applicants have not challenged the impugned rule as being unconstitutional by specifying the legal grounds.

39. The learned Additional Solicitor General added that the Honble Apex Court in Islamic Academy of Education and Anr. v. State of Karnataka , have clearly laid down the law regarding interpretation of judgments and in the light of their observations thereon, the applicants cannot take advantage of any other interpretation by reading the same to suit their requirement and the rule should be governed by the facts and circumstances in all aspects. He added that the deponents of the affidavits filed into Court may speak for the parties and not to the Parliament and in the circumstances, "the Court is the only authentic voice which may echo (interpret) the Parliament" and hence the applicants cannot assail Rule 16(2) from their perspective alone without any legal basis. He contended that so long as the number of persons selected for OBC, SC, ST is as required under the Rules, there is no irregularity in allotment of service as per the provisions of Rules 16(2) which is meant for allocation of service giving merit higher consideration based on the wisdom of the Rule making authorities on the basis of the past experience and at this stage, the applicants cannot challenge the impugned Rule without any legal grounds to substantiate their claims as explained supra.

40. Mr. Selvaraj, learned Senior Counsel for the private respondents in O.A. 690/2006 stated that there is no illegality in Rule 16(2) as contended by the applicant, as the same, in fact, is for implementing the decision of the Honble Apex Court and as the Rule 16(2) relating to allocation of services does not deal with recruitment for which alone the principle that candidates coming on merit from the reserved community are to be treated as general candidates, will apply. Rule 16(2) in its present form ensures candidates coming from reserved community in merit getting higher rank can get better service than their counter parts from the same community getting lower rank and as basically this Rule is meant to offer better service for those coming from reserved community based on their rank in the overall merit list, the applicants have no rational ground to question the legality of Rule 16(2). He also referred to the order of the Honble Apex Court in Satya Prakash and Ritesh Sah cases and relying on these decisions, the learned Senior Counsel submitted that there has been no irregularity in the action of the respondents so far and have pressed for vacation of the interim order so that the private respondents can be allocated services in keeping view with the extant orders.

40(a) The learned Counsel for the second respondent submitted that he is adopting the reply of the first respondent as also the arguments of the learned Additional Solicitor General appearing for the first respondent.

41. Having heard the rival parties and also having perused the pleadings, the issues which arise in the O.As. relate to the Civil Service (Main) Examination, 2005 in applying reservation to SC, ST, OBC in general and in the content of these O.As. to OBCs in particular, as the applicants who are OBCs, are seeking the relief by challenging the validity of Rule 16(2) of Civil Service Examination, 2005, and its application to the result of the Civil Services Examination to ascertain that they pass the acid test of conforming to the various reservation orders of the respondents as well as the law laid down by the Honble Apex Court with regard to reservation to SC, ST, CBC.

42. The judgment of the Honble Apex Court in R.K. Sabharwals case (supra) settled the law regarding recruitment in Government services by prescribing the following salient features in Para 4 of the said judgment which is as under:

On the other hand the reserved 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 when taken into consideration for working out the percentage of reservation.

Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned Counsel and reject the same.

(Emphasis added)

43. While the reservation for SC, ST and OBC being at 15%, 7-1/2% and 27% respectively, the number actually recruited by the respondents should not only conform to this percentage as the first criterion but should also ensure that the law laid down by the Honble Supreme Court in R.K. Sabharwals case cited supra, namely the reserved candidate coming on merit should not be adjusted against reserved vacancies but they should be kept against general vacancies and an equal number of reserved candidates should be selected from that reserved category by applying relaxation to them and hence the result has to be announced without taking into account the candidates from the reserved community selected on merits for the purpose of arriving at the requisite percentage meant for SC, ST and OBC. We propose to examine the compliance to the above requirement in the coming paras.

44. While announcing the results, the fourth respondent had released a list of 425 successful candidates with break up as under:

General - 210

OBC - 117

SC - 57

ST - 41

Total - 725

45. In Para 2 of the said notification releasing the result of Civil Services (Main) Examination, 2005, the number of vacancies reported by the Government for services are given as under:

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Category/Cadre IAS IFS IPS Gr.A Gr.B Total

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General 45 10 51 116 20 242

OBC 22 06 27 58 4 117

SC 14 2 8 32 1 57

ST 6 2 17 15 1 41

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Total 87 20 103 221 26 457

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46. Thus, as against the total requirement of 457 posts, the second respondent has released only the names of 425 by keeping the reserved list of 64 candidates in keeping with the Rules 16(4) and (5) of Civil Services Examination, Rules, 2005 with 32-general, 31-OBC and 1-SC to be released subsequently. The community-wise break up of 425 candidates initially released by the second respondent shows the position as under:

_________________________________________________________________________________

Community General OBC SC ST Total

_________________________________________________________________________________

Result in 1st instance on 8th 210 117 66 32 425

May 2006

Percentage of recruitment 49.41 27.52 15.53 7.53 99.99(100)

_________________________________________________________________________________

47. Based on the merit list and also as admitted by the respondents in his reply, 31 OBC candidates have been selected on merit. While the percentage of community-wise break up of selected candidates cited supra shows that the OBC selection is for 117 which is 27.53% and general 210 which is 49.41 % thus explicitely showing that 210 out of 425 are all general candidates themselves and the 31 merit based OBC who should have been included in the general list have been brought only under 117 OBCs forming 27.52% which meant OBCs who came on merit have been treated as reserved for the purpose of recruitment to Civil Services while as per extant order and law, they are to be treated as general. This action of the respondents clearly goes against the decision of the Honble Apex Court in R.K. Sabharwals was whereby reserved candidate coming on merit should be adjusted against general quota and cannot be set against reserved vacancies. Assuming for the sake of argument, the respondents can take the plea that this result of May 2006 was only the first stage of selection and in the second stage they will set right the imbalance amongst the various communities, by making recruitment to the requisite percentage provided for each category, duly considering the reserved candidates coming on merit as general, the subsequent step taken by the respondents by releasing the second list dated 3.4.2007 does not support this assumption either, as can be seen from the facts as under:

_____________________________________________________________________________

Community General OBC SC ST Total

_____________________________________________________________________________

Result in 1st instance on 8th 210 117 66 32 425

May 2006

Seats filled up by way of 27 5 nil nil 32

second list on 3rd April, 2007

Final figure after release of 237 122 66 32 457

second list

_____________________________________________________________________________

Percent of reservation to total 50.5% 27% 15% 7.5% 100%

_____________________________________________________________________________

From the above date, once again it is clear that from the 237 general candidates and 122 OBC which themselves form 50.5% and 27% respectively out of the total successful candidates of 457 with the admitted position of 31 OBC candidates having successfully selected under merit, they should have been treated as general candidates and the OBC number should have gone up to that extent in addition to the 122 which is meant for the reservation of 27% out of 457 successful candidates and this has not happened. Instead of adjusting all the merit listed OBC in general, by treating them as OBC, more general candidates have been selected and less from OBC as seen from the following data:

______________________________________________________________________________

General OBC SC ST Total

______________________________________________________________________________

Number kept in second list 32 31 01 nil 64

Selected from second list on 27 05 nil nil 32

______________________________________________________________________________

48. The replies of the respondent have failed to look into the specific points raised by the applicant in O.A. as well as rejoinder in O.A. 690/2006. The respondents denied that Rule 16(2) of Civil Services Examination, 2005, is in conflict with the law laid down by the Honble Supreme Court in R.K. Sabharwals case but failed to clarify that they are correct only so long as the Rule 16(2) which is meant for allocation of Services is concerned after the recruitment action is complete. However, the manner in which Rule 16(2) is followed up by Rules 16(3) to 16(5) with a second reserve list, as done in the result of 2005 exams, there is reason to doubt that the respondents have not given effect to R.K. Sabharwals order properly.

49. Under these circumstances, the action of the respondents in partially releasing the first list in May 2006 and subsequently the second list in April, 2007 has in both the cases, established that they have not conformed to the twin criteria of recruitment laid down by them in percentage of quota for SC/ST/OBC and also in R.K. Sabharwals decision to great the SC/ST/OBC coming on merit are to be treated as General and not to be adjusted against reservation quota for the respective category. Therefore, the applicants have clearly made out their case that the respondents have violated the legal provisions of recruitment and hence they are well within their right to question the recruitment made by the respondents justifying intervention by the Tribunal and in this context, the Honble Apex Court has already laid down the scope of judicial action in such a context in Supreme Court Employees Welfare Associationy. Union of India and others (supra) and which has been relied upon by both the applicants and the respondents. Para 107 of the said judgment set out the parameter for judicial review as under:

107. The true position thus appears to be that, just as in the case of an administrative action, so also in the case of subordinate legislation (whether made directly under the Constitution or a statute), its validity is open to question if it is ultra vires the Constitution or the Governing Act or repugnant to the general principles of the laws of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.

(Emphasis added)

50. In view f the questionable action of the respondents as noticed in pre para, we also agree with the applicants regarding their other contentions for their legal right to question the impugned order even though they have participated in the selection process because of the apparent illegality noticed in the results announced by the respondents in not conforming to the twin legal criteria of recruitment viz., percentage and reserved merit candidate to be in General quota. We also notice that the applicants having filed the O.A. by impleading the necessary parties without impleading the other candidates who are affected and who are otherwise proper parties, the O.As. cannot be treated as not maintainable as made out by the respondents in keeping with the Honble Apex Court orders in General Manager, Southern Railway v. AVR Sidhanthi (supra) which is as under:

In such proceedings the necessary parties to be impleaded are those against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixing seniority of the petitioners vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the re-adjustment of the petitioners seniority in accordance, with the principles laid down in the Boards decision of October 16,1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition.

(Emphasis added)

Therefore, we consider that the applicants have made out a case for our interference from all angles and hence we proceed to find out the extent to which the respondents have erred in the recruitment process and whether the impugned Rule 16(2) comes in the way of correct recruitment and if yes, to what extent Rule 16(2) and other Rules 16(3) to 16(5) affect recruitment in accordance with extant orders and law.

51. In Union of India and Anr. v. Satya Prakash and Ors. (supra), the Honble Apex Court has dealt with an idential matter regarding recruitment of Civil Service Examination, 1996. The following excerps from the above order is relevant:

______________________________________________________________________________

Category/Cadre IAS IFS IPS Ur.A Gr.B Total

______________________________________________________________________________

General 38 07 48 157 133 383

OBC 20 03 25 72 54 174

SC 12 03 15 56 39 125

ST 06 01 08 23 19 57

______________________________________________________________________________

Total 76 14 96 308 245 739

______________________________________________________________________________

3. The chart shows that against the OBC category total 174 candidates were recommended for 174 vacancies. In these appeals we are concerned only with OBC category candidates. From the OBC category, three candidates were included in the general merit list. 36 OBC category candidates were also included in the general merit list on the recommendation of the Commission. However, a preference was given from the relaxed quota, reserved for the OBC category candidates. Despite 174 vacancies earmarked for the OBC category candidates, and the candidates were recommended for 174 vacancies, only 138 OBC category candidates were provided with the job and the rest 36 OBC category candidates (respondents) had been denied job. By way of illustration, a candidate whose name figured at SI. No. 620 in the merit list had been provided with a job but the respondent herein, who was at SI. No. 606 in the merit list had been denied the job.

8. The sole question that revolves around for determination is, as to whether those OBC candidates, who were selected on merit and were placed in the list of open category candidates could still for the purpose of placement (preference) be considered to be OBC candidates thereby exhausting the quota reserved for relaxed OBC candidates from allocation of service.

9. In our view, the present controversy is no more res integra in view of the judgment of the Honble Apex Court in Indra Sawhney v. Union of India 1992 Supp. (3) SCC 217. Their Lordships held as follows:

811. 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 filed 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.

10. In the case of R.K. Sabharwal v. State of Punjab , a Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-a-vis reservation and held as under:

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 reserved 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-reserve 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. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State if not adequately represented in the services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise make 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. As mentioned above, the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.

13. It will be noticed that the decision in Ritesh R. Sah (supra) was rendered on 15th February, 1996. CSE Rules, 1996 were notified on 14. 12.1996. That is the fall out of the decision of this Court in Ritesh R. Sah (supra).

16.(i) After interview, the candidates will be arranged by the Commission in the order of merit as disclosed by the aggregate marks finally awarded to each candidate in the Main Examination (written examination as well as interview) and in that order so many candidates as are found by the Commission to be qualified at the examination shall be recommended for appointment up to the number of unreserved vacancies decided to be filled on the result of the examination.

(ii) The candidates belonging to any of the Scheduled Castes or the Scheduled Tribes or the other Backward Classes may to the extent of the number of vacancies reserved for the Scheduled Castes and the Scheduled Tribes and the Other Backward Classes be recommended by the Commission by a relaxed standard, subject to the fitness of these candidates for selection to the services.

Provided that the candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes 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 Scheduled Castes, the Scheduled Tribes and the Other Backward Classes.

15. Note appended to Rule 2 is crystal clear and unambiguous. It shows that if a candidate is not allotted to any one of the services/posts for which he/she has indicated preference, he/she shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preferences.

16. Further, proviso to Sub-rule (2) of Rule 16 makes it further clear in unambiguous terms that the candidates belonging to the Scheduled Castes, the Scheduled Tribes or the Other Backward Classes who have been recommended by the Commission without resorting to the relaxed standard (i.e. on merits), referred to in this Sub-rule, shall not be adjusted against the vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes.

17. This position has been made crystal clear in Ritesh R. Sah (supra) as referred to above that while a reserved category candidate entitled to admission on the basis of his merit, will have the option (preference) of taking admission in the college where 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 an open category candidate and not as a reserved category candidate.

18. By way of illustration, 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. For that, he may opt a preference from the reserved category. But simply because he opted a preference from the reserved category does not exhaust quota of OBC category candidate 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. This is the mandate of proviso to Sub-rule (2) of Rule 16.

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.

20. If a candidate of Scheduled Caste, Scheduled Tribe and Other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she can opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preference.

(Emphasis added)

52. The judgment in Satya Prakash case dated 5.4.2006 cited supra has finally laid down that the reserved candidate coming on merit cannot be adjusted against reserved quota for recruitment and so long as the respondents, allowed this, the recruitment is not vitiated. Before proceeding further, Rule 16(2) that was in existence prior to 2002 and after the amendment is placed as follows:

_______________________________________________________________________________

Pre-2002 Rule 16(2) proviso Rule 16(2) after amendment

_______________________________________________________________________________

Provided that candidates belonging while making service allocation, the

to SC, ST and OBCs who have been candidate belonging to the SC, ST or

recommended by the Commission OBCs recommended against unreserved

without resorting to any of the rela- vacancies may be adjusted against reser-

xations/conccssions in the eligibility ved vacancies by the Govt., if by this

criteria, at any stage of the exami- process they get a service of higher

nation, shall not be adjusted against choice in the order of their preference.

vacancies reserved for SC, ST and

OBCs. (Emphasis added)

________________________________________________________________________________

53. The existing Rule 16(2) which starts with the "while making service allocation" is fully in order so long as it confines its application to allocation to successful candidates of services among 1AS, 1FS, 1PS, and Central Services etc., and therefore, the impugned Rule 16(2) can be sustained as legal to the extent its scope is limited only to allocation of service and nothing more and definitely not in relation to the recruitment of the Civil Service Examination in respect of 457 candidates as notified in Para 2 of announcement of result for the Civil Services (main) Examination, 2005. Therefore, while announcing results of the examination by the UPSC prior to making of service allocation, the twin yard stick of percentage of reservation of 15%, 7-1/2% and 27% for SC, ST and OBC respectively supported by criterion of reserved candidates coming on merit being treated as general candidates, has to be met without any let or hindrance in letter and spirit. It has been established by the applicant in O.A. 690/2006 in his various observations in this rejoinder, some of which has been cited in this order, that the respondents have failed to do so. To this extent, the recruitment is not proper and has to be set right.

54. The mistake of meeting twin criteria of recruitment has arisen because of the two stage selection process followed by the respondents, with the UPSC releasing a list of 425 candidates in the first phase and the remaining 32 in the second phase. Apparently, this has created not only misapprehension in the minds of the applicants but also resulted in not following the twin criteria namely percentage of reservation and treating reserved candidates coming on merit as general. In Anurag Patel v. Union of India (supra), the Honble Apex Court has given the road map to avoid such a pit fall and ensure strict observation of the twin criteria in recruitment as under:

4. The authorities should have compared the candidates who are to be appointed on general merit as also candidates who are to be appointed as against the reserved vacancies and while making appointments the inter demerit of the reserved candidates should have been considered and they must have been given the option treating each service separately. As this exercise was not followed, less meritorious candidates got appointment to higher posts whereas more meritorious candidates had to be satisfied with posts of lower category.

5 ...In the instant case, as noticed earlier, out of 8 petitioners in Writ Petition No. 22753 of 1993, two of them who had secured Rank 13 and 14 in the merit list, were appointed as Sales Tax Officer II, whereas the persons who secured Rank 38, 72 and 97, rank lower to them, got appointment as Deputy Collectors and the Division Bench of the High Court held that it is a clear injustice to the persons who are more meritorious and directed that a list of all selected Backward Class candidates shall be prepared separately including those candidates selected in the general category and their appointments to the posts shall be made strictly in accordance with merit as per the select list and preference of a person higher in the select list will be seen first and appointment given accordingly, while preference of a 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.

6. If these candidates who got selection in the general category are allowed to exercise preference and then are appointed accordingly the candidates who were appointed in the reserved categories would be pushed down in their posts and the vacancies thus left by the general category candidates belonging to Backward Class could be filled up by the persons who are really appointed against the quota reserved for Backward Classes. There will not be any change in the total number of posts filled up either by the general category candidates or by the reserved category candidates.

(Emphasis added)

55. If the UPSC had followed the decision of the Honble Apex Court cited supra and released the select list in one go for all the 457 vacancies, then it would have ensured that the select list contained not only 117 OB Cs but also an additional number of OBCs to set off those OBCs who came on merit and included in the general list, thus raising the OBC candidates by this number, in additional to 117 under 27% reservation, while simultaneously the number of general candidates recruited will be less to the extent of OBCs recruited on merit and included in the general list in the results of Civil Service Examination, 2005. Once this is met, the successful candidates list will include 242 candidates in the general category which is inclusive of all those reserved category candidates coming on merit plus 117-OBC, 57-SC and 41-ST exclusively from these respective reserved categories by applying relaxed norms for them. If such a list is subjected to Rule 16(2) of Civil Service Main Examination, 2005 in present form for making service allocation only and then services are allotted based on Rule 16(2) in this context, then the announcement of recruitment result and allocation services will be both in accordance with law as per various judgments of the Honble Apex Court and in accordance with the extant orders issued by the respondent No. 1 and also in keeping with the spirit of the Rule 16(2) so that, the meritorious reserved candidates get higher preference service as compared to their lower ranked counter parts in OBC, ST, SC. In doing so, the respondents also would notice that the steps taken by them in accordance with the Rules 16(3)(4) and (5) are redundant once they issue the result of recruitment in one phase, instead of two, as they have become the primary cause for the litigation and avoidable confusion in the minds of the candidates seeking recruitment.

56. The respondents questioned the jurisdiction of the Tribunal to examine the issues in the O. A. as they were policy decisions strictly under the administrative domain. We are least inclined to interfere with the respondents sphere of activity in framing policy and the Tribunal enters only with the limited role to see whether the respondents have implemented their own policy strictly in consonance with the extant orders with regard to the alleged illegality, as made out by the applicants with concrete facts and figures in OA. 690/2006 and in rejoinder to that O.A.

57. The first respondent has issued orders on the extent of reservation of 15% for SC, 7.5% for ST and 27% for OBC and these details are common knowledge of the second respondent too. There are several orders of the Honble Supreme Court which have laid down the law relating to implementation of the quota for SC/ST/OBC. In R.K. Sabharwal v. State of Punjab the Honble Apex Court has given the method of ensuring that the given percentage of 15, 7.5 and 27 respectively for SC, ST and OBC are met while dealing with meritorious among the reserved candidates and selected on par with general candidates by absorbing them in the General quota. Thus, the scope of this Tribunal is, therefore, limited to examining the issues with reference to the respondents own orders for reservation to SC/ST/OBC as directed by the Honble Apex Court in R.K. Sabharwals case. The respondents should not mix up the issues of recruitment of SC/ ST/OBC on the above principles with allotment to various services after recruitment, because the recruitment by UPSC has to conform to the percentage of reservation for SC/ST/OBC as laid down by the Honble Apex Court in R.K. Sabharwals case. Once the select list is made ready on the above lines by the second respondent UPSC, the first respondent is free to apply Rule 16(2) which based on the ratio of the Honble Apex Court order in Ritesh R. Sah (decided on 15.2.1996) and Anurag Patel (decided on 29.9.2004) as well as Satya Prakash (decided on 5.4.2006) cases, is in order for more meritorious reserved candidates getting a better service of his choice vis-a-vis his counterpart in the same category with lesser rank. Thus, on ratio of Honble Apex Court orders cited supra and in keeping with the facts and circumstances of this case, following directions are given to the respondents:

(i) The impugned Rule 16(2) is declared as valid so long as it is confined to allocation of services and conforms to the ratio of Paras 4 to 6 of Anurag Patel order of the Honble Apex Court.

(ii) The Supplementary List issued by the second respondent to the first respondent dated 3.4.2007 is set aside. This would entail issue of a fresh supplementary result from the reserved list of 64 in such a way that adequate number of OBCs are announced in lieu of the OBCs who have come on merit and brought under general category. The respondents are directed to rework the result in such a way the select list for all the 457 candidates are announced in one lot providing for 242-general, 117-OBC, 57-SC and 41-ST and also ensure that the candidates in OBC, SC and ST who come on merit and without availing any reservation are treated as general candidates and ensure that an equal number of such reserved candidates who came of merit under general category, are recruited for OBC, SC and ST respectively and complete the select list for 457. Having done this exercise, the respondents should apply Rule 16(2) to ensure that allocation of service is in accordance with rank-cum-preference with priority given to meritorious reserved candidates for service allocation by virtue of Rule 16(2) which is as per Para 5 of Anurag Patel order. The entire exercise, as directed above, should be completed within a period of one month from the date of receipt of a copy of this order.

(iii) Applying the ratio of Anurag Patel decision of Honble Apex Court (Paras 6 and 7), if there is need for re-allocation of services, the respondents will take appropriate measures to that extent and complete this process also within two months from the date of receipt of a copy of this order.

O.As. are allowed as above.

58. The first respondent has, in his reply to the Contempt Application, stated that in keeping with the directions of this Tribunal in the interim order, no allocation of service has been made and hence there is no compempt as made out by the applicant. Under the circumstances the C.A. is closed.

59. With the rendering of the order in these O.As., the two M.As. for vacation of interim order will get disposed of. No order as to costs.