Reservation - A candidate ranked in general merit can not be counted in reserved category

In Uttar Pradesh, the State Legislature has enacted the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, to provide for the reservation in public services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens. Section 3 (6) of the aforesaid Act, which is relevant for the purpose, reads as follows:-
"3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes.-

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(6). If a person belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1).
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A Division Bench of Allahabad High Court in Special Appeal No.17 of 2010 Shom Raj Shukla Vs. Public Service Commission U.P. and others , decided on 12/01/2010 has held that:
"From a plain reading of the aforesaid provision, it is evident that if a person belonging to any of the reserved categories, gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancy reserved for such category. Therefore, such of the candidate of the reserved category selected on the basis of merit in an open competition with general category, shall not be accounted for for calculating the percentage of reservation……Merely the fact that more than 50% of the persons belonging to reserved category have been appointed, will not mean that reservation had exceeded 50% of the vacancies and had exceeded the same. De jure reservation of more than 50%, ordinarily may not be permissible, but de facto it may be possible that more than 50% of the posts are filled by members of the reserved category on merit, as had happened in the present case.

The court observed that appointment of a large number of candidates belonging to the reserved category in the general category on merit, may be a ground to reconsider the policy of reservation, but it cannot be said that those members of the reserved category who have been appointed on merit, in the face of the language of Section 3 (6) of the Act, 1994, have to be counted amongst the members of the reserved category."

Gratuity can not be taken away by contract

In CIVIL APPEAL NO. 1478 OF 2004 Allahabad Bank & Anr. v. All India Allahabad Bank Retired Emps. Assn. decided on 15/12/2009 the Supreme Court held that:
Gratuity is a statutory right; it can not be taken away by agreement. Employees having exercised their option to avail benefits under pension scheme are not stopped from claiming benefit under provisions of Payment of Gratuity Act, 1972. An establishment (Allahabad Bank in this case) is under statutory obligation to pay gratuity as provided for u/s. 4 read with s.14 of the Act . there is no escape from payment of gratuity under the provisions of the Act unless the establishment is granted exemption from the operation of the provisions of the Act by the appropriate Government.Provisions of Act prevail over all other enactment or instrument or contract so far as payment of gratuity is concerned. The right to receive gratuity under the provisions of the Act cannot be defeated by any instrument or contract.

The Supreme Court relied on Municipal Corporation Delhi v. Dharam Prakash Sharma & Ors. (1998)7SCC 221, where it was held that: "The mere fact that the gratuity is provided for under the Pension Rules will not disentitle him to get the payment of gratuity under the Payment of Gratuity Act. In view of the overriding provisions contained in Section 14 of the Payment of Gratuity Act, the provision for gratuity under the Pension Rules will have no effect.