JUDGMENT

G.S. Singhvi, J.

1. Leave granted.

2. The questions which arise for consideration in this appeal filed against the order of the Division Bench of the Guwahati High Court dismissing the writ petition filed by the appellant for quashing the selection made by the Assam Public Service Commission (for short, he Commission) are whether a candidate of reserved category, who is adjudged more meritorious than open/general category candidates, is entitled to be appointed in the service/cadre/post of his choice/preference against the post earmarked for the reserved category to which he belongs and whether while computing the quota/percentage of reservation, such candidate should be treated to have been allotted a post in the open category.

3. On a requisition received from the State Government, the Commission issued advertisement No.6/2006 dated 10.8.2006 for 116 posts of Assam Civil Service Class-I (Junior Grade), Assam Police Service (Junior Grade), Labour Officer, Assistant Registrar of Cooperative Societies, Inspector of Labour, Inspector of Taxes and Inspector of Excise. These included 11 backlog posts of reserved categories of Scheduled Castes, Scheduled Tribes (P) and Scheduled Tribes (H). The appellant, who belongs to OBC applied for recruitment against the advertised posts. After clearing the preliminary and final examination, the appellant was called for interview. The list of selected candidates was published by the Commission on 15.6.2009.

4. As the appellants name did not figure in the merit list, he submitted an application under the Right to Information Act, 2005 for supply of the details of marks awarded to him in various papers and interview. Vide reply dated 16.7.2009, the Commission informed the appellant that he had secured 840 marks (669 in the main examination and 141 in the interview). The appellant then filed Writ Petition No.3590/2009 for quashing the entire selection and for issue of a mandamus to the Commission to prepare fresh select list in accordance with the recruitment rules and the reservation policy framed by the State Government. Some other unsuccessful candidates also filed writ petitions questioning the selection made by the Commission. The Division Bench of the High Court disposed of all the petitions by common order dated 1.9.2009 and directed the Commission to prepare fresh select list.

5. In compliance of the direction given by the High Court, the Commission prepared fresh select list which was notified on 18.2.2010. The appellants name did not find place even in the fresh list. He, therefore, filed Writ Petition No.1040/2010 and prayed for issue of a mandamus to the Commission to again revise the select list by contending that more meritorious candidates of the reserved category of OBC who should have been adjusted against the open category posts were illegally appointed against the posts earmarked for the OBC. He pleaded that the Commission committed serious error by allotting the posts in Assam Civil Service to OBC candidates who, keeping in view their overall merit, should have been appointed against the open category posts and, in any case, for the purpose of computing quota of reservation for OBC, such appointments should be treated as having been made against open category posts.

6. The Division Bench of the High Court considered the case of one Manjit Barkakoti, who had secured 952 marks and was placed at Sl.No.25 in the overall merit, but could not be appointed to the Assam Civil Service against the open category post because his marks were less than other open category candidates and held that no illegality was committed by appointing him to that service against the post earmarked for the reserved category. The Division Bench further held that appointment of the candidates of the reserved category, who were adjudged more meritorious than some of the open category candidates against the posts earmarked for the particular reserved category did not result in usurpation of the quota earma