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The apex court said in such circumstances, the appointments of OBC candidates could not have been considered against the seats meant for the reserved category.
The top court said that consequently, after considering their appointments in the general category, the seats meant for the reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit.
A bench of Justices MR Shah and BV Nagarathna relied on various verdicts of the top court including Indra Sawhney Versus Union of India of 1992, popularly called Mandal Commission verdict while dealing with a case of two OBC category candidates seeking the job in the Bharat Sanchar Nigam Limited (BSNL).
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The bench said, “applying the law laid down by this Court in the decisions to the facts of the case on hand, it is noted that the aforesaid two candidates, namely, Alok Kumar Yadav and Dinesh Kumar, belonging to the OBC category, were required to be adjusted against the general category as admittedly they were more meritorious than the last of the general category candidates appointed and that their appointments could not have been considered against the seats meant for reserved category”.
It said, “Consequently, after considering their appointments in the general category, the seats meant for the reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as respondent No.1 herein). The bench added that if such a procedure would have been followed, the original applicant – respondent No.1 (Sandeep Choudhary) would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure.
The bench said that the Rajasthan High Court in its verdict has not committed any error in observing and holding that the aforesaid two candidates, namely, Alok Kumar Yadav and Dinesh Kumar, will have to be adjusted against the general category candidates and accordingly respondent No.1 being a reserved category candidate and being at Sr. No.1 in the waiting list of the reserved category was to be appointed.
It, however, said that at the same time, it cannot be disputed that by reshuffling and insertion of two OBC candidates into the general category select list, two general category candidates already appointed shall have to be expelled and/or shall have to be removed, who are working since long and it may unsettle the entire selection process.
It added, “Therefore, to strike a balance and to ensure that the two general category candidates, who are already appointed will not have to be removed and at the same time, respondent No.1 – original applicant being a reserved category candidate also gets accommodated, if he is so appointed, in the exercise of the powers under Article 142 of the Constitution of India, we propose to pass an order that on reshuffling and respondent No.1 – original applicant being appointed now against the reserved category seats….”.
It directed that the two candidates, namely, Alok Kumar Yadav and Dinesh Kumar, belonging to the reserved category, be treated in the general category seats, two candidates already appointed and belonging to the general category shall not be removed.
The top court said that respondent No.1 (Sandeep Choudhary) shall get the seniority from the date the general category candidates were appointed, who were having lesser merit than the aforesaid two reserved category candidates, namely, Alok Kumar Yadav and Dinesh Kumar. The BSNL has approached the top court feeling aggrieved by the Rajasthan High Court verdict which had asked it to consider appointing Choudhary in the reserved category.
The case pertains to the appointment of Telecom Technical Assistants (TTAs) in pursuance of the notification dated October 6, 2008, issued by BSNL for filling up of TTA posts. The appointment was to be made by way of direct recruitment by open competitive examination in the Rajasthan Telecom Circle.