The Allahabad High Court, Lucknow Bench while deciding a batch of more than 100 petitions challenging the reservation policy adopted in ATRE-2019 (Assistant Teachers Recruitment Examination) has held that the reservation should not be envisaged as an end to the problem but merely a means to secure the social, economic, and political justice as enshrined in our Preamble.

The Court directed the State Government to revise the select list of ATRE dated June 1, 2020, in view of the observation made by it in the judgment.

A Single Bench of Justice Om Prakash Shukla observed, “It is settled law that an authority cannot make selection/ appointment beyond the number of posts advertised, since it deprives the candidates ineligible for appointment on last date for submission of application and who became eligible for appointment thereafter, to participate in fresh selection exercise through fresh advertisement. Thus, filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason that it amounts to improper exercise of power. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law.”

The Bench further held that the select list of 6800 dated February 5, 2022, issued for the selection of reserved category candidates cannot be sustained in the eyes of law.

Advocates Neel Kamal Mishra, Deepak Singh, Niteesh Kumar, Pramod Kumar Yadav, and Rajeev Narayan Pandey represented the petitioners while Advocate Ajay Kumar represented the State.

Facts -

The State vide Government Order dated December 1, 2018, notified the 2nd ATRE i.e., ATRE-2019 for filling up 69,000 vacancies of Assistant Teachers, and thereafter an advertisement came to be issued notifying that the said exam would be conducted on January 6, 2019. ATRE-2019 was conducted on the said date without there being any specification of minimum qualifying marks however, on the very next day, the Government fixed the minimum qualifying marks for ATRE-2019.

In the meantime, the result for ATRE-2019 was declared by the Examining Body in the year 2020 wherein about 4,31,466 candidates got registered themselves, out of which 4,09,530 candidates appeared in the exam and about 1,46,060 candidates were declared successful. A final select list got mired with a controversy and various writ petitions came to be filed with a common ground of defective application of the reservation policy including non-compliance with Section 3(6) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes) Act, 1994 dealing with the migration of MRC (Meritorious Reserved Category) candidates to the General Category.

The High Court in the above regard said, “… the core issue to be decided in these bunch of writ petition is as to whether section 3(6) of the Reservation Act of 1994 would apply where a candidate of reserved category though has availed relaxation meant for reserved category candidates in the TET ( Teachers Eligibility Test) or ATRE ( Assistant Teachers Recruitment Examination), can still be allowed to compete with general category candidates in an open selection by securing more marks than the last selected general category candidates.”

The Court noted that the law had been settled by a number of decisions of the Apex Court itself that it was against the law and also the rights of others to appoint more people than the vacancies advertised.

“… it has been held that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution” of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies”, the Court further noted.

The Court asserted that the concession granted at the level of TET, so as to make a candidate eligible to participate in the open competition, like the ATRE-2019 would not debar a reserved category candidate to be excluded from the consideration zone in the open competition, in case he is able to match and score more marks than the last general category candidate in the open category as the competition has not yet started at that point of time.

“… in case a candidate seeks relaxation of marks in passing in the ATRE-2019, obviously he would not be considered to belonging to a meritorious reserved category as not only the competition has started but this relaxation would mean reservation. … To make it abundantly clear any reserved category candidate, who has obtained 65% marks or more can be considered to be a meritorious reserved category candidate and accordingly allowed to compete with the general category candidate and progress to the open category, whereas a reserved category candidate, who has scored less than 65% and more than 60% in the ATRE-2019 would be considered in their own respective category and would not be allowed to progress into consideration zone with general category candidates on the basis of scoring more in the quality point as per Appendix-1 of the rules”, the Court clarified.

The Court held that MRC candidates must be only treated “notionally” as reserve category candidates for the said purpose for allotment of districts and they can opt for a seat earmarked for the reserved category, to not disadvantage them against less meritorious reserved category candidates and such MRC shall be treated as part of the general category only.

“… MRC candidates have to be only treated “notionally” as reserve category candidates for the said purpose for allotment of districts and they can opt for a seat earmarked for the reserved category, so as to not disadvantage him against less meritorious reserved category candidates. Such MRC shall be treated as part of the general category only”, the Court directed.

The Court said that till the revised list is prepared, the candidates already appointed and currently working shall continue their work and said that such a direction is in conformity with the interim order passed by it.

“… it is the respondents, who were under a constitutional duty to implement the provisions of section 3(1) & 3(6) of the Reservation Act in its letter and spirit, however the same having been not done, this court in order to balance the equity and keeping in mind that these young men & women, who as teachers are going to shape the future of this country, hereby grants liberty to the State Government to intervene in this matter in the peculiar facts of the present case and frame a policy for adjustment of these Teachers”, held the Court.

The Court, therefore, concluded that the reservation should not be in any circumstances more than 50% of the total seats.

Accordingly, the Court allowed the pleas.

Cause Title- Mahendra Pal and Ors. v. State of U.P.

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