THE STATE OF TAMIL NADU & ORS. versus K. SHOBANA ETC. ETC. on 5 March 2021

[2021] 2 S.C.R.

ATHE STATE OF TAMIL NADU & ORS.

v.

K. SHOBANA ETC. ETC.

(Civil Appeal Nos. 3745-3754 of 2020)

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MARCH 05, 2021

[SANJAY KISHAN KAUL, DINESH MAHESHWARI ANDHRISHIKESH ROY, JJ.]

Tamil Nadu Government Servants (Conditions of Service) Act,C2016 – s.27(f) – Reservation for appointment – Manner of fillingup the seats – Direct recruitment – Post Graduate Assistants inChemistry – 356 posts notified wherein 117 vacancies (74 backlogand 43 current vacancies) were available for Most Backward Class(MBC) and Denotified Community (DNC) candidates – Provisionalselection list published – Meritorious candidates under the MBCDquota were appointed in the MBC/DNC quota against the backlogvacancies – Challenged by respondents, by filing writ petition forquashing of the selection list and for their appointment – Succeededbefore Single Judge – Writ appeal – Dismissed – Held: Entireconfusion has arisen due to the wrong reading of s.27 providingEfor reservation for appointment – s.27(f) merely states that if therequired number of candidates belonging to the reserved communityare not available, then the vacancies, for which selection could notbe made in the current year, should be treated as backlog vacancies– In subsequent recruitment, the backlog vacancies and the currentvacancies for the particular community must be separatelyFannounced – Direct recruitment must first accommodate the backlogvacancies and thereafter only, the current vacancies have to beaccommodated – The provision had been read by the appellants asif the backlog vacancies must be filled in by MBC/DNC categorycandidates, irrespective of the candidate’s merit/rank – Suchreservation category candidates who make it on their own meritGhave to be adjusted against the general category candidates –s.27(f) cannot be read in a manner to negate this principle – s.27deals with the reservation – It has nothing to do with the generalcandidates list/General Turn vacancies – Such candidates who havemade it on their own merit albeit, from reserved category, have notHsought the benefit of the reservation – Thus, s.27 would have nothing to do up to that point – It would apply only when the reservationprinciple begins, which is after filling up of the seats on merit –Thus, the word “first” in proviso would apply at that stage, i.e., thebacklog vacancies have to be filled in first and the current vacanciesto be filled in thereafter – At the stage when the general categoryseats are being filled, there is thus no question of any carry forwardor current vacancies for reserved category arising at all – Viewtaken by the courts below agreed with.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1.1 The judgment of the Single Judge is absolutelylucid and clear to the controversy and the conclusion. Single Judgeset forth the controversy in the first paragraph itself, i.e., whetherthe candidates who secured high marks should have been fittedin the General Turn but have been fitted in MBC/DNC Quota forthe last year, which in turn has deprived certain candidates ofselection. It has been rightly noted that the entire confusion hasarisen due to the wrong reading of provisions of Section 27 of theTamil Nadu Government Servants (Conditions of Service) Act,2016, which provides for reservation for appointment. Section27(f) merely states that if the required number of candidatesbelonging to the community which fall under reservation are notavailable, then, the vacancies, for which selection could not bemade in the current year, should be treated as backlog vacancies.In the subsequent recruitment, the backlog vacancies and thecurrent vacancies for the particular community must be separatelyannounced, and the direct recruitment must first accommodatethe backlog vacancies and thereafter only, the current vacancieshave to be accommodated. The provision had been read by theappellants as if the backlog vacancies must be filled in by MBC/DNC category candidates, irrespective of the merit of thecandidate or the rank secured by him/her. The highest mark thatwas secured was 109 and, up to 90 marks, the candidates werefitted in General Turn and thus those candidates will have to beselected under the General Turn, irrespective of their community.It is these candidates who had been fitted in the backlog vacancywhich has caused the problem. The Division Bench vide theimpugned order also opined in the same terms and agreed with AB

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Athe interpretation of Section 27 of the Act by further observingthat the proviso which contains the word “first” does not haveany relation to the offer and placement of such reserved categorycandidates, including, Most Backward Classes who attain theirposition by way of merit in the open category/General Turnvacancies. [Paras 23, 24][1177-F-H; 1178-A-D]

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1.2 This Court is in complete agreement with the view takenby the courts below as there really could not have been any cavilto the aforesaid. The principle that such of the reservationcategory candidates who make it on their own merit have to beadjusted against the general category candidates has not been inCdoubt or argued in view of the catena of judgments. Section 27(f)of the Act cannot be read in a manner to negate this very principle.It has been rightly pointed out by counsel for the respondentsthat the issue arising from seniority of filling the backlog vacanciesfirst was not even urged in the courts below and was sought to beDraised for the first time before this Court, and elaborately at that,which plea finally fizzled out, as it was conceded that there is nofactual basis for the same. [Paras 25, 26][1178-D-G]

1.3 Section 27 deals with the reservation. It has nothing todo with the general candidates list/ General Turn vacancies. SuchEof the candidates who have made it on their own merit albeit,from reserved category, have not sought the benefit of thereservation. Thus, Section 27 of the Act would have nothing todo up to that point. Section 27 would apply only when thereservation principle begins, which is after filling up of the seatson merit. Thus, the word “first” would apply at that stage, i.e.,Fthe backlog vacancies have to be filled in first and the currentvacancies to be filled in thereafter. At the stage when the generalcategory seats are being filled, there is thus no question of anycarry forward or current vacancies for reserved category arisingat all. The manner of filling up the seats has been well enunciatedGin the judgment in K.R. Shanthi’s case by the Madras High Courtitself and appears to have been consistently followed. May bethe peculiarity of the situation arising in Chemistry subject (whichis in question) gives rise to this problem in the current year andsuch a problem had not apparently arisen earlier. In fact, there is H

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no manner of doubt after the latest judgment of this Court inSaurav Yadav & Ors. case which again refers to the steps whichhave to be taken to fill in those vacancies. The steps are clear intheir terms : in the given facts of the case, application of thoseprinciples or steps would imply: a) the general merit list to befirst filled in; (b) the backlog vacancies of the particular reservedcategory to be thereafter filled in “first”; and (c) the remainingreserved vacancies for the current year to be filled thereafter.

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It appears that such a situation may not arise in the futureas all backlog vacancies are stated to have been filled in. [Paras27-29][1178-H; 1179-A-F]

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Hardeep Singh vs. State of Punjab & Ors. (2014) 3SCC 92 : [2014] 2 SCR 1 – distinguished.

K.R. Shanthi vs. Secretary to Government, EducationDepartment, Chennai & Anr. (2012) 7 MLJ 241 –approved.

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Saurav Yadav and Ors. vs. State of Uttar Pradesh &Ors. 2020 SCC OnLine SC 1034 – relied on.

Rajesh Kumar Daria vs. Rajasthan Public ServiceCommission and Ors. (2007) 8 SCC 785 : [2007] 8SCR 972; Indra Sawhney v. Union of India 1992 Supp(3) SCC 217 : [1992] 2 Suppl. SCR 454; R.K.Sabharwal vs. State of Punjab (1995) 2 SCC 745 :[1995] 2 SCR 35; Union of India vs. Virpal SinghChauhan [1995] 4 Suppl. SCR 158; Ritesh R Sah vs.Dr. Y.L. Yamul [1996] 2 SCR 695; Anil Kumar Gupta &Ors. vs. State of U.P. & Ors. [1995] 2 Suppl. SCR 396– referred to.

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1168SUPREME COURT REPORTS[2021] 2 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3745-B3754 of 2020

From the Judgment and Order dated 19.03.2020 of the High Courtof Judicature at Madras in W.A. Nos. 419 and 421 to 429 of 2020.

Balaji Srinivasan, AAG, C. Aryama Sundaram, Sr. Adv., VinodhKanna B., Abhishek Gupta, Arindam Ghosh, Advs. for the Appellants.C

V. Giri, N.L. Rajah, Mrs. V. Mohana, S. Nagamuthu, Sr. Advs.,Vikas Mehta, Varun Singh, Ms. Ankita Gupta, K. Balu, M.R. Jothimanian,B. Karunakaran, S. Gowthaman, M.P. Parthiban, A.S. Vairawan, ManiPrabu, Santhosh, R. Sudhakaran, K.V. Jagdishvaran, Ms. G. Indira, Ms.Promila, S. Thananjayan, Advs. for the Respondents.

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The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. The perennial problem of working out the reservation systemgiven the scarce employment sources has given rise to the present dispute.

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2. Notification was issued on 12.06.2019 by the Teachers’Recruitment Board, appellant No. 3, inviting applications online fromeligible candidates for direct recruitment to the post of Post GraduateAssistants and Physical Education Directors, Grade-I in school educationand other departments for the year 2018-2019 in Tamil Nadu. TheFrecruitment for various subjects was carried out smoothly, but the fillingup of vacancies for the post of Post Graduate Assistants in Chemistryhas caused some disputes in which the respondents were applicants. Interms of the notification, a total of 356 posts were notified for Chemistry,out of which 117 vacancies were available for Most Backward Class(MBC) and Denotified Community (DNC) candidates. The break-up ofG117 vacancies was of 74 backlog vacancies and 43 current vacancies.

3. The respondents, among other candidates, applied for theaforementioned post online and appeared in the written examination on28.09.2019. Post verification of certificates, a provisional selection listwas published by appellant No. 3 on 20.11.2019, but the names of theHrespondents were absent.

4. The respondents claimed that on scrutinizing the list, they foundthat the meritorious candidates under the MBC quota, who would havebeen selected irrespective of any reservation, had not been consideredunder the general vacancies but had been appointed in the MBC/DNCquota against the backlog vacancies. This had caused the respondentsnot to be appointed. It was their submission that the meritorious candidateswere required to be adjusted against vacancies on merit in the GeneralTurn, and it is only thereafter that the backlog vacancies had to be filledin and thereafter, lastly, the current vacancies under the quota had to beadjusted.

5. The aforesaid resulted in filing of writ petitions before the HighCourt of Madras seeking quashing of the provisional selection list andfor appointment of these respondents.

6. The controversy really arose and arises from the interpretationof Section 27(f) of the Tamil Nadu Government Servants (Conditions ofService) Act, 2016 (hereinafter referred to as “the Act”). The relevantSection reads as under:

“27. Reservation for Appointments-

(f) If qualified and suitable candidates belonging to any of theBackward Classes, Backward Class Muslims including the MostBackward Classes and Denotified Communities are not availablefor selection for appointment by recruitment by transfer or bypromotion in the turns allotted to them, the turns so allotted shalllapse and the selection for appointment for the vacancies shall bemade by the next turn in the order of rotation:

Provided also that in the case of selection for appointment bydirect recruitment, with effect on and from the 1st April 1989,there shall be a ban on dereservation of vacancies reserved forthe candidates belonging to any of the Scheduled Castes andScheduled Tribes, Most Backward Classes and DenotifiedCommunities to be appointed by direct recruitment. But, the aboveban on dereservation of vacancies shall not be applicable to thevacancies reserved for the Backward Classes (other than MostBackward Classes and Denotified Communities), Backward ClassMuslims and, therefore, if qualified and suitable candidatesbelonging to any of the Backward Classes (other than MostBackward Classes and Denotified Communities), Backward Class A

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AMuslims are not available for appointment, the turn so allotted tothem shall lapse and the vacancy shall be filled by the next turn inthe order of rotation. If sufficient number of qualified and suitablecandidates belonging to any of the Scheduled Castes and ScheduledTribes, Most Backward Classes and Denotified Communities arenot available for selection for appointment for the vacanciesBreserved for them by direct recruitment in the first attempt ofrecruitment, then, a second attempt shall be made for selection ofthe candidates belonging to the respective communities by directrecruitment in the same recruitment year or as early as possiblebefore the next direct recruitment for selection of candidatesCagainst such vacancies. If the required number of candidatesbelonging to such communities are not available even then, thevacancies for which selection could not be made shall remainunfilled until the next recruitment year treating them as “backlog”vacancies. In the subsequent year, when direct recruitment is madefor the vacancies of that year, namely, the current vacancies, theD“backlog” vacancies shall also be announced for direct recruitment,keeping the vacancies of the particular recruitment year,namely, the current year vacancies and the “backlog”-vacancies as two distinct groups as illustrated in ScheduleIX. The selection for appointment for the next directErecruitment shall be made first for the “backlog” vacanciesand then the normal rotation shall be followed:

7. The Section propagates the social philosophy of vacancies forreserved category not lapsing in case there are inadequate number ofcandidates. Thus, instead of offering it to the general category, a provisionFhas been made to carry forward those vacancies for one year. In caseeven in the succeeding year, these vacancies are not filled in, then itgoes to other categories. However, crucial issue arises from the lastsentence of third proviso to Section 27(f) which provides for the selectionof appointment for the next direct recruitment to be made “first forbacklog vacancies and then the normal rotation shall be followed”.GMeaning, thus, has to be assigned to what is implied by the expression“first” vis-à-vis the backlog vacancies.

8. It is the case of the appellants that the clear provisions of theSection must be given effect to, which in turn, would imply that on thebasis of merit the backlog vacancies had to be first filled in. After thoseH

vacancies were filled, the appointment had to be made on merit in theGeneral Turn.Thus, such of the candidates who made it on merit, wouldbe adjusted against those seats,while the remaining would be adjustedagainst the reserved vacancies.

9. The respondents succeeded before the learned Single Judge interms of judgment dated 09.01.2020 and the Writ Appeals preferredagainst the same was dismissed vide impugned order dated 19.03.2020.

10. Learned senior counsel for the appellants Shri C. AryamaSundaram contented that vested right can only be for 69% reservation,while if the view propounded by the respondents was to be taken intoaccount, it would lead to more than 69% reservation. There had been noreduction in reservation below the statutory limit, and that coming in theopen category did not mean that they are not entitled to benefit of thereserved category.

11. An argument was initially sought to be propounded that thebacklog vacancies relating to the earlier year would require seniority tobe given, and if the respondents’ plea was accepted, persons lessmeritorious in that category would be entitled to seniority. However, insubsequent proceedings, it transpired that this was not the factual position,as the backlog vacancies would also take the seniority from the yearwhen they were so filled in.

12. Learned senior counsel sought to contend that the expressionused in Section 27(f) of the Act must be given its natural meaning andthe word “first” had been used by the legislature in its wisdom and withan intent which could not be made otiose.

13. The appellant relied on Hardeep Singh Vs. State of Punjab& Ors.[1]

wherein, though the disputerelated to the interpretation of theprovisions of Section 319 of the Cr.P.C., what is relevant is the propositionsought to be laid down.It held that it was a settled principle of law that ifan interpretation leads to a conclusion that the word used by the legislatureis redundant, that should be avoided as the presumption is that thelegislature has deliberately and consciously used the word of carryingout the purpose of the Act. The legal maxim a verbislegis nonestrecedendum which means, “from the words of law, there must be no 1 (2014) 3 SCC 92, paras 42 to 45.

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Adeparture” has to be kept in mind. There could be no assumption that alegislature committed a mistake when the language of the statute wasplain and ambiguous. No word in a Statute has to be construed as asurplusage nor could any word be rendered ineffective or purposeless ifthe Court required to carry out the legislative intent fully and completely.

B14. We may also note the submission of learned senior counselfor the intervenors Mr. S. Nagamuthu, supporting the plea of theappellants because his clients are the beneficiaries of the manner inwhich the Section is sought to be interpreted by the appellants, and thuscertain other reserved categories benefited from the same. The additionalsubmission he made was in the context of Article 16 (4B) of theCConstitution of India which reads as under:

“16: Equality of opportunity in matters of publicemployment- (4B)- Nothing in this article shall prevent the State from consideringDany unfilled vacancies of a year which are reserved for beingfilled up in that year in accordance with any provision forreservation made under clause (4) or in accordance with anyprovision for reservation made under clause (4) or clause (4A) asa separate class of vacancies to be filled up in any succeedingyear or years and such class of vacancies shall not be consideredEtogether with the vacancies of the year in which they are beingfilled up for determining the ceiling of fifty per cent reservation ontotal number of vacancies of that year.”

15. The submission advanced was that what the appellants weredoing was in consonance with the same, as the reservation carriedFforward was to be filled in as a separate class of vacancies, and not tobe considered together with a vacancy of that year in which they arebeing filled in keeping in mind that the seats were limited.

16. On the other hand, learned senior counsel for the respondentsMr. N.L. Rajah contended that the correct methodology was that first,Gthe list has to be drawn up on the basis of merit, and then only the issueof application of reservation would arise.

17. Thus, first the meritorious candidates would take their placein the general merit list where no reservation would apply. Reservationwould apply thereafter, whereby the backlog vacancies would be filledHin first, followed by the current year vacancies. In a nutshell, his contention was that Section 27 of the Act has nothing to do with the selection basedon merit, and only applies to the mode of reservation post that stage.Two lists for “the distinct groups” are required to be made as providedfor the reserved vacancies, which would be- first, a backlog list andthen, secondly, the current list. The meritorious selected candidates havenothing to do with this part of the list. Our attention was also drawn tothe provisional selection list dated 20.11.2019 to point out how the meritlist had been drawn up. The submission, thus, was that this is the consistentand correct practice, and the fact that this problem arose only in case ofChemistry would make no difference even though practically now allthe backlog vacancies would be filled in.

18. Learned counsel supported his contention by reference tocertain judicial pronouncements. On the principle of how the persons inthe merit list, irrespective of their community, would not affect thereservation as they would be adjusted against the general candidateswere supported by the judicial pronouncement in Rajesh Kumar Dariavs. Rajasthan Public Service Commission and Ors.[2] In para 9 of thejudgment, the difference between the nature of vertical reservation andhorizontal reservation has been highlighted to opine that the candidatesbelonging to the backward class may compete for non reserved postsfor which they are appointed on merit, their number will not be countedagainst quota reserved for respective backward classes. This is statedto be the consistent view starting from the judgment in Indra Sawhneyv. Union of India[3], R.K. Sabharwal vs. State of Punjab[4], Union ofIndia vs. Virpal Singh Chauhan[5] and Ritesh R Sah Vs. Dr. Y.L.Yamul[6]. This principle does not to apply for horizontal (special)reservations. For example, where a special reservation for women isprovided within the social reservation for Scheduled Castes, the properprocedure is first to fill up the quota for Scheduled Castes in order ofmerit and then find out the number of candidates among them who belongto the special reservation group of “Scheduled Caste women”. If thenumber of women in such list is equal to or more than the number ofspecial reservation quota, then there is no need for further selectiontowards the special reservation quota. Only if there is any shortfall, the 2 (2007) 8 SCC 785.

31992 Supp(3) SCC 217.

4 (1995) 2SCC 745.

5 (1995) 6 SCC 684.

6 (1996) 3 SCC 253.

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Arequisite number of Scheduled Caste women shall have to be taken bydeleting the corresponding number of candidates from the bottom of thelist relating to Scheduled Castes.

19. A similar view has been taken in Anil Kumar Gupta & Ors.vs. State of U.P. & Ors.[7] by opining on the basis of the judgment inBIndra Sawhney’s case (supra) that the proper and correct course is tofirst fill up the open quota seats on the basis of merit, and then fill upeach of the social reservation quotas. If the quota fixed for horizontalreservations is already satisfied, no further question would arise whiledealing with such horizontal reservations (which is not the case in thepresent appeals).C

20. Learned counsel also sought to contend that insofar as TamilNadu is concerned, the matter was settled long time back by the judgmentof the High Court in K.R. Shanthi vs. Secretary to Government,Education Department, Chennai & Anr.[8] It was clearly observed thatcandidates selected on merit under open quota should not be adjustedDagainst reserved vacancy and the inter se seniority of candidates selectedand appointed in that selection should be only on merit and not on thebasis of roster points. It would be relevant to extract the steps whichwere opined as required to be taken and set out in para 14:

“14. A perusal of the above judgments would keep at least twoEthings beyond any pale of doubt. Firstly, the roster is not vacancybased, but the same is only post based. It identifies the number ofposts earmarked for various categories under the verticalreservations and posts left behind for open quota as well as specialreservations. Secondly, after so identifying the posts, it should beFcalculated as to how many vacancies are to be filled up undervarious categories in the current selection. If once the number ofvacancies earmarked for each category in the current selection isidentified by using the Roster, thereafter the Roster will have nofurther role to play in the matter of selection. After identifying thenumber of vacancies earmarked for various categories, theGselection for each category has to be made purely based on meritfollowing the method detailed below:

7 (1995) 5 SCC 173.

7 (1995) 5 SCC 173.

8 (2012) 7 MLJ 241 paras 14, 18 and 19, incidentally authored by S. Nagamuthu, J., ashe then was, though of course the principle of promissory estopple cannot apply whileHhe raises his contentions!

First Step:

(i) As against the number of vacancies identified for open quota,irrespective of caste, sex, physically challenged, etc., everyoneshould be allowed to compete based on merits.

(ii) The meritorious candidates should be first selected as againstthe above vacancies under open quota.

Second Step:

(iii) After completing the first step, moving on to the verticalreservation categories, selection has to be made for each categoryfrom amongst the remaining candidates belonging to the particularreserved category (vertical) based on merits.

Third Step:

(iv) After completing the second step, horizontal reservation whichcuts across the vertical reservation has to be verified as to whetherthe required number of candidates who are otherwise entitled tobe appointed under the horizontal reservation have been selectedunder the vertical reservation.

(v) On such verification, if it is found that sufficient number ofcandidates to satisfy the special reservation (horizontal reservation)have not been selected, then required corresponding number ofspecial reservation candidates shall have to be taken and adjusted/accommodated as against social reservation categories by deletingthe corresponding number of candidates therefrom.

(vi) Even while filling up the vacancies in the vertical reservation,if, sufficient number of candidates falling under the horizontalreservation have been appointed, then, there will be no moreappointment exclusively under the horizontal reservation.

Caution:

(vii) At any rate, the candidates who were selected as against apost under open quota shall not be adjusted against the reservedquota under vertical reservations.”

21. Lastly, referring to the recent judgment of this Court in SauravYadav and Ors. vs. State of Uttar Pradesh & Ors.[9] This judgmentagain set forth the steps to be taken while implementing this list in para14 as under:

9 2020 SCC OnLine SC 1034.

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“14. The observations in the Order dated 20.02.2019 passed bythe Division Bench of the High Court of Judicature at Allahabadin Pramod Kumar Singh v. State of U.P.[8] are also relied uponby the State Government. In that case the horizontal reservationfor dependants of Freedom Fighters, Ex. Servicemen and womenin the very same selection for Police Constables was in issue.The Division Bench of the High Court dealt with the Notesubmitted on behalf of the State which indicated the stepsundertaken to determine and fill up seats for various categoriesas under:—

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“The procedure as set forth for completion of the recruitmentCexercise is then described in the following terms:

“Step 3.1From List-1 select 19158 candidates in open categoryin order of their merit (Total Marks). This list may containcandidates from any state or any reserved categories (OBC/SC/ST) also. Let us call this list as List 1- A.

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Step 3.2 Now select 10345 candidates of OBC Category fromthe candidates left after Step 3.1 from the List-1. This will includeonly OBC candidates with domicile of U.P. Let us call this listas List-1-B.

Step 3.3 Now select 8046 candidates of SC Category from thecandidates left after Step 3.1 from the List-1. This will includeonly SC candidates with domicile of U.P. let us call this list as List1-C.

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Step 3.4Now select 766 candidates of ST Category from thecandidates left after Step 3.1 from the List-1. This will includeonly ST candidates with domicile of U.P. let us call this list as List1-D.

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Step 3.5If number of candidates in List-1-C is less than therequired number 8046 for SC Candidates from shortage will befilled from ST candidates remaining after step 3.4 if available. Ifrequired quota of SC remains unfilled, then number of shortageposts should be shown separately. Similarly if number of for STcandidates then shortage will be filled from SC candidatesremaining after Step 3.3, if available. If required of ST still remainsunfilled then number of shortage posts should be shown separately.

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Step 3.6 In this way four lists of candidates will be prepared asfollows:

List-1-A (OC)List-1-B (OBC)List-1-C(SC)List-1-D (ST)19158 (will include 10345 (Only OBC, 8046 (Only SC, 766 (Only ST, GEN, OBC, ST of domicile of U.P.) domicile of U.P.) domicile of U.P.) any state)

List-1-A (OC) List-1-B (OBC) List-1-C (SC) List-1-D (ST)

19158 (will include GEN, OBC, ST of any state) 10345 (OnlyOBC, domicile of U.P.) 8046 (Only SC, domicile of U.P.) 766(Only ST, domicile of U.P.)

Step 4prepare a separate list of remaining candidates from List-1 who are not included in List-1-A, 1-B, 1-C and 1-D. Let us callthis list as List-1.

Step 4.1 Now count the number of DFF candidates belonging toGeneral Category (having domicile of U.P.) from the List-1-A.The candidates should not be OBC/SC/ST category. If numberof candidates is 383 or more, then nothing needs to be done,otherwise select the shortfall of candidates of general categorybelonging to DFF on merit from the List-2 (Only candidatesnot belonging to OBC, SC & ST category) and adjust/insertthem in after removing equal number of candidates from the bottomof List-1-A except General Category DFF, Ex-Servicemen,female and home guard candidates (any candidate who is eligiblefor horizontal reservation)”.””

22. We have examined the contentions of the parties.

23. First, we would like to turn to the judgment of the learnedSingle Judge which, in our view, is absolutely lucid and clear to thecontroversy and the conclusion. Learned Single Judge set forth thecontroversy in the first paragraph itself, i.e., whether the candidateswho secured high marks should have been fitted in the General Turn buthave been fitted in MBC/DNC Quota for the last year, which in turn hasdeprived certain candidates of selection. It has been rightly noted thatthe entire confusion has arisen due to the wrong reading of provisions ofSection 27 of the Act, which provides for reservation for appointment.Section 27(f) merely states that if the required number of candidatesbelonging to the community which fall under reservation are not available,then, the vacancies, for which selection could not be made in the currentyear, should be treated as backlog vacancies. In the subsequent A

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Arecruitment, the backlog vacancies and the current vacancies for theparticular community must be separately announced, and the directrecruitment must first accommodate the backlog vacancies and thereafteronly, the current vacancies have to be accommodated. The provisionhad been read by the appellants as if the backlog vacancies must befilled in by MBC/DNC category candidates, irrespective of the merit ofBthe candidate or the rank secured by him/her. The highest mark thatwas secured was 109 and, up to 90 marks, the candidates were fitted inGeneral Turn and thus those candidates will have to be selected underthe General Turn, irrespective of their community. It is these candidateswho had been fitted in the backlog vacancy which has caused theCproblem.24. The Division Bench vide the impugned order also opined inthe same terms and agreed with the interpretation of Section 27 of theAct by further observing that the proviso which contains the word “first”does not have any relation to the offer and placement of such reservedDcategory candidates, including, Most Backward Classes who attain theirposition by way of merit in the open category/General Turn vacancies.

25. We are in complete agreement with the view taken by thecourts below as there really could not have been any cavil to the aforesaid.The principle that such of the reservation category candidates who makeit on their own merit have to be adjusted against the general categoryEcandidates has not been in doubt or argued in view of the catena ofjudgments cited aforesaid. In our view, Section 27(f) of the Act cannotbe read in a manner, apart from any other reason, to negate this veryprinciple.

26. It has been rightly pointed out by learned counsel for theFrespondents that the issue arising from seniority of filling the backlogvacancies first was not even urged in the courts below and was soughtto be raised for the first time before this Court, and elaborately at that,which plea finally fizzled out, as it was conceded that there is no factualbasis for the same.

G27. There can be no doubt about the proposition that if a word isused in a Statue, it cannot be made otiose as held in Hardeep Singh(supra). However, that is not the factual scenario in this case. The questionarises as to at which stage would Section 27 of the Act operates, andwhere in the list, the application of the “first” principle would apply.Section 27 deals with the reservation. It has nothing to do with the generalHcandidates list/ General Turn vacancies. Such of the candidates who have made it on their own merit albeit, from reserved category, have notsought the benefit of the reservation. Thus, Section 27 of the Act wouldhave nothing to do upto that point. Section 27 would apply only when thereservation principle begins, which is after filling up of the seats on merit.Thus, the word “first” would apply at that stage, i.e., the backlogvacancies have to be filled in first and the current vacancies to be filledin thereafter. At the stage when the general category seats are beingfilled, there is thus no question of any carry forward or current vacanciesfor reserved category arising at all.

28. We may also note that the manner of filling up the seats hasbeen well enunciated in the judgment in K.R. Shanthi’s case (supra) bythe Madras High Court itself and appears to have been consistentlyfollowed. May be the peculiarity of the situation arising in Chemistrysubject (which is in question) gives rise to this problem in the currentyear and such a problem had not apparently arisen earlier. In fact, thereis no manner of doubt after the latest judgment of this Court in SauravYadav & Ors. case (supra) which again refers to the steps which haveto be taken to fill in those vacancies. The steps are clear in their terms :in the given facts of the case, application of those principles or stepswould imply:

(a) the general merit list to be first filled in; (b) the backlog vacancies of the particular reserved category tobe thereafter filled in “first”; and

(c) the remaining reserved vacancies for the current year to befilled thereafter.

29. It appears that such a situation may not arise in the future asall backlog vacancies are stated to have been filled in.The performanceand merit of candidates, as apparent from the list in question, woulditself show as to how many candidates have been successful to attainappointment on a merit position without even availing of reservation- anextremely encouraging aspect! The increase in MBC/DNC candidatesreally does not impinge on the reservation of seats for other categories,nor does it violate any provision of the Constitution of India.[10]Though, ofcourse, it would imply that some of the other candidates from different 10 These observations are in the context of the controversy before us as the larger issueof reservation beyond 50%, qua Tamil Nadu, is still pending consideration before thisCourt.

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Areserved categories would not be entitled to fill in the reserved seats ofMBC/DNC categories, if those seats would have remained vacant.

30. The result of the aforesaid is that the appeals are dismissed inthe aforesaid terms, leaving the parties to bear their own costs.

31. We may note that apparently in pursuance to our directions,Bthe candidates as per the impugned judgment may possibly have alreadyjoined.

Divya Pandey

Appeals dismissed.

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