Merit-based allocation must not disadvantage more meritorious candidates from reserved categories, as established in Supreme Court precedents.

ORDER :

Sanjeev Sachdeva, J.

1. Petitioner seeks modification in his order of appointment and seeks appointment as per his respective choice in a school of School Education Department, Harda.

2. An advertisement was issued by respondent no.6 i.e. Professional Examination Board for 7429 posts of Directorate of Public Instructions and about 11,000 posts for Tribal Welfare Department. Petitioner filled his application and submitted his candidature for the post of Prathmik Shikshak. Petitioner had applied in OBC category. When the result was declared it transpired that petitioner has scored marks which was much higher than marks obtained by candidates in the unreserved category and accordingly petitioner was migrated to unreserved category.

3. Clause 15 of the subject advertisement dated 27.10.2022 provided for stages of selection and Clause 15.6 of the stages of selection interalia provides as under.:-

4. Clause 15.6 stipulated that out of the final select list, the candidates would be placed in terms of the choice of posting that they will have to choose. The candidates were required to give options against the school. It was indicated as to whether the school belongs to a Tribal Welfare Department (TWD) or School Education Department (SED). The candidate would be required to choose school of Tribal Welfare Department(TWD) or School Education Department(SED) however, allocation of seats would be based on the merit of the candidate.

5. As per the petitioner, petitioner had opted for GPS Gomgaon, Harda, a school of School Education Department as his choice no.71. Petitioner contends that the school opted by the petitioner was not allotted to the petitioner, but he was allotted a school in TWD and the choice which was filled by the petitioner has been given to a person who is lower in merit to the petitioner.

6. It is pointed out that the rank that petitioner has secured is 1439 and the GPS, Gomgaon school of School Education Department in District Harda has been allotted to the candidate who has secured a rank of 2185. Learned counsel submits that merit has proved to be a demerit for the petitioner and he has been allotted a school in the Tribal Welfare Department whereas he opted for a school of School Education Department which has been allotted to a candidate lower in merit.

7. Learned Deputy Advocate General appearing on behalf of respondents/State submits that since the petitioner was treated as unreserved candidate based on his merit, his allocation of seat was done as per the unreserved category and thereafter, the left over seats were allotted in order of merit to the reserved category. He further submits that the posts have already been filled and it would now be very difficult to give the petitioner his choice.

8. Reference may be had to the judgment of the Supreme Court dated 24.02.2022 in Civil Appeal No.7663 of 2021 Praveen Kumar Kurmi vs. State of M.P. and Others wherein, the Supreme Court has held that the working out of reservation policy is in accordance with the judgment of the Supreme Court in Indra Sawhney and Another vs. Union of India, 1992 Supp 3 SCC 217, however, the allocation of service would be based on merit and a more meritorious candidate would not be put to disadvantage on account of working out of the reservation policy in terms of judgment of the Supreme Court in Indra Sawhney (supra).

9. The supreme Court in Praveen Kumar Kurmi(supra) has held as under:-

"In view of the aforesaid position, we are not required to pen down a detailed judgment but would only like to make some observations so that the problem doesn’t arise in the future. There is no cavil to the proposition sought to be advanced by learned counsel for the respondent that the manner of working out of the reservation policy is in accordance with the judgment of this Court in Indra Sawhney & Anr. Vs. Union of India & Anr. 1992 Suppl. 3 SCC 217. However, the allocation of the service is a different aspect. The appellant got selected, on merit withou