IMPORTANT POINT
The main legal point established in the judgment is the principle of migration from reserved category to open category based on merit, as mandated by Article 14 and Article 16(4) of the Constitution, and as interpreted in relevant case law.

JUDGMENT :

1. Heard Sri Utkarsh Birla, learned counsel for the petitioners, Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri J.N. Maurya, learned Chief Standing Counsel for the State-respondents and Sri A.K.S. Parihar, learned counsel appearing for the respondent-Board.

2. Petitioners before this Court have been applicants against the post of Assistant Teachers in Trained Graduate Teacher (TGT) by the UP Secondary Education Service Selection Board, Prayagraj vide advertisement No.1/2001 dated 15.03.2021.

3. The examination for selection namely the TGT Examination, 2021 was to be held in respect of 12,603 vacancies that were notified out of which 1742 vacancies were in the subject of Hindi and boys category. Out of 1742 vacancies, (Hindi Subject) 1054 were published for general category and 405 were published for OBC category (boys). Petitioners being eligible their candidature was considered. They duly participated in the selection process. However, they could not make it successful for having secured below 307.38 marks to find place in the final select list that formed panel of selected candidates in the OBC category.

4. Besides the final select list that was prepared and notified as per rules, the Selection Board also prepared a waiting list of 25% as a combined panel of waiting list candidates. This combined waiting list prepared was notified on 28.12.2021 and has been annexed as Annexure-5 to the writ petition and this document is admitted to the respondent-Board as well as State-respondents.

5. This petition came to be filed with the plea that in respect of those vacancies where the candidates of the main panel list did not turn up to join and thus having remained vacant, respondents be directed to prepare a list out of the waiting list in order of preference considering merits for the purposes of recommendations and appointments against such vacancies.

6. It transpires that during pendency of this writ petition, the respondent proceeded to prepare a panel from the waiting list for the purposes of allotment of schools qua vacancies where the candidates originally placed in the merit list did not turn up to join.

7. It is argued by learned counsel appearing for the petitioners that in the notification of panel dated 01.09.2023, a large number of candidates of open category have been recommended for the allotment of college for the purposes of appointment as Assistant Teacher (TGT) though they were below in merit to the petitioners. For example, one Mr. Atul Singh S/o Ram Hriday Singh (general cateogry) placed at Serial No.56 of the notification dated 01.09.2023 had secured 307.38 marks but is below in merit to Nisha Devi, she being senior in age vide Rule 12 of 1978 Rules as she is at serial No.150 of the waiting list whereas Atul Singh is at Serial No.158 (both have equal marks). Again, Ms. Jyotsana Pandey who is there in the notification dated 01.09.2023 at Serial No.67 is at Serial No.209 of the waiting list, is also below to petitioner No.2, namely Nisha Devi and also petitioner no.4 namely Ms. Vandana Yadav who is at Serial No.208 of the waiting list. The other candidates below to Ms. Jyotsana Pandey who have been given allotment vide notification dated 01.09.2023, are all lower in merit in the waiting list, to the petitioners.

8. Learned counsel for the petitioners, thus, has argued that respondents are not justified in giving appointments against the vacant situations from the waiting list of those general category candidates who are lower in merit than OBC/reserved category candidates. The arguments is based on the principle that in open category, all other category candidates can get entry if they are having higher merit to a candidate of open category candidate.

9. It is argued further that the 'Samekit' means consolidated list of selectees and in that case as and when the vacancy occurs on account of non joining of the selected candidates from the main panel and if there is no other candidate avai