A reserved category candidate high in merit is entitled to migrate to the open category, provided they have not availed prohibited concessions. However, matching such candidates against their preferred posting is permissible, and eligibility test pass-mark relaxations do not inherently bar migration to the open category.

The challenge in this petition is made to the provisional recommendation list dated 09.02.2025 (“provisional recommendation list”) made by the respondent no. 5, the Uttarakhand Subordinate Service Selection Commission (“the Commission”). The petitioners seek revision of the provisional recommendation list in accordance with Rule 6 and Rule 15(6) of the Uttarakhand Subordinate Education (Trained Graduate Grade) Service Rules, 2014 (“the 2014 Rules”) as well as according to sub-section (6) of Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (“the 1994 Act”).

Heard learned counsel for the parties and perused the record.

Briefly stated, the petitioners case is as follows. The Commission issued an advertisement on 14.03.2024 inviting applications from eligible candidates for selection on 1544 vacancies of Assistant Teacher L.T. Grade in different subjects in the Department of Secondary Education, Government of Uttarakhand. All the petitioners belong to the reserve category of either Scheduled Caste or Other Backward Class. They participated in the selection process and appeared in the written examination that was held on 18.08.2024. The Commission, on 10.01.2025, published a list of candidates for document verification/scrutiny of the documents, which was to be held between 14.01.2025 and 20.01.2025. The petitioners name also appeared in that list. All the petitioners participated in the document verification. Thereafter, the provisional recommendation list was published by the Commission on 09.02.2025. It is the grievance of the petitioners that against 1544 vacancies, the provisional recommendation list was issued in respect of 1300 vacancies only, which is in violation of Rule 15(6) of the 2014 Rules, which requires the selecting body to prepare a select list, which shall include names, 25% more than the existing vacancies. It requires preparing one single list. It also violates the provisions of the 1994 Act. The challenge to the provisional recommendation list is also made on the ground that the reserved category candidates, who secured more marks than the last selected candidates in the open category, have to be shifted and counted against the vacancies of the open category.

The Commission filed its counter affidavit. In para 7 and 8 of the counter affidavit, the Commission has stated that the merit list is to be prepared for the rest of the vacancies very soon, but due to the interim orders passed in a writ petition, the process has been delayed. With regard to the allegations of the petitioners that the candidates, who were required to be selected against the vacancies available in the open category have been wrongly shown to be selected in the reserve category, in para 9 of its counter affidavit, the Commission has stated that the candidates have been selected in order of the merit by giving preferences as exercised by them, as far as possible. It is the case of the Commission that on 07.01.2021, a Memorandum was also issued by the Commission (“Memorandum dated 07.01.2021”), which requires that the candidates shall be given a liberty to exercise an option to choose their place of posting at the time of document verification/scrutiny. In view of this, as per their merit, the Commission shall recommend the name of the selected candidates in accordance of the option exercised by them. The name of the selected candidates shall be recommended as per first preference, as far as possible.

In its supplementary counter affidavit filed by the Commission on 23.07.2025, in para 5, the Commission has made reference to para 8 of the judgment in Special Appeal Nos. 721 of 2019, Uttarakhand Subordinate Service Selection Commission v. Rakesh Singh Paroria and others, and 722 of 2019, Uttarakhand Subordinate Service Selection Commission v. Dalbeer Singh Danu and others. It has been quoted as below:-

“8. It is, no doubt, true that Rule 15(6)(1) of the Rul