1 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:- The Hon’ble Justice Madhuresh Prasad And The Hon’ble Justice Prasenjit Biswas MAT 344 of 2025 With CAN 1 of 2025 Sk. Tajan Vs. The State of West Bengal & Ors. For the Appellant/Petitioner : Mr. Sabyaachi Chatterjee Mr.Badrul Karim Mr.Kiran Sk. For the State : Mrs Chandreyi Alam, learned AGP Ms. Kakali Dutta. For the Respondent Nos. 3 to 5: Mr. Ranjay De, Sr. Adv., Mr. Basabjit Banerjee Mr. Adityajit Abel Bose. Judgment on : 20.07.2026. Madhuresh Prasad, J.: 1. The present intra-court appeal arises out of an Order dated 18.11.2024, passed by the learned single Judge in the writ proceeding dismissing the writ petition. The appellant was the writ petitioner. He participated in the process of recruitment undertaken by the West Bengal Power Development Corporation Ltd. (hereinafter referred to as 2 the “PDCL” in short) vide a notification No. WBPDCL/Recruitment/2018/09. The petitioner participated in the process for vacancies declared for the post of Operation and Maintenance Supervisor-Probationer (Mechanical) (hereinafter referred to as “Probationer”). 2. The petitioner did not emerge successful. The petitioner thus challenged the recruitment process. He sought direction from the Writ Court upon the respondents to fill up the post in the Unreserved Exempted Category (UR (EC)), giving preference to the petitioner. It was submitted on behalf of the writ petitioner that the petitioner belongs to category OBC-A and since he is also a land-loser he falls under Exempted Category. The petitioner, therefore, was member of OBC-A-(EC) Category. Since there were no suitable candidates under the UR (EC) Category the petitioner should have been considered against the posts under UR (EC) category. In support of his submission he has relied upon decision of the Hon’ble Supreme Court of India in the case of Saurav Yadav and Ors. V. State of U.P. and Ors. Reported in (2021) 4 SCC 542. 3. The learned Advocate for the petitioner submits that the learned Single Judge failed to consider such submission in the proper perspective. The petitioner specifically relied upon a note published at the bottom of the advertisement. “Note:- in case of non-availability of a suitable Exempted Category candidate belonging to UR, SC, ST or OBC (A)/(B) for any of such reserved points as mentioned above, the said 3 vacancies shall be filled up by non-Exempted Category Candidate belonging to UR, SC, ST or OBC(A)/(B) as the case may be as per notification No. 50Emp/1M-25/98dtd. 01st March 2011, Labour Department Govt. of West Bengal.” 4. The respondent, therefore, was legally obliged to consider the petitioner’s candidature as an OBC-A- (EC) category candidate for filling up of UR (EC) vacancies as suitable candidate was not available under the UR (EC) category. 5. The respondents took a stand that there was no vacancy under OBC (EC) category. There is no dispute regarding a fact that roster wise categorisation of the 14 posts advertised was: (i) Unreserved (UR)-04 (ii) UR (EC) - 02. (iii) Scheduled Caste (SC)-02. (iv) Scheduled Caste Exempted Category SC (EC)-01. (v) Scheduled Tribe ST-01. (vii) Other Backward Class OBC (A)-01. (viii) Other Backward Class -OBC (B)-02. (ix)Unreserved Meritorious Sports Persons UR (MSP)-01. Total-14. 6. The petitioner belongs to OBC-A-(EC) category. The recruitment process for the posts in question, did not advertise any vacancy for OBC-A- (EC) category. The petitioner applied with open eyes knowing this fact. It is also submitted that the petitioner cannot be considered against a vacancy meant for UR (EC) as the same is a post to be filled up applying the principles of horizontal reservation The panel was prepared in strict compliance of the ‘Model 100–point- Roster’ of the 4 Government of West Bengal, in terms of the notification No. 50- EMP./1M-25/98 dated 01.03.2011.Respondents also relied upon Volume-2 of the Compendium of Government Orders and Circulars which contemplates filling up of (EC) Category vacancies by non (EC) category candidate of same category in case of non-availability of (EC) Category candidate. The learned single Judge, therefore, rightly held that the petitioner’s candidature of OBC-A- (EC) category could not be considered against the UR (EC) category vacancy. 7. Mr. Chatterjee learned Advocate appearing for the appellant in this connection also relied upon decision of the Hon’ble Supreme Court of India in the case of West Bengal State Electricity Transmission Company Ltd. & Ors. V. Dipendu Biswas and Ors. Reported in (2026) SCC OnLine SC 532. He contend that a less meritorious candidate under the UR(EC) category will have to give way to the claim of more meritorious exempted category candidate from any other social category including OBC-A–(EC) category, to which the petitioner belongs. 8. We have considered the rival submission, gone through the judgment of the learned Single Judge, perused the records and considered the judgments relied upon. We found no dispute that the advertisement in question did not include any vacancy under the OBC-A-(EC) Category candidate. The petitioner applied with open eyes knowing that the advertisement in question did not publish vacancy for OBC- A-(EC) category. Since no vacancy under the petitioner’s 5 claimed category was advertised, there was no option for reservation to the petitioner as an OBC-A-(EC) Category candidate. Therefore, there was no scope whatsoever for the petitioner to claim consideration, much less an appointment against the vacancy reserved for another category, of which the petitioner was not a member. Learned Advocate for the respondent relied upon the report submitted in the writ proceeding, to point out that that vacancy earmarked for UR(EC) Category were already filled up by candidates belonging to UR Category based on their merits. 9. We also find that the petitioner did not make out a case based on his performance in the recruitment process that he obtained weighted marks which would entitle him by virtue of his merit to claim appointment against any vacancy either in UR or in UR (EC) Category. 10. There can be no gain saying that cut off for OBC-A-(EC) Category is bound to be lower than UR (EC) category to ensure benefit of reservation to exempted category of the Social group OBC-A. The petitioner was claiming an appointment against UR or UR (EC) Category, which could be granted to the petitioner only if he had marks higher than marks in OBC-A-(EC) Category. The settled legal proposition emerging in the case of Saurav Yadav (supra) or other judgments of the Hon’ble apex Court, including in the case of Dipendu Biswas (supra) in this regard, is that merit must prevail. Candidate participating against a reserved category post are allowed to migrate to unreserved category post, based on merit, subject to certain 6 terms and conditions as may be available in the recruitment process/rules of recruitment. Such candidate, therefore, is required to secure marks higher than cut off in his reserved category and within the cut off prescribed for the unreserved category, it is only under such circumstance that reserved category candidate, based on merit can migrate to unreserved category. 11. The petitioner did not claim to have secured marks above cut off for UR or UR (EC) Category. Therefore, he cannot be permitted to stake a claim against the vacancy of UR or UR (EC) Category, based on merit. The Judgment of Hon’ble Supreme Court of India in the case of Saurav Yadav (supra), or Dipendu Biswas (supra) therefore, has no application to the facts of the present case. The petitioner cannot derive any benefit from the said judgment, which otherwise is needless to say binding on this Court. 12. Considering the earlier judgments, the Hon’ble Supreme Court in a more recent judgment in the case of Union of India & Ors v. Sajib Roy reported in 2025 SCC OnLine SC 1943, held : “32 On an analysis of the aforecited cases, we summarise as follows: Whether a reserved candidate who has availed relaxation in fees/upper age limit to participate in open competition with general candidates may be recruited against unreserved seats would depend on the facts of each case. That is to say, in the event there is no embargo in the recruitment rules/employment notification, such reserved candidates who have scored higher than the last selected unreserved candidate shall be entitled to migrate and be recruited against unreserved seats. However, if an embargo is imposed under relevant recruitment rules, such 7 reserved candidates shall not be permitted to migrate to general category seats.” 13. We also find that vacancies advertised were filled up from the panel in terms of provisions for Reservation applicable to the recruitment process. We find substance in reliance placed by the respondent of the Compendium of Government Orders and Circulars Volume-2 issued by the State Government. The Compendium contends “Illustrative presentation on the Maintenance of the Register of Appointment,” wherein the issue of various vertical and horizontal reservations has been dealt with elaborately so as to ensure that the constitutional requirement of reservation for various categories is applied uniformly in recruitment/s. For optimising the benefits, the same in unambiguous terms lays down points to be taken into consideration for 100 points roster; one of the points reads: “EC vacancies of different categories can be filled up by non-EC candidates of the same category in case of non -availability.” 14. In view of such stipulation in the Compendium applicable to the recruitment in question, the authorities were obliged to make available the vacancies against (EC) category, to candidate under non (EC) category of the same social group, provided there was no exempted category candidate available in the same social group. Therefore the provisions applicable to the recruitment did not permit filling up of vacancies under the UR or UR(EC) Category by OBC-A-(EC) Category candidate. 8 15. In view of our consideration above we find that there is no reason for this Court to interfere with the decision of the learned single Judge, in the present intra-Court appeal. We find the appeal to be devoid of merit. 16. The appeal is dismissed. 17. Pending Stay Application CAN 1 of 2025 in MAT 344 of 2025 is also accordingly disposed of. 18. Interim order if any stands vacated. (Madhuresh Prasad,J.) I agree. (Prasenjit Biswas, J.)