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UDGMENT IN STATE OF TAMIL NADU VS. K.SHOBANA REPORTED IN 2021 (4) SCC 686 VERSUS RECRUITMENT TO THE POST OF CIVIL JUDGE 2023 AS PER SECTION 27 (f) OF THE TAMIL NADU GOVERNMENT SERVANTS (CONDITIONS OF SERVICES) ACT, 2016 – AN INDEPENDENT ANALYSIS:-I. QUESTION :-

by Sekar Reporter · March 21, 2024

JUDGMENT IN STATE OF TAMIL NADU VS. K.SHOBANA REPORTED IN 2021 (4) SCC 686 VERSUS RECRUITMENT TO THE POST OF CIVIL JUDGE 2023 AS PER SECTION 27 (f) OF THE TAMIL NADU GOVERNMENT SERVANTS (CONDITIONS OF SERVICES) ACT, 2016 – AN INDEPENDENT ANALYSIS:-
I. QUESTION :-
Is an interference with the Provisional Selection list for appointment to the post of Civil Judge for the year 2023 following the dictum laid down in Shobana reported in 2021 (4) SCC 686 inspite of the Larger Bench Judgment in Indra Sawhney and the Constitutional Bench Judgment in M.Nagaraj and Ramesh Ram warranted at the instance of the non-selected reserved category candidates who have not even scored marks to compete under OC and who had filed the writ petition after taking a chance in the selection has driven me to pen down few words on Shobana of Hon’ble Bench of 3 Judges as it has caused serious impact of sending 16 candidates who have scored more marks in the recent Civil Judge Recruitment.
Immediately what is flashed in my mind is the words of the recent five Judges Bench Judgment of the Hon’ble Apex Court in M/s Trimurthi Fragrances (p) Ltd –Vs- Government of NCT of Delhi reported in 2022 Live Law SC 778 at paras G and H quoted below for the better understanding of the law on the binding nature of the judicial pronouncements touching our rights and way of life.
“G. The conclusion (1) is that a decision delivered by a Bench of largest strength is binding on any subsequent Bench of lesser or coequal strength. It is the strength of the Bench and not number of Judges who have taken a particular view which is said to be relevant. However, conclusion (2) makes it absolutely clear that a Bench of lesser quorum cannot disagree or dissent from the view of law taken by a Bench of larger quorum. Quorum means the bench strength which was hearing the matter.
H. Thus, it has been rightly concluded that the numerical strength of the Judges taking a particular view is not relevant, but the Bench strength is determinative of the binding nature of the Judgment.”
II. ISSUE :-
Article 16 (4B) of the Constitution of India inserted by the Constitution [Eighty first Amendment] Act, 2000 with effect from 09.06.2000 the constitutional validity of which was upheld in M.Nagaraj and ors 2006 8 SCC 212 mandatorily runs as follows:-
“16 (4B) Nothing in this article shall prevent the state from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause 4 or clause 4A as a seperate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.”
Section 27 (f) of the Tamil Nadu Government Servants Act, 2016 reflects what is categorically and unequivocally mentioned in Article 16(4B) of the Constitution of India which got Judicial sanctity of the Constitutional Bench judgment in M.Nagaraj reported in (2006) 8 SCC 212.
After the lapse of 2 decades from the date of the amendment in 2000 and 14 years from the pronouncement of the Constitutional Bench judgment an interpretation was given to the word ‘First’ in Section 27 (f) of the Act, 2016 to mean that at first the OC vacancies of the current year have to be filled up and then the backlog vacancies and then again the current referred categories thus clubbing both current year vacancies with the backlog vacancies.
On the basis of such interpretations given in Shobana Selection list was directed to be altered on 27.2.2024 following the interpretations given to Section 27(f) of the Act, 2016 by Apex Court in Shobana case.
Accordingly on 19.03.2024 it was done resulting in the exclusion of the candidates who have secured more marks not only under the OC category alone but also under the various categories of communities.
The above is the consequence of the interpretation given to the word ‘first’ used in the last sentence of the third proviso to Section 27 (f) of Tamil Nadu Government Servants Act, 2016 by the Judgment of the Apex Court in Shobana case which has led to the mingling of both the current year vacancies with the carry forward vacancies in view of the direction that at first OC category vacancies have to be filed and then the carry forward vacancies have to be filled even in the absence of an challenge to that provision and when that provision is very clear and unambiguous and inserted in the light of what is said in Article 16 (4B) of the Constitution of India.
(a) The word ‘first’ used in the last line of the 2nd provisio –vs- the word ‘first’ used in the 3rd provisio interpreted in Shobana.:-
Further it is not known as to why the word ‘first’ interpreted in Shobana found in the last line of the third provisio is interpreted. If both the ‘first’ used in the last line of 2nd provisio to Section 27(f) and the 3rd provisio to the same are read together one can easily understand that there is no necessity for the interpretation to the word ‘first’ in the 3rd provisio.
(b) Judgement on Interpretation:-
In this connection it is unavoidable to recall the judgment of the Bench of 3 Judges of the Apex Court in Kotak Mahindra Limited –Vs- A.Balakrishnan and Another reported in (2022) 9 SCC 186 at para 77 as follows:-
“77. It is more than well settled that when the language of a statutory provision is plain and unambiguous, it is not permissible for the Court to add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. At the cost of repetition, we observe that if the argument as advanced by Shri Viswanathan is to be accepted, it will completely change the texture of the fabric of sub-section (22-A) of Section 19 of the Debts Recovery Act.”
It is necessary to mention here that Section 27 (f) is being followed without adapting the interpretation given to the word ‘first’ used in Section 27 (f) for all the other recruitments taken place in the state of Tamil Nadu including the recent Group I service examination.
III. PRELUDE:-
Hon’ble Mr.Justice Ratnavel Pandian, as he then was, a part of the Bench of nine judges who all decided the popular Indra Sawhney case otherwise called as the Mandal Commission Case reported in 1992 Supp (3) SCC 217 at P 364, para 10 has alerted all dealing with the reservation in the following words:-
“10. We are very much alive to the fact that issues which are now facing are hypersensitive, highly explosive and extremely delicate. Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in very pragmatic and realistic manner.”
Again, in the middle of para 12 at P 364 and para 13 His Lordship has described in clear terms the pathetic plight of the people strangulating themselves with the rope of casteism in the following words:-
“12……. In a Hindu Society they are divided into a number of distinct sections and sub-sections known as castes and sub-castes. The moment a child comes out of the mother’s womb in a Hindu Family and takes its first breath and even before its umbilical cord is cut off, the innocent child is branded, stigmatized and put in separate slot according to the caste of its parents despite the fact that the birth of the child in the particular slot is not by choice but by chance.”
“13. The concept of inequality is unknown in the Kingdom of God who creates all beings equal, but the “created” of the creator has created the artificial inequality in the name of casteism with selfish motive and vested interest.”
At paras 22 and 25, the Hon’ble Justice Ratnavel Panidan as he then was has reminded of the duty of the Court in the following words:-
“22. This Court which stands as a sentinel on the quiver over the rights of the people of this Country has to interpret the Constitution in its true spirit with insight into social values and with insight into social values and suppleness of the adoption to the changing social needs upholding the basic structure of the Constitution for securing social justice, economic justice and political justice as well as equality of status and equality of opportunity.”
At para 25, the duty of the Judge was reminded by the Hon’ble Judge as he then was in the following words:-
“25. Therefore, the Judges who are entrusted with the task of fostering an advanced social policy in terms of the Constitutional mandates cannot afford to sit in ivory towers keeping Olympian silence unnoticed and uncaring of the storms and stresses that affect the society.”

IV. CONTROVERSY ON THE FILLING UP OF CARRY FORWARD VACANCIES AND THE REGULAR VACANCIES:-
A. Carry Forward in Indra Sawhney:
In the background of what were observed in the Larger Bench of nine Judges in Indra Sawhney case reported in 1992 Supp (3) SCC 217, the controversy regarding the applicability of reservation in the matter of carry forward vacancies versus the current year vacancies has to be dealt with.
(i) Carry forward should not result in Breach of Maximum 50% Rule for Reservation:-
Paras 809 to 813 of the Larger Bench judgment in Indra Sawhney case at Pp 735 and 736 make it abundantly clear that the reservation contemplated in clause (4) of Article 16 should not exceed 50%. The Larger Bench judgment has made further clear that though 50% shall be the rule, it is necessary not to put out of consideration certain extra ordinary situations inherent in the great diversity of this country and the people.
Thus though the Larger Bench has held that 50% is the rule it has further held that under certain inherent extraordinary situations in farflung and remote areas where the population inhabiting those areas might on account of their being out of the mainstream of national life and in view of the conditions peculiar to and characteristical to them need to be treated them in a different way, some relaxation in the strict rule of 50% may become imperative with a warning that extreme caution is to be exercised in doing so and it should be a special case.
They further held that the scheduled castes get selected on their own merit will not be counted against the quota reserved for the scheduled castes and they will be treated as open competition candidates.
At para 812 the larger Bench has said as to what are vertical reservations and horizontal reservations and held that the reservations in favour of scheduled castes, scheduled tribes and other backward classes under Article 16 (4) may be called vertical reservations whereas reservations in favour of physically handicapped under clause (1) of Article 16 can be referred to as horizontal reservations. It has further clarified that the Horizontal reservations cut across the vertical reservations – what is called interlocking reservations, to mean that even after providing for the horizontal reservations in favour of backward class of citizens remains and should remain the same.

(ii) A year is the Unit for 50% Rule:-
From para 814 the Hon’ble Larger Bench dealt with the question of unit for the application of Rule 50% so as to decide as to whether a year should be taken as the unit or the total strength of the cadre has to be taken as the unit. After discussing the case laws in M.R.Balaji (AIR 1963 SC649), T.Devadasan (AIR 1964 SC 179) and N.M.Thomas (1976) 2 SCC 310 the Hon’ble Larger Bench held that a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.
(iii) Carry-Forward – 50% is the maximum limit and a year is the unit:-
Then the Hon’ble Larger Bench dealt with the issue of Carry-forward of unfilled vacancies at paras 815 to 818 at PP.737 and 738.
The Hon’ble Larger Bench has not agreed with the striking down of the rule providing for the carry-forward on the ground that the Rule of 50% is violated as 65% of the vacancies for the year would go for reservation in Devadasan by holding that the appointments in excess of 50% rule should have been quashed and not the rule itself. On that ground the dictum in Devadasan was overruled.
After discussing elaborately, the maximum percentage of reservation of 50% even while applying the carry-forward rule the Hon’ble Larger Bench at the end of para 817 and 818 held as follows:-
“817. ……….We may also point out that the premise made in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] and reiterated in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] to the effect that clause (4) is an exception to clause (1) is no longer acceptable, having been given up in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906] . It is for this reason that in Karamchari Sangh [(1981) 1 SCC 246, 289 : 1981 SCC (L&S) 50 : (1981) 2 SCR 185, 234] Krishna Iyer, J explained Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] in the following words : (SCC pp. 295-96, para 88)
“In Devadasan case [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] the Court went into the actuals, not into the hypotheticals. This is most important. The Court actually verified the degree of deprivation of the ‘equal opportunity’ right ….
What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right ….Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC and ST candidates be actually appointed to substantially more than 50% of the promotional posts. Some excess will not affect as mathematical precision is difficult in human affairs, but substantial excess will void the selection. Subject to this rider or condition that the ‘carry-forward’ rule shall not result, in any given year, in the selection or appointments of SC and ST candidates considerably in excess of 50% we uphold Annexure I.”
We are in respectful agreement with the above statement of law. Accordingly, we overrule the decision in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] . We have already discussed and explained the 50% rule in paras 804 to 814. The same position would apply in the case of carry-forward rule as well. We, however, agree that a year should be taken as the unit or basis, as the case may be, for applying the rule of 50% and not the entire cadre strength.”
Then at para 818 the Hon’ble Larger Bench has categorically held as follows:-
“818. We may reiterate that a carry-forward rule need not necessarily be in the same terms as the one found in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] . A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried-forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, should not result in breach of 50% rule.”

From the above Hon’ble Larger Bench decision it is abundantly clear that even carry-forward rule is operated it should not result in breach of 50% rule.
B. M.Nagaraj (2006) 8 SCC 215: Carry Forward and Current year vacancies form distinctive groups and they cannot be clubbed together:-
The above Hon’ble Larger Bench was followed in M.Nagaraj and others –vs- Union of India and others reported in (2006) 8 SCC 212 by the Constitutional Bench of 5 Judges with more clarity on carry-forward Rule and with further additions while testing the constitutional validity of Articles 16 (4A) and 16 (4B) of the Constitution of India.
Paras 93 to 95 at P.265 and 266 the Hon’ble Apex Court has held as follows on carry-forward rule:-
“93. The question which remained in controversy, however, was concerning the rule of “carry-forward”. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court held that the number of vacancies to be filled up on the basis of reservation in a year including the “carry-forward” reservations should in no case exceed the ceiling limit of 50%.

However, the Government found that total reservation in a year for SCs, STs and OBCs combined together had already reached 49½% and if the judgment of this Court in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] had to be applied it became difficult to fill “backlog vacancies”. According to the Government, in some cases the total of the current and backlog vacancies was likely to exceed the ceiling limit of 50%. Therefore, the Government inserted clause (4-B) after clause (4-A) in Article 16 vide the Constitution (Eighty-first Amendment) Act, 2000.
By clause (4-B) the “carry-forward”/“unfilled vacancies” of a year are kept out and excluded from the overall ceiling limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-first Amendment) Act, 2000. Quoted herein below is the Statement of Objects and Reasons with the text of the Constitution (Eighty-first Amendment) Act, 2000:”

Again, at paras 96 and 97 at PP.266 and 267 the Hon’ble Apex Court has held as follows:-
“96. The Constitution (Eighty-first Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . Once it is held that each point in the roster indicates a post which on falling vacant has to be filled up by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies does not arise. Therefore, in effect, Article 16(4-B) grants legislative assent to the judgment in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory [Ed.: For the “replacement theory”, see R.K. Sabharwal case, (1995) 2 SCC 745, in general, and para 118, below.] and within the limitations indicated hereinafter.”

As stated above, clause (4-A) of Article 16 is carved out of clause (4) of Article 16. Clause (4-A) provides benefit of reservation in promotion only to SCs and STs. In S. Vinod Kumar v. Union of India [(1996) 6 SCC 580 : 1996 SCC (L&S) 1480] this Court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also the view in Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385].”
At para 100, the Hon’ble Apex Court has made further clear as follows:-
“100. As stated above, Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling limit of 50% on current vacancies continues to remain. In working out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore, if the ceiling limit on the carryover of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation. What is stated hereinabove is borne out by the service rules in some of the States where the carry-over rule does not extend beyond three years.”
C. Conclusion on the above Judgments:-
Thus, one can safely arrive at the following conclusion on Carry-Forward Rule on the basis of the above quoted Larger Bench and Constitutional Bench Judgments, i.e.,
(i) That the carry-forward also should not result in excess of 50% of the vacancies.
(ii) For applying the rule of 50% a year should be taken as the entire strength of the cadre, service or the unit, as the case may be.
(iii) By clause (4-B) the carry-forward/unfilled vacancies of a year are kept out and excluded from the overall ceiling limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty First Amendment) Act, 2000. (Para 95 at P.265 of M.Nagaraj and others –vs- Union of India – (2006) 8 SCC 212.
(iv) The vacancies of carry-forward should not be allowed to become time barred and in view of the time bar the first preference should be given to the carry-forward.
D. Section 27 (f) of the Tamil Nadu Government Servants Act, 2016:-
In the light of what are now stated above Section 27 (f) of Tamil Nadu Government Servants Act, 2016 has to be tested and for our convenience the entire provision is reproduced below:-
“27. Where the special rules lay down that the principle of reservation of appointments shall apply to any service, class or category, selection for appointment thereto shall be made on the following basis:—
(f) If qualified and suitable candidates belonging to any of the Backward Classes, Backward Class Muslims including the Most Backward Classes and Denotified Communities are not available for selection for appointment by recruitment by transfer or by promotion in the turns allotted to them, the turns so allotted shall lapse and the selection for appointment for the vacancies shall be made by the next turn in the order of rotation:
Provided that if qualified and suitable candidates belonging to any of the Scheduled Castes and Scheduled Tribes are not available for selection for appointment by recruitment by transfer or by promotion in the turns allotted to them in the cycle, the turns so allotted to them shall not lapse and the number of candidates to be selected in that recruitment shall be reduced by the number of candidates belonging to Scheduled Castes and Scheduled Tribes not available for selection against the turn allotted to them. The unfilled vacancies reserved for the Scheduled Castes and Scheduled Tribes to be filled by recruitment by transfer or by promotion shall be carried over to four consecutive recruitment years, namely, year of recruitment plus three subsequent recruitment years. The selection for appointment to the vacancies in the next recruitment shall be made first for the carried over turns and then the normal rotation shall be followed.
If qualified and suitable candidates belonging to any of the Scheduled Castes and Scheduled Tribes are not available for selection for appointment by recruitment by transfer or by promotion even thereafter, the vacancies reserved for those categories shall first be dereserved by obtaining the orders of the Government before filling them by candidates in the next turn in the order of rotation:
Provided further that the normal number of vacancies reserved for the candidates belonging to the Scheduled Castes and Scheduled Tribes and the carried forward vacancies as specified in the first proviso shall not exceed fifty per cent of the total number of vacancies for a particular recruitment. If there be two vacancies only, one of them shall be treated as a reserved vacancy. If there be one vacancy only, it shall be treated as unreserved. The surplus of the fifty per cent shall be carried forward to the subsequent recruitment, subject to the condition that the vacancies carried forward do not become time barred due to their continued existence for more than three years. Selection for appointment to the earliest carried forward vacancies shall be made first:
Provided also that in the case of selection for appointment by direct recruitment, with effect on and from the 1st April 1989, there shall be a ban on dereservation of vacancies reserved for the candidates belonging to any of the Scheduled Castes and Scheduled Tribes, Most Backward Classes and Denotified Communities to be appointed by direct recruitment. But, the above ban on dereservation of vacancies shall not be applicable to the vacancies reserved for the Backward Classes (other than Most Backward Classes and Denotified Communities), Backward Class Muslims and, therefore, if qualified and suitable candidates belonging to any of the Backward Classes (other than Most Backward Classes and Denotified Communities), Backward Class Muslims are not available for appointment, the turn so allotted to them shall lapse and the vacancy shall be filled by the next turn in the order of rotation. If sufficient number of qualified and suitable candidates belonging to any of the Scheduled Castes and Scheduled Tribes, Most Backward Classes and 27 Denotified Communities are not available for selection for appointment for the vacancies reserved for them by direct recruitment in the first attempt of recruitment, then, a second attempt shall be made for selection of the candidates belonging to the respective communities by direct recruitment in the same recruitment year or as early as possible before the next direct recruitment for selection of candidates against such vacancies. If the required number of candidates belonging to such communities are not available even then, the vacancies for which selection could not be made shall remain unfilled until the next recruitment year treating them as ―backlog‖ vacancies. In the subsequent year, when direct recruitment is made for the vacancies of that year, namely, the current vacancies, the ―backlog‖ vacancies shall also be announced for direct recruitment, keeping the vacancies of the particular recruitment year, namely, the current year vacancies and the ―backlog‖ vacancies as two distinct groups as illustrated in Schedule-IX. The selection for appointment for the next direct recruitment shall be made first for the ―backlog‖ vacancies and then the normal rotation shall be followed:
Provided also that, in exceptional cases, for posts in Groups A and B for which suitable candidates belonging to the Scheduled Castes, Scheduled Tribes, Most Backward Classes or Denotified Communities are not available against the respective reserved vacancies and the non-filling up of posts causes hardship for running the administration, the Government may grant exemption from carrying forward of such vacancies and the procedure there for shall be as specified in Schedule-IX:
Provided also that when a candidate selected for appointment against a vacancy for Scheduled Castes, Scheduled Tribes, Most Backward Classes / Denotified Communities, Backward Classes, Backward Class Muslims or General Turn, does not join duty in the post for which he is appointed or his provisional selection for that post is cancelled for any reason, a candidate in his place shall be appointed from the respective category and in accordance with the ranking from the reserve list:
Provided also that the candidates appointed from the reserve list shall be placed below all the candidates appointed from the regular list in the same order in which the vacancies have arisen: Provided also that the reserve list shall be operated even against the vacancies caused due to the fact that the candidates have joined duty, but left thereafter while the reserve list is in force.”
Among the above various provisions under section 27 (f) the second and third proviso of section 27 (f) are more relevant as they convey the
following mandate to be followed when a recruitment is undertaken
namely,
(i) If there are two vacancies only one of them shall be treated as a reserved vacancy. If there is one vacancy then it shall be treated as unreserved. The surplus of 50% shall be carried-forward to the subsequent recruitment subject to the condition that the vacancies carry forward do not become time barred due to their continuous existence for more than three years. Selection for appointment to the earliest carry-forward vacancies shall be made first.
(ii) In the subsequent year, when direct recruitment is made for the vacancies of that year, namely, the current vacancies the “Backlog” vacancies shall also be announced for direct recruitment, keeping the vacancies of the particular recruitment year namely, the current year vacancies and the “Backlog” vacancies as two distinct groups as illustrated in Schedule IX.
(iii) The selection for appointment for the next direct recruitment shall be made first for the “backlog’’ vacancies and then the normal rotation shall be followed.
It is clear from the reading of Section 27(f) and the various conditions laid down under that provision that Section 27 (f) is drafted on the mandatory principles of law laid down by the Hon’ble Larger Bench Judgment in Indra Sawhney and the Constitutional Bench Judgment in M.Nagaraj and others upholding the constitutional validity of Article 16 (4-A) and 16 (4-B) of the Constitution of India leaving no room for any interpretation or interference by any Court.
(i) Section 27(f) is followed by the Government for all the Recruitments including even the recent Group – I services Recruitment:-
The above provision is strictly being followed for all the recruitments and even the recent Group-I recruitment is based only on the above provision of law by filling up the carry forward vacancies first and then filling up the current year vacancies to satisfy the 50% Rule and to prevent the carry forward vacancies lapsed after the period of 3 years.

IV. NOTIFICATION FOR THE CIVIL JUDGE RECRUITMENT FOR THE YEAR 2023:-
In this background the Notification for recruitment for the post of Civil Judge was notified on 01.06.2023 inserting the following conditions in the light of the above principles of law narrated elaborately in the above Paras has to be tested.
Inner page 3 of the Notification clause 2 which speaks about the distribution of vacancies is more relevant to the issue involved and hence it is reproduced below:-
“2. DISTRIBUTION OF VACANCIES
The Rule of reservation of appointments is applicable for this recruitment. The distribution of vacancies is put up at ANNEXURE (DV).
i) First, the selection will be made for ‘92’ carried forward vacancies. [Section 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016].
ii) Secondly, the selection will be made for ‘153’ regular vacancies following the rule of reservation.”
Then what is next important provision to be noted in the Notification is 12(A) II which lays down the scheme of preliminary examination:-
“12 (A) II. SCHEME OF PRELIMINARY EXAMINATION:
The Preliminary Examination will consist of one paper containing 100 multiple choice questions based on the syllabus given below. It will be conducted in the forenoon session. The papers will be set both in English and Tamil and eachquestion shall carry one mark; and, 0.10 mark will be deducted for each incorrect answer. The duration of the Preliminary Examination will be three hours. The Preliminary Examination is conducted for the purpose of short listing the candidates and the marks obtained in the Preliminary Examination shall not be counted for determining the final order of merit of the candidates.

Note:
(i) No candidate who has secured less than the minimum marks for a pass prescribed for the paper, in the Preliminary Examination will be declared eligible to participate in the Main Examination.
(ii) The admission of candidates for the Main Examination will be shortlisted at a ratio not exceeding 10 times of the number of vacancies following the rule of reservation. However, in each reservation group, all the applicants, who secure the same marks as that of the cut-off marks of their reservation groups, shall also be admitted to the Main Examination, though the number of applicants to be admitted to the Main Examination may exceed 1:10 ratio.”
Annexure DV would clearly reveal that the total Backlog Vacancies are 92 and the Regular Vacancies for 2021 are 153.
Thus there are totally 245 vacancies and for that a common recruitment was done. If Shobana is applied following the interpretation given to the word ‘first’ in the 3rd provisio all the 245 vacancies are to be treated one block and let us now test how 50% rule is breached.
IV (i) M.Nagaraj (2006) 8 SCC 212 -Vs- the Civil Judge Notification and Section 27 (f) Tamil Nadu Government Servants (Conditions of Services) Act, 2016:-
As per the law laid down in M.Nagaraj and Section 27 (f) the ‘Backlog’ vacancies and the ‘Regular year vacancies’ are to be treated as two distinctive groups and if both are mingled then it would definitely breach the 50% Rule mandated in Indra Sawhney at para 818 at P.740 and M.Nagaraj at para 93 at P.265.
Clause 2 and Annexure DV of the notification has made clear that the carry forward vacancies are to be followed first as they are the vacancies of the previous years. Moreover, if the carry forward vacancies are not filled up first, they would even get lapsed due to the upper time limit of three year fixed in both the above cases and also under Section 27 (f) of the Tamilnadu Government Servants Act, 2016.
Accordingly, the preliminary examination was conducted and the result was published. The short listed candidates were permitted to take part in the Main Examination and the result was published. The candidates selected for viva voice were subjected to the viva voice. Then their testimonials were verified and a provisional selection list was notified on 16.02.2024.
The above process was completed successfully as per the Rules as per the Notification which is not an easy job but a herculean task.
The number of Hon’ble Judges of the Madras High Court spent their valuable time and labour to achieve the publication of the Provisional Selection list and the selected candidates found in the provisional list became very happy and obviously everyone celebrated their success also with their kith and kin.
V. SHOBANA CASE INTERPRETING SECTION 27 (F) OF THE ACT, 2016:-
At that time they were all made to face a bolt from blue by the judgment of the Hon’ble Division Bench at the instance of the four reserved category candidates who were not able to get berth in the Selection who had filed a writ petition that the principle laid down in Shobana case reported in 2021 (4) SCC 686 by the Hon’ble Judges of the Apex Court was not followed by adopting the method of filling up OC vacancies first and then the Carry Forward vacancies and then the reserved category vacancies of the regular year.
Now the question is as to whether the provisional selection list is liable to be interfered inspite of the existence of Section 27 (f) of the Tamil Nadu Government Servants Act, 2016, though interpreted by the Apex Court in Shobana case reported in (2021) 4 SCC 686, after the completion of the selection process, that too, not at the instance of the OC candidate or Merit Reserved Candidate to be selected under the OC. The writ petitioners who were not selected after seeing that they were not selected had filed the writ petition seeking for the direction from the Hon’ble Division Bench to redo the provisional selection in the light of the principle laid down in Shobana case. The said writ petition was allowed without even taking note of the Constitutional Bench Judgment in M.Nagaraj & Ors (2006) 8 SCC 212 and Ramesh Ram reported in (2010) 7 SCC 234, in which it is categorically held that both the carry forward vacancies and Regular year vacancies are two distinctive groups and both cannot be mingled together.
V (i) The Writ Petition for the Implementation of Shobana:-
Before proceeding to find out what is said in Shobana case, we have to deal with the merits of the claim of the Writ Petitioners whose Writ Petition was allowed accepting their contention to follow the Judgment in Shobana Case reported in (2021) 4 SCC 542.
(i) The Writ Petitioners had filed the Writ Petition after waiting for the completion of the selection process and after seeing that they were not selected for appointment had filed the writ and hence it ought to have been dismissed in view of the law laid down in Nagamani Case reported in (2009) 5 SCC 515 and Union of India Vs N.Murugesan reported in (2022) 2 SCC 25.

(ii) They had not impleaded the affected parties found place in the provisional selection list which is also fatal to the entertainment of the Writ petition.

(iii) They do not belong to the OC Category or MRC to claim for the implementation of Shobana. Inspite of all the Writ Petition were entertained and the Provisional Selection was directed to be redone.

(iv) They do not fall either under OC or under MRC for the implementation of Shobana.

V (ii) Now let us see what is said in Shobana case :-
The conclusion and the dictum in Shobana caseare reproduced below:-
“27……..In fact, there is no manner of doubt after the latest judgment of this Court in SauravYadav case [Saurav Yadav v. State of U.P., (2021) 4 SCC 542] which again refers to the steps which have to be taken to fill in those vacancies.
The steps are clear in their terms: in the given facts of the case, application of those principles or steps would imply:
(a) the general merit list to be first filled in;
(b) the backlog vacancies of the particular reserved category to be thereafter filled in “first”; and
(c) the remaining reserved vacancies for the current year to be filled thereafter.”

The above judgment is the cause for the interference with the provisional selection list already published on 16.02.2024 at the instance of certain reserved category candidates.

If the OC seats are filled up ‘first’ as interpreted in Shobana before the ‘Carry forward’ vacancies the ‘MRC’ would get moved to the ‘OC’ by competing with the real OC candidates so as to send the real OCs scoring more marks than the other reserved category candidates out.
Further, the real impact of the interpretation given in Shobana is not going to be restricted only to 48 ‘OC’ categories alone but extended to all the reserved categories of the regular year vacancies including the carry forward vacancies.
In the above background now we have to examine as to whether the judgment in Shobana case reported in (2021) 4 SCC 686 interpreting seeking Section 27(f) of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 even when the said provision is not challenged is a correct law or not in view of the two Larger Constitutional Bench Judgments of the Hon’ble Apex Court.
V (iii) Basis of Shobana Case :-
The basis of the case of State of T.N Vs. Shobana reported in (2021) 4 SCC 686 even as said in the said decision itself is the judgment of the learned Single Judge of Madras High Court in W.P.Nos.34099, 33167, 33175, 33176, 34106, 34109, 34118, 34127, 34133 & 34144 of 2019 dated 09-01-2020 and Saurav Yadav case reported in (2021) 4 SCC 542.
a) The two judgments do not deal with Carry Forward –Vs- Current or Regular Year:-
Unfortunately, both the cases which are referred to as the basis for the judgment of Shobana are nothing to do with the carry forward vacancies Versus OC vacancies of the regular year.
Both the judgments do deal with the single year recruitment and both the decisions for the comfortable arrival at the reservation points have held that the OC vacancies have to be filled up first irrespective of the community on the basis of the marks scored by the candidates and then the candidates have to be arranged on the basis of their own reservation called ‘Vertical’.
Both the decisions have neither interpreted Section 27 (f) of the Tamil Nadu Government Servants (Conditions of Services) Act, 2016 nor similar provisions and said anywhere that before filling up the “Carry Forward” vacancies ‘OC’ vacancies of the current year have to be filled as there was no controversy at all in those 2 cases between the ‘carry forward’ and the current year vacancies.
When the basis for the judgment in Shobana goes what remains is to test as to whether the judgment in Shobana is the correct law governing the very sensitive subject of reservation involving the future career of the candidates competing for appointment and admission in Educational Institutions.

b) Interpretation of Section 27 (f) in Shobana :-
(i) The word ‘first’ used in the 3rd provisio to Section 27 (f) was interpreted by the Bench in Shobana even in the absence of any validity to that provision which is possible only on the basis of the doctrine of Reading Down. But it is to be noted that the Doctrine of Reading Down is not permissible when the provisions sought to be read down are clear and unambiguous and it is permissible only when the validity of the concerned provision is challenged with a view to save the said provision from being struck down.
Reference:-
a) (2023) 8 SCC 745 – Arup BhuyanVs State of Assam
b) 2024 INSC 80 – The Authorised Officer, Central Bank Of India Vs. Shanmugavelu

(ii) Alright if we take it that it is not by way of reading down but of interpretation of statue we can find that there is no necessity for that as the provision is clear. When the provision is clear it cannot be interpreted to give a different meaning in view of the dictum laid down at par 77 of Kotak Mahindra Limited –Vs- A. Balakrishnan and Another reported in (2022) 9 SCC 186 which is already reproduced.

(iii) Thirdly, the word ‘first’ in the 3rd provisio has to be understood what is conveyed by the word ‘first’ used in the 2nd provisio.
But, strangely when Section 27(f) of the Tamil Nadu Government Servants (Conditions of Services) Act, 2016 is very clear, unambiguous and more reasonable conveying the clear message and meaning in the light of Constitutional Bench judgments in M. Nagaraj Case reported in (2006) 8 SCC 212, and Ramesh Ram Case reported in (2010) 7 SCC 234 and also the larger Bench Judgment in Indra Sawhney reported in 1992 Supp (3) SCC 217, the ‘first’ was interpreted.
In Shobana Case the Hon’ble Apex Court on the carry forward vacancies -Vs- Current year vacancies interpreted the word ‘first’ in the 3rd provisio to Section 27(f) of the Tamil Nadu Government Servants (Conditions of Services) Act, 2016 to mean that when there are two sets of vacancies attempted to be filled by a common recruitment the OCs of the current year are to be filled up first and then the carry forward vacancies have to be taken care and then the other reserved category vacancies of the current years are to be dealt with.
c) The two Judgments referred to be the basis of Shobana:-
The bench has held so as already dealt with relying upon the following two judgments, namely,
a) The Learned single judge Judgment of the Madras High Court in W.P.Nos.34099, 33167, 33175, 33176, 34106, 34109, 34118, 34127,34133 & 34144 of 2019 dated09-01-2020.

b) (2021) 4 SCC 542 – Saurav Yadav case.
A cursory glance at both the judgments would clearly reveal that they are nothing to do with the carry forward vacancies at all as they speak about the Single Year recruitment vacancies and they say that when the single year vacancies are to be filled up the OC Vacancies are to be filled up first. Both the judgments to my knowledge and understanding do not anywhere lay down the preposition of law that the OC Vacancies of the current year are to be filled up first and then the carry forward vacancies have to be filed up.
The Hon’ble Apex Court in Saurav Yadav has dealt with entirely a different issue as clear from paragraph 53:-
“53. The controversy that arises in the present round of litigation is the correct method of filling the quota reserved for women candidates (“horizontal quota”). It is the complaint of the applicants, who are largely women, belonging to the Other Backward Class categories, that the State has not correctly applied the rule of reservation, and denied such OBC women candidates the benefit of “migration” i.e. adjustment in the General category vacancies.”
Then turning to the judgment of the learned Single Judge Judgment of the Madras High Court which is said to be the basis for the dictum laid down in Shobana Case one can be easily find that it has laid down the steps for filling up of the vacancies notified for a current year and there is no step given in that judgment as to how the carry forward vacancies have to be filled.
Thus, it is clear that the judgments referred to be the basis for the Shobana Case are not at all related to the carry forward versus Current year vacancies and the judgments which speak about the ‘Carry Forward’ vacancies versus regular vacancies are as follows:-
(1) The Larger bench judgment in Indra Sawhney Vs Union of India reported in 1992 Suppl (3) SCC 217 at para 818 at para 740.

(2) The Constitutional Bench in M.Nagaraj and ors Vs Union of India and ors reported in (2006) 8 SCC 212 – Paras 93,94,95 at Page 265 and 266
When Section 27(f) of the Tamil Nadu Government Servants (Conditions of Services) Act, 2016 is drafted strictly in accordance with the law laid down by the Larger Bench of the Hon’ble Apex Court in Indra Sawhney Vs Union of India reported in 1992 Suppl (3) SCC 217, and the Constitutional Bench Judgment in M.Nagaraj and ors Vs Union of India reported in (2006) 8 SCC 212 and Union of India Vs Ramesh Ram and ors (2010) 7 SCC 234 followed in Tripurari Sharan Vs Rajit Kumar Yadav (2018) 2 SCC 656 (Paras 17,18 and 19) Ashok Kumar pandit Vs State of Assam reported in (2012) 13 SCC 516, no question of interpretation of the word ‘first’ in Section 27 (f) has arisen.
d) Shobana Vs. Indra Sawhey:-
Paras 814 to 818 of the Indra Sawhney Case of 9 Judges Constitutional Bench Judgment speaks about the Carry Forward Vacancies after analysing all the earlier judgments in,
a) M.R.Balaji case reported in AIR 1963 SC 649;
b) T.Devadasan case reported in AIR 1963 SC 179;
c) M.N.Thomas case reported in (1976) 2 SCC 310; and
d) Ahkil bharathiya haramachi Sang case reported in (1981) 1 SCC 246.
and finally arrived at categorical conclusion at Paragraph 814 which is reproduced below:-
“814. The next aspect of this question is whether a year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] does not deal with this aspect but Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] (majority opinion) does. Mudholkar, J speaking for the majority says : (SCR pp. 694-95)
“We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.”
On the other hand is the approach adopted by Ray, CJ in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906] . While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, CJ would not be consistent with Article 16. True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go i.e., in a year or two. The position can be better explained by taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e., 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a short fall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500 i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.
(d) Was Devadasan correctly decided?

The rule (providing for carry-forward of unfilled reserved vacancies as modified in 1955) struck down in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] reads as follows : (SCR p. 686)
“3(a) If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional quota, a corresponding addition should be made to the number of reserved vacancies in the second following year.”

The facts of the case relevant for our purpose are the following:
(i) Reservation in favour of Scheduled Castes and Scheduled Tribes was 12 1/2% and 5% respectively;
(ii) In 1960, UPSC issued a notification proposing to hold a limited competitive examination for promotion to the category of Assistant Superintendents in Central Secretariat Services. 48 vacancies were to be filled, out of which 16 were unreserved while 32 were reserved for Scheduled Castes/Scheduled Tribes, because of the operation of the carry-forward rule; 28 vacancies were actually carried forward;
(iii) UPSC recommended 16 for unreserved and 30 for reserved vacancies — a total of 46;
(iv) the Government however appointed in all 45 persons, out of whom 29 belonged to Scheduled Castes/Scheduled Tribes.
The said rule and the appointments made on that basis were questioned mainly on the ground that they violated the 50% rule enunciated in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] . It was submitted that by virtue of the carry-forward rule, 65% of the vacancies for the year in question came to be reserved for Scheduled Castes/Scheduled Tribes.

The majority, speaking through Mudholkar, J upheld the contention of the petitioners and struck down the rule purporting to apply the principle of Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] . The vice of the rule was pointed out in the following words : (SCR pp. 691-92)
“In order to appreciate better the import of this rule on recruitment let us take an illustration. Supposing in two successive years no candidate from amongst the Scheduled Castes and Tribes is found to be qualified for filling any of the reserved posts. Supposing also that in each of those two years the number of vacancies to be filled in a particular service was 100. The reserved vacancies for each of those years would, according to the Government resolution, be 18 for each year. Now, since these vacancies were not filled in those years a total of 36 vacancies will be carried-forward to the third year. Supposing in the third year also the number of vacancies to be filled is 100. Then 18 vacancies out of these will also have to be reserved for members of the Scheduled Castes and Tribes. By operation of the carry-forward rule the vacancies to be filled by persons from amongst the Scheduled Castes and Tribes would be 54 as against 46 by persons from amongst the more advanced classes. The reservation would thus be more than 50%.
We are of the respectful opinion that on its own reasoning, the decision insofar as it strikes down the rule is not sustainable. The most that could have been done in that case was to quash the appointments in excess of 50%, inasmuch as, as a matter of fact, more than 50% of the vacancies for the year 1960 came to be reserved by virtue of the said rule. But it would not be correct to presume that that is the necessary and the only consequence of that rule. Let us take the very illustration given at pp. 691-92, — namely 100 vacancies arising in three successive years and 18% being the reservation quota — and examine. Take a case, where in the first year, out of 18 reserved vacancies 9 are filled up and 9 are carried-forward. Similarly, in the second year again, 9 are filled up and another 9 are carried-forward. Result would be that in the third year, 9 + 9 + 18 = 36 (out of a total of 100) would be reserved which would be far less than 50%; the rule in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] is not violated. But by striking down the rule itself, carrying forward of vacancies even in such a situation has become impermissible, which appears to us indefensible in principle. We may also point out that the premise made in Balaji [1963 Supp 1 SCR 439 : AIR 1963 SC 649] and reiterated in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] to the effect that clause (4) is an exception to clause (1) is no longer acceptable, having been given up in Thomas [(1976) 2 SCC 310, 380 : 1976 SCC (L&S) 227 : (1976) 1 SCR 906] . It is for this reason that in KaramchariSangh [(1981) 1 SCC 246, 289 : 1981 SCC (L&S) 50 : (1981) 2 SCR 185, 234] Krishna Iyer, J explained Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] in the following words : (SCC pp. 295-96, para 88)
“In Devadasan case [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] the Court went into the actuals, not into the hypotheticals. This is most important. The Court actually verified the degree of deprivation of the ‘equal opportunity’ right ….
…. What is striking is that the Court did not take an academic view or make a notional evaluation but checked up to satisfy itself about the seriousness of the infraction of the right …. Mathematical calculations, departing from realities of the case, may startle us without justification, the apprehension being misplaced. All that we need say is that the Railway Board shall take care to issue instructions to see that in no year shall SC and ST candidates be actually appointed to substantially more than 50% of the promotional posts. Some excess will not affect as mathematical precision is difficult in human affairs, but substantial excess will void the selection. Subject to this rider or condition that the ‘carry-forward’ rule shall not result, in any given year, in the selection or appointments of SC and ST candidates considerably in excess of 50% we uphold Annexure I.”

We are in respectful agreement with the above statement of law. Accordingly, we overrule the decision in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] . We have already discussed and explained the 50% rule in paras 804 to 814. The same position would apply in the case of carry-forward rule as well. We, however, agree that a year should be taken as the unit or basis, as the case may be, for applying the rule of 50% and not the entire cadre strength.

We may reiterate that a carry-forward rule need not necessarily be in the same terms as the one found in Devadasan [T. Devadasan v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179 : (1965) 2 LLJ 560] . A given rule may say that the unfilled reserved vacancies shall not be filled by unreserved category candidates but shall be carried-forward as such for a period of three years. In such a case, a contention may be raised that reserved posts remain a separate category altogether. In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, should not result in breach of 50% rule.”
Thus, it is clear from the above paras that 50% rule for providing reservation is applicable to Carry forward also and even the carry forward in whatever manner it is operated should not result in breach of 50% rule.
e) Shobana Vs. M. Nagaraj :-
It is more clarified in the Constitutional Bench Judgment in M.Nagaraj and ors Vs. Union of India and ors reported in (2006) 8 SCC 212 Paras 93 to 95 at pages 265 and 266 make it abundantly clear that “Carry Forward Vacancies” have to be treated as separate of class of vacancies to be filled in any succeeding year or years to satisfy the above 50% Maximum Rule (as for as Tamil Nadu is concerned 69%) and hence they are reproduced below to understand the issue in question very clear without any doubt:-
“93. The question which remained in controversy, however, was concerning the rule of “carry-forward”. In Indra Sawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] this Court held that the number of vacancies to be filled up on the basis of reservation in a year including the “carry-forward” reservations should in no case exceed the ceiling limit of 50%.
However, the Government found that total reservation in a year for SCs, STs and OBCs combined together had already reached 49½% and if the judgment of this Court in IndraSawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] had to be applied it became difficult to fill “backlog vacancies”. According to the Government, in some cases the total of the current and backlog vacancies was likely to exceed the ceiling limit of 50%. Therefore, the Government inserted clause (4-B) after clause (4-A) in Article 16 vide the Constitution (Eighty-first Amendment) Act, 2000.
By clause (4-B) the “carry-forward”/“unfilled vacancies” of a year are kept out and excluded from the overall ceiling limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-first Amendment) Act, 2000. Quoted hereinbelow is the Statement of Objects and Reasons with the text of the Constitution (Eighty-first Amendment) Act, 2000:

“the constitution (eighty-first amendment) act, 2000 [ Assented on 9-6-2000 and came into force on 9-6-2000]

Statement of Objects and Reasons.—Prior to 29-8-1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of non-availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, were treated as ‘backlog vacancies’. These vacancies were treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme Court of India in its judgment in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217 :

1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] held that the number of vacancies to be filled up on the basis of reservations in a year including carried-forward reservations should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes combined together had already reached forty-nine and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per cent, it became difficult to fill the ‘backlog vacancies’ and to hold special recruitment drives. Therefore, to implement the judgment of the Supreme Court, an official memorandum dated 29-8-1997 was issued to provide that the fifty per cent limit shall apply to current as well as ‘backlog vacancies’ and for discontinuation of the special recruitment drive.

Due to the adverse effect of the aforesaid order dated 29-8-1997, various organisations including the Members of Parliament represented to the Central Government for protecting the interest of the Scheduled Castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make amendment in the Constitution so that the unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) of Article 16 of the Constitution, shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before 29-8-1997.
The Bill seeks to achieve the aforesaid object.

An Act further to amend the Constitution of India
Be it enacted by Parliament in the Fifty-first Year of the Republic of India as follows—

Short title.—This Act may be called the Constitution (Eighty-first Amendment) Act, 2000.
Amendment of Article 16.—In Article 16 of the Constitution, after clause (4-A), the following clause shall be inserted, namely—
‘(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.’ ”
The Constitution (Eighty-first Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . Once it is held that each point in the roster indicates a post which on falling vacant has to be filled up by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies does not arise. Therefore, in effect, Article 16(4-B) grants legislative assent to the judgment in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory [Ed.: For the “replacement theory”, see R.K. Sabharwal case, (1995) 2 SCC 745, in general, and para 118, below.] and within the limitations indicated hereinafter. Then again at the end of Para 116, the Constitution Bench has by clear and categorical words held as follows:-
“116. As stated above, Article 14 enables classification. A classification must be founded on intelligible differentia which distinguishes those that are grouped together from others. The differentia must have a rational relation to the object sought to be achieved by the law under challenge. In IndraSawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] an opinion was expressed by this Court vide para 802 that there is no constitutional or legal bar to the making of classification. Article 16(4-B) is also an enabling provision. It seeks to make classification on the basis of the differentia between current vacancies and carry-forward vacancies. In the case of Article 16(4-B) we must keep in mind that following the judgment in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , the concept of post-based roster is introduced. Consequently, specific slots for OBCs, SCs and STs as well as GC have to be maintained in the roster. For want of a candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category [Ed.: It would seem that this is the “replacement theory”.] . Therefore, by Article 16(4-B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand. Article 16(4-B) is a direct consequence of the judgment of this Court in R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4-A) and 16(4-B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4-A) and 16(4-B) together form part of the same scheme. As stated above, Articles 16(4-A) and 16(4-B) are both inspired by observations of the Supreme Court in IndraSawhney [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and R.K. Sabharwal [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4-A) and 16(4-B). The impugned constitutional amendments, therefore, do not obliterate equality.”
f) Conclusion on Shobana in the light of the two Constitutional Bench Judgments:-
Thus, it is clear that the Carry forward is entirely different from “Current Year’ and both cannot be mingled though the recruitment test for both is common and if both are mingled then the Rule of 50% in the State of Tamil Nadu 69% would get breached and all the appointments made in violation of the maximum limit of Reservation are liable to be quashed as held in Indra Sawhney reported in 1992 Supp (3) SCC 217 at pg 739 para 817.
Now coming back to the judgment of Shobana, if the interpretation given to Section 27(f) is alleged to mean that though there are two different categories of vacancies one ‘Backlog’ and another ‘Current year’, attempted to be filled by a common recruitment, the OC vacancies available only for the current year have to be filled up first and then the backlog vacancies and at last the remaining reserved vacancies of the current year it does not only amount to the merger of both the categories but also would lead to violation of 50% rule or 69% for the State of Tamil Nadu.
Take for example the present Civil Judges case in which Shobana case is ordered to be applied after the publication of the provisional selection list, the Carry forward vacancies separately notified are 92 and the current year vacancies are 153.
If the interpretation given by Shobana case to Section 25 (f) of the Act 2016 is accepted it would amount to the merger of two different types of vacancies totaling 92 + 153 = 245.
Such a merger would cause the breach of 69% as 92 vacancies for the carry forward + 106 vacancies for the reserved categories (153-47) to 198 out of 245 vacancies would cross even 80%. On that ground itself the selection would get vitiated and liable to be quashed as laid down in Indra Sawhney case at para 817 at P739.
In Indra Sawhney case at para 818 at P740 the larger Bench has held categorically as follows:-
“ 818……In our opinion, however, the result of application of Carry forward rule in whatever manner it is operated, should not result in breach of 50% rule.”
The above decision paved the way for other judgements and then the Constitutional Amendments and insertion of Articles 16 (4A) and 16 (4B) the constitutional validity of which was upheld in Nagaraj case reported in (2006) 8 SCC 212 in which it is clearly demonstrated as to how both the “current vacancies” and “Carry forward vacancies” have to be differently dealt with which are already reproduced in the earlier paras. Therefore the serious impact of the dictum in Shobana Case can be explained in nutshell as quoted below:-
i. If the interpretation given to section 27(f) of the Act, 2016 by Shobana judgment is accepted, it would not only breach the maximum percentage rule of 50% or 69% as the case maybe provided for the reservation as the clubbing of vacancies of the both the categories would affect the candidates of all the categories including the OC candidates in the matter of selection for no fault on their part.
ii. Further it would cause confusion in the matter of seniority and recruitment year as the carry forward vacancies are of the earlier year recruitment and the candidates of the current year cannot be made to contend that they are to be treated on par with the carry forward candidates.
iii. It would sometimes make the carry forward vacancies lapsed for the want of candidates as the reserved category candidates would go to OC of the current year if it is directed to be operated.
iv. It would make the selection alive always as the MRC candidates selected under the OC may opt to go to their original reserved category and in that case the next OC Candidate has to be given appointment and the last reserved category candidate has to be excluded in case of MRC opts to go to the reserved category as per the dictum in Constitutional Bench Judgment in Ramesh Ram reported in (2010) 7 SCC 234.
g) Shobana Vs. Division Bench Judgment of Hon’ble Madras High Court confirmed by the Hon’ble Apex Court by a detailed order dealing with the ‘Carry-Forward’ and ‘Current Year’ even by a common recruitment process:-
This position was categorically dealt with by the Hon’ble Division Bench in Raja and ors -vs- Additional Chief Secretary to Government and ors reported in 2019 SCC Online Mad 9129 = (2019) 6 CTC 750. In the elaborate and more scholarly judgment of the Hon’ble Division Bench comprised by of Hon’ble Mr.Justice M.M.Sundaresh as he then was and Teekha Raman JJ subsequently confirmed by the Hon’ble Apex Court by its separate judgment the position of ‘Carry Forward’ is made clear in the following words at para 29.1 of the judgment:-
“29. Backlog Vacancies:-
29.1 Backlog vacancies are meant to be filled up for a particular year but not actually done. If they are not filled up, they can be carried forward along with the vacancies arising in the next year. Merely because, selection has been made for the subsequent year by way of a common process, it cannot be stated that a reserved candidate who comes under the backlog vacancy would also be a part of it. The vacancies should have been filled up for the earlier year. It is only for convenience sake they were filled up subsequently. We may note that by not filling up of the vacancies in the reserved category, the principal object of giving adequate representation would get lost. Thus, a candidate selected in the subsequent year vacancy cannot be made to contend that the candidates selected for the previous year though subsequently, by way of filling up the backlog vacancy are to be treated on par.”
In view of the above judgment also it is clear that the two types of vacancies namely, ‘Carry forward’ and ‘Current Year’ cannot be clubbed together at all and the candidates of the current year vacancies cannot be treated on par with the carry forward vacancies.
If the carry forward vacancies are permitted to be filled first all the reserved candidates scoring more marks would go and occupy the seats meant for their respective community and considerably the cut off marks for the OC as well as the reserved category candidates of current year would get reduced and there may not be any chance for the carry forward at all for the current year making of carry forward vacancies dereserved as some of the vacancies would have been carried forward for the third and final year.
The chances for selection of the real OC Candidates because of the nature of their community would get reduced considerably if Section 27 (f) is in interpreted to mean that the first OC category is to be filled as the MRC (Merit Reserved Candidates) would have got more marks than the OC Candidates would get adjusted themselves under the OC on the principle that the reserved candidates who score more marks can be adjusted under the OC also which won’t be considered for satisfying reservation percentage provided for the concerned Reserved Community.

If the OC vacancies are allowed to be occupied by the Merit Reserved Candidates at first they may later be willing to come to their actual reserved community to which they belong to gain the higher placement in the list then the vacancy caused by them has to be filled with the next OC candidate on merits.

For example, the reserved candidates selected on his/her own merit may be allotted 50th vacancy under the OC because of the higher marks scored by him when the candidate of the same reserved community who scores lesser marks than him may get placement of 2 or 3 or 4 on the basis of his respective communal status under the reserved category. Hence, after selection under OC they may come to the reserved category naturally.

h) Shobana Vs. Ramesh Ram (2010) 7 SCC 234 :-

After getting a berth in the selection under the OC on their own merits the merit listed candidates occupy OC otherwise called MRC may be willing to come back to his own reserved community immediately. In such a case the Constitutional Bench in Ramesh Ram has permitted such MRC candidates to return to their original community status to get an advantageous position in their career. Then the interpretation given to Section 27 (f) would not only become meaningless but also would cause the continuous liability on the Recruitment Agency and the employer to watch whether the MRC candidate returns to their original reserved category on the basis of their option which would lead the inclusion of the next Merit candidate in the OC and the exclusion of the reserved candidate out from the selection. 
That is what is laid down in Union of India -vs- Ramesh Ram and that’s reported in (2010) 7 SCC 234 at para 72 as follows:

“72. We sum up our answers:
(i) MRC candidates who avail the benefit of Rule 16(2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will be offered to general category candidates.

(ii) By operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny him of the chance to be allotted to a more preferred service.

(iv) The reserved category candidates “belonging to OBC, SC/ST categories” who are selected on merit and placed in the list of general/unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16(2) is not inconsistent with Rule 16(1) or Articles 14, 16(4) and 335 of the Constitution.
i) Alok Kumar Pandit (2012) 13 SCC 516:-
The above dictum was followed in Alok Kumar Pandit -vs State of Assam reported in (2012) 13 SCC 516 at para 23 to 25 at page no. 527 and 528.
“23. In view of the above discussion and the law laid down in State of Bihar v. M. Neethi Chandra [(1996) 6 SCC 36] , Anurag Patel v. U.P. Public Service Commission [(2005) 9 SCC 742 : 2005 SCC (L&S) 563] , which has been approved by the Constitution Bench in Union of India v. Ramesh Ram [(2010) 7 SCC 234 : (2010) 2 SCC (L&S) 412] , we hold that the official respondents did not commit any illegality by appointing more meritorious candidates of OBC to Assam Civil Service for which they had given preference and the High Court did not commit any error by dismissing the writ petition.

As a sequel to the above, the questions framed in this appeal are answered in the following terms:

24.1. A reserved category candidate who is adjudged more meritorious than the open category candidates is entitled to choose the particular service/cadre/post as per his choice/preference and he cannot be compelled to accept appointment to an inferior post leaving the more important service/cadre/post in the reserved category for less meritorious candidate of that category.

24.2. On his appointment to the service/cadre/post of his choice/preference, the reserved category candidate cannot be treated as appointed against the open category post.

In the result the appeal is dismissed. The parties are left to bear their own costs.”
j) Tripurari Sharan (2018) 2 SCC 656:-

The same was followed in Tripurari Sharan -vs- Ranjit Kumar Yadav reported in (2018) 2 SCC 656 at page 668 para 18, which runs as follows:

“18. This Court, in Alok Kumar Pandit v. State of Assam [Alok Kumar Pandit v. State of Assam, (2012) 13 SCC 516 : (2013) 3 SCC (L&S) 839] has reiterated that the dictum laid down in Ramesh Ram [Union of India v. Ramesh Ram, (2010) 7 SCC 234 : (2010) 2 SCC (L&S) 412] is applicable only to admission to various services in the UPSC.”

VI. PRELIMINARY EXAM – RESERVATION – SHOBANA CASE NOT APPLIED:-

The notification for the Civil Judge post dated 01.06.2023 is very clear and categorical in terms and Note (ii) of II of clause 12 A) clearly says that the admission of candidates for the Main Examination will be shortlisted at a ratio not exceeding 10 times of the number of vacancies following the rule of reservation.
Assuming that the judgment in Shobana case is beyond any pale of doubt inspite of the Constitutional Judgment referred above in IndraSawhney Case , M.Nagaraj Case , Ramesh Ram and others, the same principle in Shobana Case should have been followed even for preliminary exam also as the Rule of Reservation is applicable even at that stage.
The petitioners at whose instance the interference at the final stage of the selection after the publication of the provisional selection list do not have any locus to say that OC under the current year vacancies have to be filled up first because of their marks.
a) Notification:-
The Clause 2 of the Notification clearly speaks about the Distribution of Vacancies in the following words:-

“2. DISTRIBUTION OF VACANCIES
The Rule of reservation of appointments is applicable for this recruitment. The distribution of vacancies is put up at ANNEXURE (DV).

i) First, the selection will be made for ‘92’ carried forward vacancies. [Section 27 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016].

ii) Secondly, the selection will be made for ‘153’ regular vacancies following the rule of reservation.”

Above all the final provisional selection was interfered on the basis of the Shobana judgment by the Hon’ble Division Bench without even hearing the affected candidates at the first instance and if the said judgment is implemented it would go against the Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

The matter is concerned with the selection to the post of Civil Judge in Tamil Nadu Subordinate Judicial Service and it has reached the final stage and the only argument of the candidates who waited till their non- selection is based on Shobana judgment, which in the light of the Article 16 (4B), the Constitutional Bench Judgments in M.Nagaraj Case, Ramesh Ram case, and the Larger Bench judgment of the Apex Court in Indra Sawhney case is liable to be revisited as the judgment in Shobana Case would cause the applicability of more than 80% of the reservation in any selection which is out and out impermissible being ultra vires and unconstitutional.

Further, it would cause a continuous liability on the employer to watch as to when the MRC fit under the OC in the matter of selection would opt to go to their original reservation category and when they go like that which of the next OC candidate has to be accommodated in that vacancy and accordingly make changes, in view of the Constitutional Bench Judgment in Ramesh Ram case.

Above all, in view of the judgment in Bimlesh Tanwar -vs- State of Haryana reported in (2003) 5 SCC 604 of 3 Judges followed by the Division Bench Judgment of Madras High Court in K.Raja and others -vs- Additional chief Secretary of Government and Others reported in (2019) 6 CTC 750 confirmed by the Apex Court by a speaking order in SLP (c) Nos. 2890 – 2894 of 2016 on 22.01.2016 and again by a detailed judgment in V.Senthur and another -vs- M.Vijayakumar IAS, Secretary, TNPSC reported in 2021 SCC Online SC 846, the question of fixation of seniority on the basis of roster is wiped out and the Hon’ble Apex Court has held categorically that it is on the basis of the marks scored in the selection by the Recruiting Agency.

In view of Ramesh Ram reported in (2010) 7 SCC 234, the filling up OC vacancies first before filling up the Carry Forward Vacancies may help same category of reserved candidates to get berth in the selection under their respective category but that also won’t last long in case the MRC wants to move to their respective reserved category. At that time, the last candidate under that category has to be excluded and the OC candidate scored highest marks but not selected has to be accommodated in the place of MRC under the OC.

Taking note of all the above legal consequences only Section 27 (f) is rightly drafted giving preference to the carry forward vacancies as they are not only of the last year recruitment and they may again remain unfilled in case of the operation of the OC vacancies first before operating the carry forward vacancies.

For example, if the ST candidate who scored more marked is accommodated under the OC as MRC the carry forward vacancy for ST candidate may remain unfilled even for the ‘third’ and final year and get vanished in view of the limitation of 3 years provided for operating the carry forwards vacancies.

In view of all what are discussed above the only way to distribute the vacancies equally on merits under all the categories and protect meritorious candidates is to apply Section 27 (f) of the Tamil Nadu Government Service Act, 2016, without applying the interpretation given in Shobana which is being followed for all the recruitments even in the recent recruitment for Group I services for the State of Tamil Nadu.
VII. CONCLUSION:-

At last but not the least it is absolutely necessary to recall the golden words of Hon’ble Mr. Justice M.M.Sundaresh  of the Hon’ble Apex Court in the Telengana Residential Educational Institution Recruitment Board –vs- Saluradi Sumdetha and another reported in 2024 INSC 176 at para 14 which are quoted below:-

“14. Courts will have to be cautious and therefore slow in dealing with recruitment process adopted by the recruitment agency. A lot of thought process has gone into applying the rules and regulations. Merely because a recruitment agency is not in a position to satisfy the Court, a relief cannot be extended to a candidate deprived as it will have a cascading effect not only on the said recruitment of respondent no.2, but also to numerous others as well. In such view of the matter, courts are duty bound to take into consideration the relevant orders, rules and enactments before finally deciding the case. In this regard, reliance is placed on the decision of this Court in Dalpat AbasahebSolunke v. B.S. Mahajan, (1990) 1 SCC 305 where it was held:
“12. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.” (emphasis supplied)”

Unfortunately, at the instance of the unsuccessful candidates who had filed the writ petition after noticing that they were not selected in the provisional selection for the implementation of the judgment in Shobana case reported in (2021) 4 SCC 686 who do not even fall under the Merit Reserved Category, Provisional Selection was directed to be altered and as a result 15 meritorious candidates who secured more marks are excluded from the Provisional Selection because of the direction to implement the law laid down in Shobana case inspite of the existence of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act 2016. This has happened in the selection for appointment to the post of Civil Judge.

For interfering with the selection of this nature the courts have been consistently holding that the unsuccessful candidates after taking a chance for selection cannot turn around and challenge the selection process after seeing that they are unsuccessful in the selection. The immediate reference is the law laid down in Nagamani case reported in (2009) 5 SCC 515.

Judgment is not a Statute:-

Moreover, the decision rendered by the courts cannot be interpreted like a statute as the decisions of the court are subject to a periodical change on the basis of the particular facts and circumstances of the case. On today,15 meritorious candidates are sent out on the basis of Shobana and if the Larger Bench revisits Shobana following Nagaraj or Indra Sawhney within another 3 to 6 months what will be the position of the candidates now sent out on the basis of Shobana Judgment?

Further, the Constitutional Bench Judgment in Ramesh Ram reported in (2010) 7 SCC 234 has permitted the merit reserved candidates occupying the OC vacancy to switch over to their original reserved category and in case for whom the provisional selection now is interfered the candidates now sent out have to be accommodated in that vacancy caused by them under the OC in view of the Constitutional Bench Judgment in Ramesh Ram Case reported in (2010) 7 SCC 234 which has laid down the law in categorical terms as follows:-
“72. We sum up our answers:

(i) MRC candidates who avail the benefit of Rule 16(2) and adjusted in the reserved category should be counted as part of the reserved pool for the purpose of computing the aggregate reservation quotas. The seats vacated by MRC candidates in the general pool will be offered to general category candidates.

(ii) By operation of Rule 16(2), the reserved status of an MRC candidate is protected so that his/her better performance does not deny him of the chance to be allotted to a more preferred service.

(iii) The amended Rule 16(2) only seeks to recognise the inter se merit between two classes of candidates i.e. (a) meritorious reserved category candidates (b) relatively lower ranked reserved category candidates, for the purpose of allocation to the various civil services with due regard for the preferences indicated by them.
(iv) The reserved category candidates “belonging to OBC, SC/ST categories” who are selected on merit and placed in the list of general/unreserved category candidates can choose to migrate to the respective reserved category at the time of allocation of services. Such migration as envisaged by Rule 16(2) is not inconsistent with Rule 16(1) or Articles 14, 16(4) and 335 of the Constitution.’’

We hope and pray at least to the above extent some of the candidates now sent out due to the implementation of the above Ramesh Ram judgment may get berth again in the present selection.

The candidates now sent out due to the implementation of Shobana do belong to various communal categories and not to the OC category alone. Like that the candidates now pushed in also are of various communal categories due to the implementation of Shobana.

But, Shobana Judgment was pronounced directing the employer to fill the OC vacancies at first and then carry forward vacancies and then again the reserved category candidates of the current year without noting down the serious impact on the entire communal roster of the current year vacancies. That is why Article 16 (4B) and Nagaraj of the Constitutional Bench have declared that both carry forward and current year form two distinctive groups cannot be clubbed together.

In view of what are all said above it is for all concerned to decide whether Shobana is liable to be revisited by the Constitutional Bench or the Larger Bench to put an end to the controversy in the light of Article 16 (4B) upheld by the Constitutional Bench in Nagaraj and Larger Bench in Indra Sawhney. Let us wait recalling the heartfelt title given to one of the stories of Leo Tolstoy, “God sees the Truth but waits.”

UDGMENT IN STATE OF TAMIL NADU VS. K.SHOBANA REPORTED IN 2021 (4) SCC 686 VERSUS RECRUITMENT TO THE POST OF CIVIL JUDGE 2023 AS PER SECTION 27 (f) OF THE TAMIL NADU GOVERNMENT SERVANTS (CONDITIONS OF SERVICES) ACT, 2016 – AN INDEPENDENT ANALYSIS:-I. QUESTION :-

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UDGMENT IN STATE OF TAMIL NADU VS. K.SHOBANA REPORTED IN 2021 (4) SCC 686 VERSUS RECRUITMENT TO THE POST OF CIVIL JUDGE 2023 AS PER SECTION 27 (f) OF THE TAMIL NADU GOVERNMENT SERVANTS (CONDITIONS OF SERVICES) ACT, 2016 – AN INDEPENDENT ANALYSIS:-I. QUESTION :-

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