Reserved-category toppers must count as unreserved at the screening stage, Allahabad High Court holds
Justices Rajan Roy and Manjive Shukla set aside Condition 10 of a UPPSC advertisement and gave the Commission three months to revisit its 2020 office memorandum on migration.
A reserved-category candidate who outscores the unreserved cut-off must be counted in the unreserved list at the point where merit is first measured, and not held back until the final selection. The Allahabad High Court at Lucknow has set aside the condition in a Uttar Pradesh Public Service Commission advertisement that deferred that adjustment to the end of the process, declared that the Commission's office memorandum of 9 January 2020 does not apply to the recruitment in question, and directed the Commission to revisit that memorandum within three months against Articles 14, 16, 309 and 320. The State Government was given the same three months to lay down a policy. The judgment was delivered by Justice Rajan Roy for a Bench with Justice Manjive Shukla.
A two-stage selection, and a clause about the end of it
The Commission advertised various posts on 22 December 2025, among them the post of Swasthya Shiksha Adhikari. Recruitment to it runs in two stages only: what the Commission calls a preliminary or screening test, and then an interview. There is no other examination.
Condition 10 of the advertisement read that candidates of reserved categories would be adjusted against the unreserved category in the final selection only if they had not availed any benefit or concession in the qualifying standard at the stage of the screening examination. It reproduced a stipulation the Commission had adopted by an office memorandum of 9 January 2020, under which migration from the reserved to the unreserved or open category on the basis of marks secured on merit would be done only at the stage of final selection and not at the preliminary stage.
Seven candidates applied for the post and then, before sitting the selection, filed a writ petition. They sought quashing of the memorandum and of Condition 10 to the extent that it confined adjustment to the final selection, pleading that it was arbitrary, contrary to the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and violative of Articles 14 and 16. They also asked for a direction that the recruitment be conducted by treating every candidate who secured marks equal to or above the unreserved cut-off as part of the unreserved category at the stage where merit is first determined, including the shortlisting or screening after the written examination.
The Single Judge called it premature
A Single Judge dismissed the petition on 1 May 2026, holding that the petitioners had no right to challenge the notification or advertisement at that stage, that the petition was premature because it remained a contingency whether the situation complained of would arise at all, and that it rested on apprehension. While dismissing it as premature, the Single Judge also observed that it was devoid of merit as no actionable cause had arisen.
The Division Bench had already recorded its disagreement in a detailed order of 13 May 2026, which it reiterated and affirmed in the final judgment. The memorandum and Condition 10, both prohibiting treatment of a reserved candidate as open category at the preliminary stage and permitting it only at the final stage, were specifically under challenge. The Commission had already taken that decision, so the recruitment would obviously be held on those terms, and there could be no presumption that the Commission would act contrary to its own decision and advertisement. Conditions of recruitment can be challenged if they are contrary to law and the Constitution. The petitioners, the Bench held, had approached the writ court at the right time — before the examinations were held — which would avoid complications later. By that order the Bench stayed both Condition 10 and the 2020 decision.
The Bench had wanted to remand the matter. Counsel for the Commission asked to file a counter affidavit instead, and by an order of 17 July 2026 the writ petition was tagged with the appeal so that both could be decided together, with the interim order continuing. At the final hearing counsel for the State and the Commission argued the merits so that the appellate court could decide them — a course the Bench called reasonable, since a remand in a recruitment matter would consume time and the recruitment would meanwhile remain stalled by the interim order. Senior Counsel Mr Jaideep Narain Mathur appeared for the Commission, assisted by Mr R.K. Upadhyaya.
What the Supreme Court has settled about migration
The Bench worked through the line of authority on when a reserved-category candidate may migrate to the open category. Section 3(6) of the Act of 1994 entitles a reserved-category candidate to be considered in the open category on merit, and contains no prohibition or embargo on such inclusion. Section 8 of the same Act provides concessions — in fee, age and number of attempts.
In Jitendra Kumar Singh, the Supreme Court held that concessions falling within Section 8 cannot be said to be relaxations in the standards prescribed for qualifying in the written examination. The Bench read the five principles distilled in Chaya as the governing statement: a concession in a qualifying examination merely enables a candidate's entry into the zone of consideration and is not a relaxation in the qualifying standard where merit is determined solely on the main examination and interview; such a concession merely creates a level playing field; a reserved candidate who does not meet the essential eligibility criteria cannot migrate; migration by a candidate who has availed a concession in a qualifying examination depends on the recruitment rules or the employment notification, and is permissible if they permit it; and it is equally permissible where the rules or notification are silent or do not expressly prohibit it.
The Bench noted that the concession or relaxation contemplated may be of two kinds — in fees and age, or in the minimum qualifying standard — with Chaya falling in the latter category and Jitendra Kumar Singh in the former. Chaya itself concerned a five per cent relaxation in the qualifying teacher eligibility test; the Supreme Court held migration permissible because inter se merit for appointment had to be determined solely on performance in the main examination, where no relaxation had been given, and none had been granted in educational or preferential qualification.
It also relied on Deependra Yadav v. State of Madhya Pradesh, where a service rule prescribing the same kind of deferred adjustment had been introduced by amendment and then withdrawn during litigation. The Supreme Court observed there that the rule patently harmed the interests of reserved-category candidates, because even meritorious candidates from those categories who had availed no reservation benefit or relaxation were still treated as belonging to those categories and were not segregated with meritorious unreserved candidates at the preliminary examination result stage. Saurav Yadav v. State of U.P., decided by a three-judge Bench, and Sajib Roy were also considered.
The decision the Bench found decisive was Rajat Yadav, which it held the present case to be squarely covered by, noting that the earlier decisions the Commission relied on had themselves been considered there. It rejected the argument that Rajat Yadav had no application because of its date, holding that all judgments apply retrospectively unless specifically made prospective, and that in any event the screening test in this recruitment had not yet been held.
The Commission's case changed as it was argued
The most consequential part of the hearing was a shift in the Commission's own position. Its counsel initially took the stand that the embargo in the memorandum applied where a reserved candidate claimed or was granted relaxation in age or fee, so that such a candidate could not claim inclusion in the unreserved list. During argument he changed that position, the Bench recording a volte face: for recruitments conducted by the Commission, relaxations in fee and age limit under Section 8 of the Act of 1994 are not treated as an impediment to inclusion or migration, and the word “relaxation” in the 2020 memorandum carries a different meaning from the concessions in Section 8.
What the memorandum meant, he submitted, was relaxation in minimum qualifying or eligibility standards and norms, not fee, age or number of attempts. Asked what the expression used in the Hindi memorandum signified, he said it meant minimum qualifications such as educational qualification and qualifying cut-off marks, and pointed to the Commission's own counter affidavit. The Bench observed that this was in line with what the Supreme Court had said in Jitendra Kumar Singh and in Chaya.
On that statement, two conclusions followed. The memorandum does not apply to concessions in age or fee under Section 8. And it does not apply to this case at all, because it was nobody's case that these appellants had claimed or availed any relaxation in the minimum qualifying standard — there was no such averment in the Commission's counter affidavit, and a contrary assertion in the appellants' rejoinder. Migration here was to take place only if a reserved candidate had secured more than the general-category cut-off in the screening test. Counsel added that the memorandum applied only to recruitments involving all four stages — preliminary examination, main examination, interview and screening test — and not to a two-stage selection such as this one.
Whose policy is reservation to make?
The Bench then raised a question the Commission had not asked itself: whether it had the authority to decide matters pertaining to reservation at all.
Article 320(4) provides that consultation with the Public Service Commission is not necessary in matters relating to Article 16(4) and Article 335. What measures to provide for reservation, consistently with the maintenance of efficiency of administration, is therefore a matter of policy for the State Government. The Bench applied State of Punjab v. Manjit Singh, where the Supreme Court dealt with a Commission that had fixed separate minimum qualifying cut-offs for general and Scheduled Caste candidates in the medical services to secure what it considered a minimum standard of efficiency. The Court there held the Commission is independent and autonomous and must act without influence, but the State Government is competent to lay down qualifications, frame rules and take policy decisions not contrary to law; and where no special qualification or standard of efficiency over and above the eligibility criteria has been prescribed by the rules or by the State, it is not for the Commission to impose an extra standard it thinks necessary. The Commission's stand in that case — that being an independent body not subservient to the Government it could lay down minimum efficiency standards, including in matters falling under Article 335 — was held erroneous.
Reading those provisions together, the Bench held that the conditions of service and recruitment, including the reservation policy applicable in the State, lie in the domain of the State, and the Commission cannot encroach on it. The Commission's power extends to the procedure or method of recruitment, and even that is subject to the enactments, rules and government orders applicable to the particular service or post, since different services and cadres in different departments have their own rules prescribing conditions of recruitment, including reservation.
The Commission had sought to defend the memorandum under Section 11 of the U.P. State Public Service Commission (Regulation of Procedure) Act, 1985. That section, the Bench held, empowers it only to make rules not inconsistent with that Act for regulating its own procedure; the Act, as its long title shows, deals with the procedure of the Commission and the conduct of its business, and cannot be read beyond Article 320 or to confer a jurisdiction the Constitution does not confer. No enactment of the kind contemplated by Article 321 for Uttar Pradesh was brought to the Bench's notice.
Having found the memorandum inapplicable on the facts, the Bench stopped short of a conclusive ruling on the Commission's jurisdiction. It held instead that a blanket decision of that kind, which ignores the differing fact situations and rule positions, is clearly unreasonable and can lead to unnecessary litigation, and it left three questions for the Commission to answer: whether it has the power to impose such conditions on reservation policy through its memoranda of 18 December 2009 and 9 January 2020; whether an omnibus blanket memorandum of that kind is otherwise sustainable; and whether it can be applied to all recruitments mechanically, without reference to the specific conditions of recruitment prescribed in the rules of the department concerned. It added that it would be better for the State Government to frame a specific and comprehensive policy, which it is competent to do under Article 16(4) and the Act of 1994, so that such issues do not arise in future.
No estoppel from having applied
The Commission objected that the petition was not maintainable because the candidates had applied between 27 December 2025 and 9 January 2026 under the very advertisement whose Condition 10 they later challenged.
The Bench rejected that. It applied Dr. (Major) Meeta Sahai v. State of Bihar, where the Supreme Court held that a candidate who agrees to participate in a selection process accepts the prescribed procedure and not the illegality in it, that an allegation of misconstruction of statutory rules and the discriminatory consequences flowing from it cannot be condoned merely because the candidate took part, and that a candidate may in fact lack locus to assail an incurable illegality unless he or she participates. It also referred to Raj Kumar v. Shakti Raj, which considered Madan Lal v. State of J&K on the inapplicability of estoppel, acquiescence and waiver. Because what is at stake is the right of fair consideration in recruitment to posts under the Government, referable to Articles 14 and 16, the Bench held there is no question of estoppel — an objection also considered and rejected in Rajat Yadav — and that there was no impediment to the maintainability of the writ petition.
Order
The Bench declared that the office memorandum of 9 January 2020 does not apply to the recruitment at hand, and set aside Condition 10 of the advertisement of 22 December 2025 so far as the post in question is concerned. It directed the Commission to consider the applicability of Condition 10 to the other posts it has advertised and to take an early decision to avoid further litigation.
The Commission was further directed to revisit the memorandum in its application to recruitments it conducts, taking a considered decision within three months after scrutinising the law, keeping in mind the test of constitutionality on the anvil of Articles 14 and 16 and of Part XIV, especially Articles 309 and 320, so that future recruitments are not entangled in further litigation. The Bench noted that the Commission recruits for various services and posts governed by different rules and orders. The State Government was directed to consider and clarify its stand by laying down a specific policy in this regard, also within three months.
As for the candidates before it, the Bench held that if they secure more marks than the minimum cut-off for the unreserved category in the screening test they will have to be included in the unreserved category, and the recruitment shall be held accordingly in terms of Rajat Yadav. The special appeal and the writ petition were allowed in those terms.