The State Of Tamil Nadu vs K. Shobana Etc. Etc. on 5 March, 2021


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Supreme Court of India

The State Of Tamil Nadu vs K. Shobana Etc. Etc. on 5 March, 2021

Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, Hemant Gupta

                                                             1
                                                                                         Reportable

                                    IN THE SUPREME COURT OF INDIA

                                       CIVIL APPELLATE JURISDICTION


                                  CIVIL APPEAL NOS. 3745-3754 OF 2020


         THE STATE OF TAMIL NADU & ORS.                                     .. APPELLANT(S)


                                                     VERSUS

         K. SHOBANA ETC. ETC.                                              ..RESPONDENT(S)


                                             JUDGMENT

SANJAY KISHAN KAUL, J.

1. The perennial problem of working out the reservation system given

the scarce employment sources has given rise to the present dispute.

2. Notification was issued on 12.06.2019 by the Teachers’ Recruitment

Board, appellant No. 3, inviting applications online from eligible

candidates for direct recruitment to the post of Post Graduate Assistants

and Physical Education Directors, Grade-I in school education and other

departments for the year 2018-2019 in Tamil Nadu. The recruitment for

various subjects was carried out smoothly, but the filling up of vacancies

for the post of Post Graduate Assistants in Chemistry has caused some

disputes in which the respondents were applicants.

Signature Not Verified                                                               In terms of the
Digitally signed by
ASHA SUNDRIYAL

notification, a total of 356 posts were notified for Chemistry, out of which
Date: 2021.03.05
18:00:04 IST
Reason:

117 vacancies were available for Most Backward Class (MBC) and
2
Denotified Community (DNC) candidates. The break-up of 117 vacancies

was of 74 backlog vacancies and 43 current vacancies.

3. The respondents, among other candidates, applied for the

aforementioned post online and appeared in the written examination on

28.09.2019. Post verification of certificates, a provisional selection list was

published by appellant No. 3 on 20.11.2019, but the names of the

respondents were absent.

4. The respondents claimed that on scrutinizing the list, they found

that the meritorious candidates under the MBC quota, who would have

been selected irrespective of any reservation, had not been considered

under the general vacancies but had been appointed in the MBC/DNC

quota against the backlog vacancies. This had caused the respondents

not to be appointed. It was their submission that the meritorious

candidates were required to be adjusted against vacancies on merit in the

General Turn, and it is only thereafter that the backlog vacancies had to

be filled in and thereafter, lastly, the current vacancies under the quota

had to be adjusted.

5. The aforesaid resulted in filing of writ petitions before the High Court

of Madras seeking quashing of the provisional selection list and for

appointment of these respondents.

6. The controversy really arose and arises from the interpretation of

Section 27(f) of the Tamil Nadu Government Servants (Conditions of

Service) Act, 2016 (hereinafter referred to as “the Act”). The relevant

Section reads as under:

3

“27. Reservation for Appointments-

(f) If qualified and suitable candidates belonging to any of
the Backward Classes, Backward Class Muslims including
the Most Backward Classes and Denotified Communities are
not available for selection for appointment by recruitment
by transfer or by promotion in the turns allotted to them,
the turns so allotted shall lapse and the selection for
appointment for the vacancies shall be made by the next
turn in the order of rotation:

Provided also that in the case of selection for appointment
by direct recruitment, with effect on and from the 1st April
1989, there shall be a ban on dereservation of vacancies
reserved for the candidates belonging to any of the
Scheduled Castes and Scheduled Tribes, Most Backward
Classes and Denotified Communities to be appointed by
direct recruitment. But, the above ban on dereservation of
vacancies shall not be applicable to the vacancies reserved
for the Backward Classes (other than Most Backward
Classes and Denotified Communities), Backward Class
Muslims and, therefore, if qualified and suitable candidates
belonging to any of the Backward Classes (other than Most
Backward Classes and Denotified Communities), Backward
Class Muslims are not available for appointment, the turn so
allotted to them shall lapse and the vacancy shall be filled
by the next turn in the order of rotation. If sufficient number
of qualified and suitable candidates belonging to any of the
Scheduled Castes and Scheduled Tribes, Most Backward
Classes and Denotified Communities are not available for
selection for appointment for the vacancies reserved for
them by direct recruitment in the first attempt of
recruitment, then, a second attempt shall be made for
selection of the candidates belonging to the respective
communities by direct recruitment in the same recruitment
year or as early as possible before the next direct
recruitment for selection of candidates against such
vacancies. If the required number of candidates belonging
to such communities are not available even then, the
vacancies for which selection could not be made shall
remain unfilled until the next recruitment year treating them
as “backlog” vacancies. In the subsequent year, when direct
recruitment is made for the vacancies of that year, namely,
the current vacancies, the “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 Schedule-IX.
4

The selection for appointment for the next direct
recruitment shall be made first for the “backlog”
vacancies and then the normal rotation shall be
followed:

7. The Section propagates the social philosophy of vacancies for

reserved category not lapsing in case there are inadequate number of

candidates. Thus, instead of offering it to the general category, a provision

has been made to carry forward those vacancies for one year. In case

even in the succeeding year, these vacancies are not filled in, then it goes

to other categories. However, crucial issue arises from the last sentence

of third proviso to Section 27(f) which provides for the selection of

appointment for the next direct recruitment to be made “first for backlog

vacancies and then the normal rotation shall be followed”. Meaning, 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 the

Section must be given effect to, which in turn, would imply that on the

basis of merit the backlog vacancies had to be first filled in. After those

vacancies were filled, the appointment had to be made on merit in the

General Turn. Thus, such of the candidates who made it on merit, would

be adjusted against those seats, while the remaining would be adjusted

against the reserved vacancies.

9. The respondents succeeded before the learned Single Judge in

terms of judgment dated 09.01.2020 and the Writ Appeals preferred

against the same was dismissed vide impugned order dated 19.03.2020.
5

10. Learned senior counsel for the appellants Shri C. Aryama Sundaram

contented that vested right can only be for 69% reservation, while if the

view propounded by the respondents was to be taken into account, it

would lead to more than 69% reservation. There had been no reduction in

reservation below the statutory limit, and that coming in the open

category did not mean that they are not entitled to benefit of the reserved

category.

11. An argument was initially sought to be propounded that the backlog

vacancies relating to the earlier year would require seniority to be given,

and if the respondents’ plea was accepted, persons less meritorious in

that category would be entitled to seniority. However, in subsequent

proceedings, it transpired that this was not the factual position, as the

backlog vacancies would also take the seniority from the year when they

were so filled in.

12. Learned senior counsel sought to contend that the expression used

in Section 27(f) of the Act must be given its natural meaning and the word

“first” had been used by the legislature in its wisdom and with an intent

which could not be made otiose.

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

wherein, though the dispute related to the interpretation of the provisions

of Section 319 of the Cr.P.C., what is relevant is the proposition sought to

be laid down. It held that it was a settled principle of law that if an

interpretation leads to a conclusion that the word used by the legislature

is redundant, that should be avoided as the presumption is that the

1 (2014) 3 SCC 92, paras 42 to 45.

6

legislature has deliberately and consciously used the word of carrying out

the purpose of the Act. The legal maxim a verbis legis non est

recedendum which means, “from the words of law, there must be no

departure” has to be kept in mind. There could be no assumption that a

legislature committed a mistake when the language of the statute was

plain and ambiguous. No word in a Statute has to be construed as a

surplusage nor could any word be rendered ineffective or purposeless if

the Court required to carry out the legislative intent fully and completely.

14. We may also note the submission of learned senior counsel for the

intervenors Mr. S. Nagamuthu, supporting the plea of the appellants

because his clients are the beneficiaries of the manner in which the

Section is sought to be interpreted by the appellants, and thus certain

other reserved categories benefited from the same. The additional

submission he made was in the context of Article 16 (4B) of the

Constitution of India which reads as under:

“16: Equality of opportunity in matters of public
employment-

(4B)- Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or in
accordance with any provision for reservation made under
clause (4) or clause (4A) as a separate class of vacancies to
be filled up in any succeeding year or years and such class
of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total
number of vacancies of that year.”

15. The submission advanced was that what the appellants were doing
7
was in consonance with the same, as the reservation carried forward was

to be filled in as a separate class of vacancies, and not to be considered

together with a vacancy of that year in which they are being filled in

keeping in mind that the seats were limited.

16. On the other hand, learned senior counsel for the respondents Mr.

N.L. Rajah contended that the correct methodology was that first, the list

has to be drawn up on the basis of merit, and then only the issue of

application of reservation would arise.

17. Thus, first the meritorious candidates would take their place in the

general merit list where no reservation would apply. Reservation would

apply thereafter, whereby the backlog vacancies would be filled in 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 based on

merit, and only applies to the mode of reservation post that stage. Two

lists for “the distinct groups” are required to be made as provided for the

reserved vacancies, which would be- first, a backlog list and then,

secondly, the current list. The meritorious selected candidates have

nothing to do with this part of the list. Our attention was also drawn to

the provisional selection list dated 20.11.2019 to point out how the merit

list had been drawn up. The submission, thus, was that this is the

consistent and correct practice, and the fact that this problem arose only

in case of Chemistry would make no difference even though practically

now all the backlog vacancies would be filled in.

18. Learned counsel supported his contention by reference to certain
8
judicial pronouncements. On the principle of how the persons in the merit

list, irrespective of their community, would not affect the reservation as

they would be adjusted against the general candidates were supported by

the judicial pronouncement in Rajesh Kumar Daria vs. Rajasthan Public

Service Commission and Ors.2 In para 9 of the judgment, the difference

between the nature of vertical reservation and horizontal reservation has

been highlighted to opine that the candidates belonging to the backward

class may compete for non reserved posts for which they are appointed

on merit, their number will not be counted against quota reserved for

respective backward classes. This is stated to be the consistent view

starting from the judgment in Indra Sawhney v. Union of India 3, R.K.

Sabharwal vs. State of Punjab4, Union of India 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 is provided within the social reservation for

Scheduled Castes, the proper procedure is first to fill up the quota for

Scheduled Castes in order of merit and then find out the number of

candidates among them who belong to the special reservation group of

“Scheduled Caste women”. If the number of women in such list is equal to

or more than the number of special reservation quota, then there is no

need for further selection towards the special reservation quota. Only if

there is any shortfall, the requisite number of Scheduled Caste women

2. (2007) 8 SCC 785.

3. 1992 Supp (3) SCC 217.

4. (1995) 2 SCC 745.

5. (1995) 6 SCC 684.

6. (1996) 3 SCC 253.

9

shall have to be taken by deleting the corresponding number of

candidates from the bottom of the list 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 in Indra Sawhney’s

case (supra) that the proper and correct course is to first fill up the open

quota seats on the basis of merit, and then fill up each of the social

reservation quotas. If the quota fixed for horizontal reservations is already

satisfied, no further question would arise while dealing with such

horizontal reservations (which is not the case in the present appeals).

20. Learned counsel also sought to contend that insofar as Tamil Nadu is

concerned, the matter was settled long time back by the judgment of the

High Court in K.R. Shanthi vs. Secretary to Government, Education

Department, Chennai & Anr.8 It was clearly observed that candidates

selected on merit under open quota should not be adjusted against

reserved vacancy and the inter se seniority of candidates selected and

appointed in that selection should be only on merit and not on the basis of

roster points. It would be relevant to extract the steps which were opined

as required to be taken and set out in para 14:

“14. A perusal of the above judgments would keep at least

two things beyond any pale of doubt. Firstly, the roster is

not vacancy based, but the same is only post based. It

7. (1995) 5 SCC 173.

8. (2012) 7 MLJ 241 paras 14, 18 and 19, incidentally authored by S. Nagamuthu, J., as
he then was, though of course the principle of promissory estopple cannot apply while he
raises his contentions!
10
identifies the number of posts earmarked for various

categories under the vertical reservations and posts left

behind for open quota as well as special reservations.

Secondly, after so identifying the posts, it should be

calculated as to how many vacancies are to be filled up

under various categories in the current selection. If once the

number of vacancies earmarked for each category in the

current selection is identified by using the Roster, thereafter

the Roster will have no further role to play in the matter of

selection. After identifying the number of vacancies

earmarked for various categories, the selection for each

category has to be made purely based on merit following

the method detailed below:

First Step:

(i) As against the number of vacancies identified for open

quota, irrespective of caste, sex, physically challenged, etc.,

everyone should be allowed to compete based on merits.

(ii) The meritorious candidates should be first selected as

against the above vacancies under open quota.

Second Step:

(iii) After completing the first step, moving on to the vertical

reservation categories, selection has to be made for each

category from amongst the remaining candidates belonging

to the particular reserved category (vertical) based on
11
merits.

Third Step:

(iv) After completing the second step, horizontal reservation

which cuts across the vertical reservation has to be verified

as to whether the required number of candidates who are

otherwise entitled to be appointed under the horizontal

reservation have been selected under the vertical

reservation.

(v) On such verification, if it is found that sufficient number

of candidates to satisfy the special reservation (horizontal

reservation) have not been selected, then required

corresponding number of special reservation candidates

shall have to be taken and adjusted/accommodated as

against social reservation categories by deleting the

corresponding number of candidates therefrom.

(vi) Even while filling up the vacancies in the vertical

reservation, if, sufficient number of candidates falling under

the horizontal reservation have been appointed, then, there

will be no more appointment exclusively under the

horizontal reservation.

Caution:

(vii) At any rate, the candidates who were selected as

against a post under open quota shall not be adjusted

against the reserved quota under vertical reservations.”
12

21. Lastly, referring to the recent judgment of this Court in Saurav

Yadav and Ors. vs. State of Uttar Pradesh & Ors. 9 This judgment again set

forth the steps to be taken while implementing this list in para 14 as

under:

“14. The observations in the Order dated 20.02.2019

passed by the Division Bench of the High Court of Judicature

at Allahabad in Pramod Kumar Singh v. State of U.P.8 are

also relied upon by the State Government. In that case the

horizontal reservation for dependants of Freedom Fighters,

Ex. Servicemen and women in the very same selection for

Police Constables was in issue. The Division Bench of the

High Court dealt with the Note submitted on behalf of the

State which indicated the steps undertaken to determine

and fill up seats for various categories as under:—

“The procedure as set forth for completion of the

recruitment exercise is then described in the following

terms:

“Step 3.1 From List-1 select 19158 candidates in open

category in order of their merit (Total Marks). This list may

contain candidates from any state or any reserved

categories (OBC/SC/ST) also. Let us call this list as List 1- A.

Step 3.2 Now select 10345 candidates of OBC Category

from the candidates left after Step 3.1 from the List-1. This

9 . 2020 SCC OnLine SC 1034.

13

will include only OBC candidates with domicile of U.P. Let us

call this list as List-1-B.

Step 3.3 Now select 8046 candidates of SC Category from

the candidates left after Step 3.1 from the List-1. This will

include only SC candidates with domicile of U.P. let us call

this list as List 1-C.

Step 3.4 Now select 766 candidates of ST Category from

the candidates left after Step 3.1 from the List-1. This will

include only ST candidates with domicile of U.P. let us call

this list as List 1-D.

Step 3.5 If number of candidates in List-1-C is less than the

required number 8046 for SC Candidates from shortage will

be filled from ST candidates remaining after step 3.4 if

available. If required quota of SC remains unfilled, then

number of shortage posts should be shown separately.

Similarly if number of for ST candidates then shortage will

be filled from SC candidates remaining after Step 3.3, if

available. If required of ST still remains unfilled then number

of shortage posts should be shown separately.

Step 3.6 In this way four lists of candidates will be

prepared as follows:

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 any domicile of U.P.) domicile of U.P.) domicile of U.P.)

state)
14

Step 4 prepare 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 call this list as List-1.

Step 4.1 Now count the number of DFF candidates

belonging to General Category (having domicile of U.P.) from

the List-1-A. The candidates should not be OBC/SC/ST

category. If number of candidates is 383 or more, then

nothing needs to be done, otherwise select the shortfall of

candidates of general category belonging to DFF on merit

from the List-2 (Only candidates not belonging to OBC,

SC & ST category) and adjust/insert them in after

removing equal number of candidates from the bottom

of List-1-A except General Category DFF, Ex-Servicemen,

female and home guard candidates (any candidate who is

eligible for horizontal reservation)”.””

22. We have examined the contentions of the parties.

23. First, we would like to turn to the judgment of the learned Single

Judge which, in our view, is absolutely lucid and clear to the controversy

and the conclusion. Learned Single Judge set forth the controversy in the

first paragraph itself, i.e., whether the candidates who secured high marks

should have been fitted in the General Turn but have been fitted in

MBC/DNC Quota for the last year, which in turn has deprived certain

candidates of selection. It has been rightly noted that the entire confusion
15
has arisen due to the wrong reading of provisions of Section 27 of the Act,

which provides for reservation for appointment. Section 27(f) merely

states that if the required number of candidates belonging to the

community which fall under reservation are not available, then, the

vacancies, for which selection could not be made in the current year,

should be treated as backlog vacancies. In the subsequent recruitment,

the backlog vacancies and the current vacancies for the particular

community must be separately announced, and the direct recruitment

must first accommodate the backlog vacancies and thereafter only, the

current vacancies have to be accommodated. The provision had been

read by the appellants as if the backlog vacancies must be filled in by

MBC/DNC category candidates, irrespective of the merit of the candidate

or the rank secured by him/her. The highest mark that was secured was

109 and, up to 90 marks, the candidates were fitted in General Turn and

thus those candidates will have to be selected under the General Turn,

irrespective of their community. It is these candidates who had been fitted

in the backlog vacancy which has caused the problem.

24. The Division Bench vide the impugned order also opined in the

same terms and agreed with the interpretation of Section 27 of the Act by

further observing that the proviso which contains the word “first” does not

have any relation to the offer and placement of such reserved category

candidates, including, Most Backward Classes who attain their position by

way of merit in the open category/General Turn vacancies.

25. We are in complete agreement with the view taken by the courts
16
below as there really could not have been any cavil to the aforesaid. The

principle that such of the reservation category candidates who make it on

their own merit have to be adjusted against the general category

candidates has not been in doubt or argued in view of the catena of

judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be

read in a manner, apart from any other reason, to negate this very

principle.

26. It has been rightly pointed out by learned counsel for the

respondents that the issue arising from seniority of filling the backlog

vacancies first was not even urged in the courts below and was sought to

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 factual basis for

the same.

27. There can be no doubt about the proposition that if a word is used 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 question arises

as to at which stage would Section 27 of the Act operates, and where in

the list, the application of the “first” principle would apply. Section 27

deals with the reservation. It has nothing to do with the general

candidates list/ General Turn vacancies. Such of the candidates who have

made it on their own merit albeit, from reserved category, have not

sought the benefit of the reservation. Thus, Section 27 of the Act would

have nothing to do up to that point. Section 27 would apply only when

the reservation principle begins, which is after filling up of the seats on
17
merit. Thus, the word “first” would apply at that stage, i.e., the backlog

vacancies have to be filled in first and the current vacancies to be filled in

thereafter. At the stage when the general category seats are being filled,

there is thus no question of any carry forward or current vacancies for

reserved category arising at all.

28. We may also note that the manner of filling up the seats has been

well enunciated in the judgment in K.R. Shanthi’s case (supra) by the

Madras High Court itself and appears to have been consistently followed.

May be the peculiarity of the situation arising in Chemistry subject (which

is in question) gives rise to this problem in the current year and such a

problem had not apparently arisen earlier. In fact, there is no manner of

doubt after the latest judgment of this Court in Saurav Yadav & Ors. case

(supra) which again refers to the steps which have to 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 steps would imply:

a) the general merit list to be first filled in;

(b) the backlog vacancies of the particular reserved category to be

thereafter filled in “first”; and

(c) the remaining reserved vacancies for the current year to be filled

thereafter.

29. It appears that such a situation may not arise in the future as all

backlog vacancies are stated to have been filled in. The performance and

merit of candidates, as apparent from the list in question, would itself

show as to how many candidates have been successful to attain
18
appointment on a merit position without even availing of reservation- an

extremely encouraging aspect! The increase in MBC/DNC candidates really

does not impinge on the reservation of seats for other categories, nor

does it violate any provision of the Constitution of India. 10 Though, of

course, it would imply that some of the other candidates from different

reserved categories would not be entitled to fill in the reserved seats of

MBC/DNC categories, if those seats would have remained vacant.

30. The result of the aforesaid is that the appeals are dismissed in the

aforesaid terms, leaving the parties to bear their own costs.

31. We may note that apparently in pursuance to our directions, the

candidates as per the impugned judgment may possibly have already

joined.

……………………………..J.

[SANJAY KISHAN KAUL]

……………………………..J.

                                                          [DINESH MAHESHWARI]




                                                          .................................J
                                      .                         [HRISHIKESH ROY]

NEW DELHI,
March 05, 2021.



10 These observations are in the context of the controversy before us as the larger issue
of reservation beyond 50%, qua Tamil Nadu, is still pending consideration before this
Court.



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