K. Vinod Chandran, CJ. – The tricky question of reservation and the mandate to confine it to 50%; so as to not compromise merit is the subject matter agitated herein. The application of the principle, on the facts of the case resulted in meritorious reserved candidates (for brevity, ‘the MRC’) being given their choice districts; enabled only by reason of their higher merit, leading to ouster of reserved candidates to accommodate the meritorious general candidates in the resultant vacancies.

2. Two line of decisions of the Hon’ble Supreme Court, one in the matter of recruitment in public employment and the other in the matter of admissions to academic institutions were relied on by the appellant and the respondents respectively, to support their rival contentions. The appellant, the Bihar Staff Selection Commission (for brevity, ‘the BSSC’) asserts the distinction insofar as admission to academic institutions and appointment to service; while the respondents- the candidates from the reserved category, who were ousted from the select list by reason of ‘the MRC’ candidates having occupied reservation posts, assert that the principle applied in admission to academic institutions squarely applies here though it is an appointment to public service.

3. The two separate line of decisions relied on by both parties are Ritesh R. Sah vs. Y.L. Yamul (Dr), (1996) 3 SCC 253, Tripurari Sharan vs. Ranjit Kumar Yadav, (2018) 2 SCC 656, Dega Venkata Harsha Vardhan vs. Akula Ventaka Harshavardhan, (2019) 12 SCC 735 which relate to admission to academic institutions and Union of India vs. Ramesh Ram, (2010) 7 SCC 234, a Constitution Bench decision followed by Alok Kumar Pandit vs. State of Assam, (2012) 13 SCC 516, with respect to appointment to civil services.

4. In the writ petition filed by the 93 ousted candidates, the petitioners brought on record a letter written by the Director of Agriculture addressed to the Secretary of ‘the BSSC’ seeking recommendation of the 93 candidates for district wise allotment and consequential appointment. This was based on a letter of the General Administration Department, (for brevity, ‘the GAD’) which found that when ‘the MRC’ candidates are adjusted to their optional districts, the resultant vacancy should be given to the reserved candidate who would have got the post to which ‘the MRC’ candidate is appointed, which was the practice employed in medical education. The agricultural department was chastised for taking a different path and was directed to follow the same principle. The learned Single Judge noticed this communication; which appeared to have redressed the grievances of the petitioners and directed the recommendations to be made to the vacant posts. An appeal was filed from the judgment in the writ petition, in which there was a direction to file a review if necessary.

5. Based on a legal opinion from the office of the learned Advocate General, ‘the GAD’ changed its stance, by reason of which ‘the BSSC’ filed a review, leading to the impugned order in the Civil Review cases. The review sought was on the ground that when a MRC candidate is recommended to the unreserved category by virtue of his overall merit, but has exercised an option for getting a choice post or posting, based on the merit within the reserved category candidates, then the reservation vacancy has to be adjusted on the basis of the choice made, conceding the resultant vacancy to general merit. Thus, on an option exercised by a MRC candidate, if he is moved to a choice posting, set apart for the reserved category, then such reservation post is occupied by ‘the MRC’ candidate. However, if such an option is not exercised by ‘the MRC’ candidate and he is posted on the basis of his merit alone, then a reserved category candidate with a lesser merit would be entitled to occupy the reservation post. This would also be in consonance with the mandate of reservation at one time not exceeding 50% as laid down by a Constitution Bench of the Hon’bl