G.K. Misra, C.J.
1. Facts more or less are not in dispute. The petitioner belongs to the 'Tiar' community which is a Scheduled Caste. He1 graduated from the Utkal University in 1962. In the competitive examination held by the Orissa Public Service Commission for the year, the petitioner secured the 105th position in the list of 133 successful candidates. He was the only successful scheduled caste candidate. The Public Service Commission placed him under Group 'B' with the following observation :
'There were fifteen candidates and seven candidates belonging to the Scheduled Castes and Scheduled Tribes respectively. Five scheduled caste candidates and four scheduled tribe candidates did not take the examination. Out of the remaining candidates who appeared at the examination only one scheduled caste candidate qualified himself at the examination. He is Sri Sudhakar Ghadei who occupies the 105th position in the enclosed list. The commission, having regard to the maintenance of efficiency or administration consider him suitable for appointment to the services under Group B. He was appointed to the Junior Branch of O. F. S.' (Orissa Finance Service).
The Service Commission recommended the first 33 candidates in the list of 133 as being suitable for appointment to the services under Group 'A', under the Orissa Administrative Service, Class II (Appointment by Competitive Examination) Regulations, 1959, (hereinafter referred to as the Regulations). Government appointed 27 candidates to the services under Group 'A'. In the ordinary course, the petitioner could not have been appointed to any of the Services under Group 'B' as, in all Government appointed 86 candidates to the Services in both the groups and the position of the petitioner was 105th. The Service Commission, however, having regard to the maintenance of efficiency of administration considered him suitable for appointment to any service under Group 'B', in consideration of the special provision relating to reservation of vacancies for members of the Scheduled Castes and Scheduled Tribes. The petitioner's case is that as there is reservation of 18 per cent for each category of Service and as he was the only successful scheduled caste candidate he should have been appointed to any of the services under Group 'A' even though his position was 105th in the list of successful candidates.
This contention, requires a careful examination of the various provisions of the Orissa Administrative Services Class II (Recruitment) Rules, 1959 (hereinafter referred to as the Rules) and of the Regulations.
3. Rule 4 relates to method of recruitment. Clause (a) thereof prescribes direct recruitment by competitive examination. Rule 6 provides that recruitment to the Service shall, subject to the provisions of the Rules, be in accordance with such regulations as the State Government may, after consultation with the Service Commission, make in this behalf. Such regulations, in the case of direct recruitment, shall inter alia provide for reservation of seats for scheduled castes and scheduled tribes in accordance with orders issued by the State Government from time to time. Regulation 3 deals with holding of examinations. It runs thus :--
'3. Holding of examination. -- (1) A combined competitive examination shall be conducted by the Commission having regard to the likely number of vacancies each year, in the manner prescribed in Schedule I for direct recruitment to the Services mentioned in Groups A and B below :--Group A,
(i) The Orissa Administrative Service, Class II
(ii) The Orissa Finance Service (Senior Branch)
(iii) The Orissa Police Service Group B.
(i) The Orissa Subordinate Administrative Service
(ii) The Orissa Finance Service (Junior Branch)
(2). The dates on which and the places at which the examination shall be held, shall be fixed by the Commission.'
It will thus be seen that by virtue of Regulation 3, a combined competitive examination shall be conducted by the Public Service Commission, after taking into account the total number of anticipated vacancies, both in Groups A and B. Though the status and scales of pay of the Services in Groups A and B essentially differ, still one combined examination is held for both the classes of services. As would be explained hereafter this is based on the simple reason that persons higher in the list would be selected for Group A and the remaining persons lower in the list would be appointed to the Services under Group B according to the vacancies.
4. The other relevant regulations are 7 to 10. They may be extracted in full :
'7. Forwarding of the list by the Commission (1). The Commission shall forward to the Government in the Administrative Department a list, arranged in order of merit, of the candidates who have qualified by such standards as the Commission may determine and of the candidates belonging to Scheduled Castes and Scheduled Tribes who, though not qualified by that standard, are having regard to the maintenance of efficiency of administration, declared by the Commission to be suitable for appointment to the service. The list shall also be published for general information.
(2) The said list shall ordinarily be in force for one year from the date of its preparation' by the Commission :
Provided that the State Government may at any time, in consultation with the Commission, for a grave lapse in the conduct on the part of any person included in the list, remove the name of such person from the list.
8. Filling of vacancies -- Subject to the provisions of Regulations 10, 12 and 13 candidates will be considered for appointment to the available vacancies in the order in which their names appear in the list.
9. Allotment -- (1) Candidates securing the highest places on the results of the examination and eligible for appointment to the services included in group A under regulation 3 (1) will subject to any preference that (may) have been expressed by them in their applications, be appointed to these, upto the number of vacancies that are decided by Government to be filled on the result of the exarninafion. Due consideration will be given (o the preference expressed by a candidate at the time of his application, but the Government reserve the power to assign him to any service for which he is a candidate and for which he is considered most suitable.
(2) If two or more candidates obtain equal marks in the aggregate, the order of merit shall be determined in accordance with the highest marks secured by such candidates in the aggregate in the compulsory subject; should the marks in the aggregate in the compulsory subject be also equal, then the order of merit shall be decided in accordance with the highest marks secured in the viva voce test.
10. Reservation for Castes and Tribes candidates :-- (1) Eighteen per cent and twenty per cent of the available vacancies shall be reserved for candidates who are members of Scheduled Castes and Scheduled Tribes, respectively,
(2) Tn filling the vacancies so reserved, candidates who are members of the Scheduled Castes or Scheduled Tribes shall be considered for appointment in the order in which their names appear in the list, irrespective of their relative ranks as compared with other candidates.
(3) If a sufficient number of candidates who are members of the Scheduled Castes or Scheduled Tribes are not available for filling all the vacancies reserved, the remaining vacancies shall be filled by the appointment of other candidates in the list and an equivalent number of additional vacancies shall be reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes to be filled on the results of the next examination :
Provided that if a siifficient number of suitable candidates belonging to the Scheduled Castes and Scheduled Tribes is not available as a result of the said next examination to fill all the reserved vacancies including the additional vacancies, the additional vacancies, or such of them as are not filled, shall lapse.'
5. On an analysis of the Regulations, it will be clear that the Service Commission shall forward to Government one list, arranged in the order of merit, of all the candidates who have qualified by such standards as the Commission may determine. Such a list would be based purely on merit, on the basis of the results of the competitive examination. It would not fit in with the reservation of seats for scheduled caste and scheduled tribe candidates, for whom, according to Regulation 10 (1) eighteen and twenty per cent respectively of the available vacancies would be reserved. To harmonise the inconsistency arising out of taking in general candidates on the basis of results of the competitive examination and Scheduled caste and scheduled tribe candidates on the basis of reservation, the Regulations have devised a method by prescribing that even if a candidate belonging to the scheduled caste or scheduled tribe may not be qualified by the standard prescribed by the Service Commission on the basis of the competitive examination, his name should be included in the list to fulfil the ratio of reservation, if the Commission declares that such a candidate, having due regard to the maintenance of efficiency of administration, is suitable for appointment to the Service. Once the Commission gives such a declaration under Regulation 7, then by virtue of Regulation 10 (2) the vacancy would be filled up taking in the scheduled caste or scheduled tribe candidate if his name appears in the list, even though his relative rank, as compared with the other general candidates may be much lower.
In this particular case, the Public Service Commission recommended the first 33 candidates as being suitable for appointment to the Services under Group A. Indisputably, the petitioner does not come within this list of 33 candidates. Yet, he could be, selected for Group A if the Public Service Commission declares that though by the standard of the competitive examination he could not come within these 33 places, yet he was suitable for appointment under Group A having regard to maintenance of efficiency of administration. The Commission not having made any such declaration, the petitioner cannot claim to be appointed to any of the services under Group A.
6. On merits, the petitioner could not have been appointed to any of the services under Group B also, because, in all, only 86 candidates were appointed under both the groups and the petitioner secured the 105th place. The Public Service Commission, however declared that though the petitioner is not entitled to be selected for Group B on the basis of the competitive examination, yet, having regard to the maintenance of efficiency of administration, he was suitable for appointment to the services under Group B. This principle has been evolved in order to preserve the constitutional guarantee given to members of Scheduled Castes and Scheduled Tribes that a certain proportion of posts in the Public Services should be reserved for them. This however is subject to the paramount consideration that they must be fit; if the members of the Scheduled Castes and Scheduled Tribes, are' unfit, they cannot claim to be appointed to the service despite reservation.
7. The writ application fails and is dismissed but in the circumstances without costs.
8. I agree.