HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
RESERVED
Case :- WRIT - A No. - 37599 of 2015
Petitioner :- Ashish Kumar Pandey And 24 Others
Respondent :- State Of U.P. And 29 Others
Counsel for Petitioner :- Seemant Singh
Counsel for Respondent :- C.S.C.,A. Krishan,A. Trivedi,Manish Goyal,P.N. Shahi,R.P. Srivastava,Rahul Srivastava
Connected with
Case :- WRIT - A No. - 52593 of 2015
Petitioner :- Pramod Kumar And Anr.
Respondent :- State Of U.P. And 29 Ors.
Counsel for Petitioner :- Seemant Singh
Counsel for Respondent :- C.S.C.
AND
Case :- WRIT - A No. - 39377 of 2015
Petitioner :- Munendra Pratap Singh Rathore
Respondent :- State Of U.P. And 29 Others
Counsel for Petitioner :- Seemant Singh
Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
Heard Sri Seemant Singh, learned counsel for the petitioners, learned Advocate General assisted by Sri C.S. Singh, Additional Chief Standing Counsel, Sri U.P. Singh learned Standing Counsel for the State respondents, Sri P.N. Saxena, Senior Advocate assisted by Sri Vinod Kumar, Sri Manish Goel, Sri Anoop Trivedi and Sri Rahul Srivastava, Advocates appearing for the private respondents.
The connected writ petitions are based on identical facts and law, therefore, on the consent of the parties, the petitions are being decided together.
The facts of petition, being Writ Petition No. 37599 of 2015 (Ashish Kumar Pandey and others Versus State of U.P. and others), is being considered to determine the controversy.
On a specific query, whether all the affected parties are represented, the Standing Counsel would inform that all selected candidates have been put to notice by the State, selections and appointments have been made subject to the final outcome of the petitions. All affected parties are represented. Sri P.N. Saxena, Senior Advocate, is espousing the cause of the private respondents assisted by a battery of lawyers.
The petitioners who are 25 in number, applied pursuant to an advertisement dated 19 May 2011, issued by the Additional Secretary (Recruitment) U.P. Police Recruitment and Promotional Board U.P.1 for filling posts of Sub-Inspector in Civil Police2 and Platoon Commanders in Provincial Armed Constabulary3. The petitioners are assailing the final result declared by the Board on 25 June 2015. Further, seeking a direction to the Board to apply horizontal reservations following the principles laid down in the authoritative pronouncements rendered by the Supreme Court, and incorporated by the State, in the Act and government orders.
The oral argument advanced by the Advocate General is backed by written submissions. He would contend by raising a preliminary objection that judicial propriety would demand, that, since a Division Bench of this Court in a petition being Writ-A No. 40695 of 2005 referred the matter to a larger Bench, inter alia, to determine "what should be mechanism for application of horizontal reservation in respect of various categories provided therein namely women, dependents of freedom fighter, physical handicapped etc. in the State of U.P.?", therefore, the hearing of the present petition be deferred.
The reason for reference, as noted by the Court, was necessitated primarily upon noticing that there being a conflict in the ratio laid down by a Division Bench in Rajeev Kumar vs. State of U.P. And others4, in so far, it lays down in paragraph 12 of the report that "the reservation has to be spread evenly for the representation of female category candidates to the extent of minimum of 20% in each category" which was a rule applicable in the State of Rajasthan providing reservation for women candidates, whereas, in the State of Uttar Pradesh, having regard to the judgments rendered earlier by other Division Benches and the Government Order applicable for the purpose of horizontal reservation, the matter was referred to a Larger Bench. In the opinion of the Court "the issue of application of horizontal reservation has been engaging the attention of this Court time and again, therefore, having regard to the provision of Act, 1993 and Government Orders issued in the matter of horizontal reservation being provided to various categories of persons, namely, women, dependents of freedom fighter, physical handicapped etc. may be resolved finally, in order to avoid further litigation, by the Larger Bench of this Court."
Learned counsel appearing for the petitioners would submit that, it is not being disputed by the State or the Board that quota for horizontal reservation to be filled by special category candidates, which being 20% for women, 5% for dependents of freedom fighters and 2% for ex-servicemen was calculated and worked out applying the principles laid down in Anil Kumar Gupta Versus State of U.P.5 and not as per Rajiv Kumar's case therefore, there being no dispute regarding the number of posts earmarked and distributed, compartment wise, amongst social categories to be filled horizontally, as such, the reference would have no bearing on the present case. The question for determination in the facts of the present case is not the application of the principle of horizontal reservation, but is as to whether the candidates claiming horizontal reservations could have been adjusted enmasse under the open category.
The State is not disputing that the quota prescribed for respective class of horizontal reservation was calculated on the total number of vacancies, thereafter, compartmentalized amongst the respective categories as per their social quota percentage, which is in terms of the binding principle enunciated in Anil Kumar Gupta's case and the Government Order dated 26 February 1999. The point involved in the present case is not the subject matter of reference, the preliminary objection therefore, is rejected.
The Advertisement read with the clauses contained in the instruction booklet would provide that the quota for special/horizontal reservation would be provided in the following manner:
Dependent of freedom fighter: 2%
Ex-Servicemen : 5%
Women : 20%
Clause 3.3 of the instruction would clearly provide that the candidate selected under the special/horizontal reservation would be adjusted in the category to which they belong. The clause is extracted:
3-3 fVIi.kh%&
¼1½ ;fn dksbZ vH;FkhZ ,d ls vf/kd Js.kh esa vkj{k.k dk nkok djrk gS rks mls dsoy ,d gh vkj{k.k dk ykHk feysxk] tks mlds fy, T;knk ykHkdkjh gksxkA
¼2½ {kSfrt ¼gkWfjts.Vy½ vkj{k.k ds v/khu p;fur vH;FkhZ ftl Js.kh ds gksaxs mls mlh Js.kh ds izfr lek;ksftr fd;k tk;sxkA6
The total number of vacancies of SICP and PC (PAC) and the quota under vertical reservation is as follows:-
Sub-Inspectors (Civil Police) (SICP)
Total number of vacancies : 3698
General Category (OC) : 1849 (50%)
O.B.C. Category : 998 (27%)
Schedule Caste Category : 777 (21%)
Schedule Tribe Category : 74 (2%)
Platoon Commander (P.A.C.) (PC PAC)
Total number of vacancies : 312
General Category (OC) : 156 (50%)
O.B.C. Category : 84 (27%)
Schedule Caste Category : 64 (21%)
Schedule Tribe Category : 6 (2%)"
As per the scheme for selection, both for SICP and PC (P.A.C.), the applicants would have to qualify (1) physical standard test (2) preliminary written test (3) physical efficiency test (P.E.T.), (4) main written examination and (5) group discussion.
The petitioners contend that they qualified the examination, detailed herein above, but their names do not find place in the final merit list which was initially declared on 15 march 2015, thereafter, pursuant to an order and judgment dated 29 May 2015 passed in Civil Misc. Writ Petition No. 67782 of 2014 (Saket Kumar Versus State of U.P. and others), the revised final result was declared on 26 June 2015.
The contention of learned counsel for the petitioners is that the principles for applying special/horizontal reservations as determined by authoritative pronouncements of the Apex Court; this Court, and in terms of the provisions of Uttar Pradesh Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 19937 and Government Orders have not been followed, as such, name of the petitioners do not find place in the merit list. It is, therefore, sought to be urged that in the event of special/horizontal reservations being provided as per the provisions of the Act, 1993, and Government Order/Circulars, issued from time to time, the petitioners' would find themselves included in the list of selected candidates.
The compartmentalized breakup of horizontal reservation provided for, in each social category, as worked out by the Board, is as under:
Open Category:
1. Women : 370
2. Dependent of Freedom Fighter: 37
3. Ex-Serviceman : 92
OBC Category:
1. Women : 200
2. Dependent of Freedom Fighter: 20
3. Ex-Serviceman : 50
Scheduled Caste Category:
1. Women : 155
2. Dependent of Freedom Fighter: 16
3. Ex-Serviceman : 39
Scheduled Tribe Category:
1. Women : 15
2. Dependent of Freedom Fighter: 1
3. Ex-Serviceman : 5
The cut off marks of the respective categories i.e. OC/OBC/SC/ST is as follows:
1. Open Category - 328.5
2. OBC Category - 316.0833
3. Scheduled Caste - 271.5
4. Scheduled Tribe -235.4167
19 women candidates having obtained marks above the cut off marks for the open category were selected on merit. No women candidate were selected in any other category, viz. OBC, SC and ST. 242 women candidates out of 261 candidates who could not make it to the select list, therefore, were to be adjusted horizontally. Likewise, candidates belonging to dependent of freedom fighter and ex-servicemen were to be adjusted horizontally, as none made it to the select list on their own merit.
This far, there being common ground, inter-se, parties. There being no dispute regarding the percentage and the number of vacancy falling under the horizontal reservation quota in each social category. The number of candidates belonging to horizontal (special) reservation category that have to be adjusted in the final select list is also not in dispute.
The bone of contention, primarily is that the Board, admittedly, adjusted all such candidates seeking special/horizontal reservation, in the open category, which according to the petitioners is unlawful adjustment. The State supports the principle adopted by the Board.
According to the respondents, the open category is meant to be 'open' to accommodate all candidates seeking special/horizontal reservation, irrespective of their social category, therefore, it is sought to be urged that unless the special reservation quota under the open category is completely exhausted; the remaining candidates, if any, thereafter could be adjusted in their respective category, namely OBC, SC and ST. The principle was followed by the Board for all classes of special reservation i.e. women, dependent of freedom fighter and ex-serviceman. The number of candidates being less than the quota available under horizontal reservation provided in open category, therefore, all candidates were accommodated/adjusted in the open category. None thereafter, were available for adjustment in other category, i.e. OBC, SC and ST.
Per contra, learned counsel appearing for the petitioners would submit that fallacy was committed by the Board deliberately, and with malafide intention to deprive the meritorious candidates their rightful placement in the open category. The candidates seeking horizontal reservation belonging to OBC and SC category were wrongly adjusted in the open category, whereas, they ought to have been adjusted in their quota provided in respective social category. The action of the Board is not only motivated, but purports to take forward the unwritten agenda of the State Government to accommodate as many number of OBC/SC candidates in the open category. All such candidates, therefore, will have to be shifted and adjusted in their respective social category, from bottom of the select list by replacing equal number of male candidates from each category. Thereafter, equal number of meritorious candidates who were wrongly excluded from the open category would have to be reinducted into the merit list i.e. open category. In doing so the petitioners would get selected.
Rival submissions fall for consideration.
The questions pressed for determination is:
1. whether, candidates claiming horizontal reservations, irrespective of their category i.e. OBC/SC/ST, could enmasse be adjusted in the open category;
2. whether the Board, in the event of the candidates falling short of the available vacancy under the quota for horizontal reservation, could have kept the post/vacancies vacant or in the alternative whether the vacant posts can be carried forward to subsequent selection.
Before proceeding to consider the merit and rival contentions, it would be appropriate to examine the statutory provisions and the government orders pertaining to horizontal/special reservation as applicable in the State.
The State Government in exercise of power under Section 46 read with Section 2 of the Police Act, 1861, framed the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008. Rule 6 provides for reservation, inter alia, in terms of Act, 1993. Rule 6 and 29 is extracted:
6. Reservation.- Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other Categories shall be in accordance with the Act and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended from time to time, and the orders of the Government in force at the time of the recruitment. The reservation of National/State level sportsmen shall be in accordance with the Government orders in force at the time of recruitment. It is further provided that physically handicapped persons will not be eligible for police services.8
29. Savings.- Nothing in these rules shall affect reservations and other concessions required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other special categories of persons in accordance with the orders of the Government issued from time to time in this regard.
The Act, 1993 (U.P. Act 4 of 1993) provides special (horizontal) reservation to three class of aspirants (i) dependents of freedom fighters (ii) ex-servicemen (iii) physically handicapped persons. The three classes have been defined in the Act, 1993. Section 3 provides the percentage of vacancies to be reserved for such class. Horizontal reservation is provided at the stage of direct recruitment. Sub-clause (3) would clarify that the reservations would be horizontal by making adjustment of such candidates in their respective category i.e. OC, OBC, SC, ST. Sub-clause (3) of Section 3 is extracted:-
3. (1)...................
(2)............
(3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to [Other Backward Classes of Citizens], category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments.
Act, 1993 does not provide reservation for women. The reservation for women candidates is provided in Government Order dated 26 February 1999, which is applicable on all posts under the State public services at the stage of direct recruitment. The reservation is horizontal/special reservation reserving 20% of the vacancies for women candidates. The principle and methodology for women reservation was reiterated in the subsequent Government Order dated 9 January 2007, clarifying (i) women would mean women resident/domicile of Uttar Pradesh, (ii) 'public service' would mean service defined in Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 19949.
On joint reading of the Government Orders, inter alia, would provide (i) reservation for women is horizontal/special in nature; (ii) women candidates would have to be adjusted in their respective category to which they belong; (iii) women selected on merit would be counted against the number of vacancies reserved for women; (iv) there being no concept of carry forward of unfulfilled vacancies for future selection, therefore, shortfall of women candidates would have to be filled by that many male candidates.
However, in respect of other class of special reservation viz. dependent of freedom fighters, ex-servicemen and handicapped persons, on non-availability of suitable candidates, unfulfilled vacancies would have to be carried forward for two subsequent selections. The principle of adjustment is, however, same i.e. the candidates shall be adjusted in the category to which they belong. Sub-clause (5) of Section 3 of Act, 1993 is extracted:
(5) Where due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried forward for further two selection years, whereafter it may be treated to be lapsed.10
Having noted the statutory provision and the binding government orders, I proceed to briefly survey the binding precedents of the authoritative pronouncements rendered by the Apex Court and this Court.
The Constitution Bench in Indira Shawney vs. Union of India11 explained the concept of vertical and horizontal reservation in paragraph 812:
812. There are two types of reservations, which may, for the sake of convenience, be referred to as `vertical reservations' and horizontal reservations'. 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. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason no to continue that procedure."
In Anil Kumar Gupta's case (supra), the Apex Court explained the procedure to be adopted regarding vertical reservation and horizontal reservations in following terms:
The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.
In Jitendra Kumar Singh vs. State of Uttar Pradesh and others12, Supreme Court while dealing with the selection of SICP and PC (PAC); in paragraph 43 of the report noted the issue before the Court "as to whether relaxation in fee and upper age limit of 5 years in the category of OBC candidates would fall within the definition of "reservation" to exclude the candidates from the open competition on the seats meant for the general category candidates".
Therefore, the issue of horizontal reservation was not before the Supreme Court but while interpreting Act, 1994 and Government Order dated 26 February 1999 on the limited issue, in paragraph 83, the Court noted "it is accepted by all the concerned counsel for the parties that these vacancies had to be filled up by applying the principle of horizontal reservation. This was also accepted by the learned Single Judge, as well as, the Division Bench. This is in consonance with the law laid down by this Court in Indira Shawney case (supra). The aforesaid principle of law has been incorporated in the instructions dated 26 February 1999". In the subsequent para of the report, while considering the Government Order dated 26 February 1999, the Court was of the view that the provisions contained in paragraph 2 and 4 of the Government Order "leaves no matter of doubt that any post reserved for women which remained unfulfilled have to be filled up from amongst suitable male candidates. There is a specific prohibition that the posts shall not be carried forward for future."
The ratio of Jitendra Singh's case is not relevant to the facts of the present case. But what is relevant is that the parties to the lis including the Board, accepted that the principle of horizontal reservation as laid down in Indira Shawney's case and the Government Order dated 25 February 1999 was duly followed by the Board in the selection of SICP & PC (PAC), further, there is a specific prohibition of carrying forward unfulfilled vacancies reserved for women. But in the facts of the present case the Board instead of following the principles as applied by them earlier, have taken a somersault by adjusting enmasse all candidates under the special reservation quota in the open category, irrespective of their category. The Board is unable to explain why they deviated from the principle applied by them in earlier selections while applying horizontal reservation in the present selection.
In Sunaiana Tripathi vs. State of U.P.13, the issue which came up before the Court was "whether horizontal reservation for women provided under the Government Order dated 26 February 1999 is restricted to each of the categories or is general in nature". The Court placing reliance upon Indira Shawney (supra), Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others14, Anil Kumar Gupta (supra) culled out the following principles:
(i). vertical reservations cannot exceed 50% in an year;
(ii). provision of reservation made for women (dependents of freedom fighter and ex-service men) is horizontal reservation;
(iii). the proper and correct course is to fill up general (open) category quota on the basis of merit and then fill up each of the reserved category quotas of Scheduled Castes, Scheduled Tribes, Other Backward Class, and thereafter, find out how many candidates belonging to special reservations/horizontal reservations have been selected on the above basis. If the quota fixed for horizontal reservation is already satisfied, in case it is an overall horizontal reservation, no further question arises and if it is not satisfied, the requisite number of the special reservation candidates under the horizontal reservation have to be taken and adjusted/accommodated against their respective categories by deleting the corresponding number of candidates therefrom;
(iv). if it is a case of compartmentalized horizontal reservation, this is to apply separately to each of the vertical reservations. In this way the entire social reservation quota will be intact and available to all concerned.
The Court held that the government order dated 26 February 1999 providing horizontal reservation for women candidates is relatable to Article 162 of the Constitution of India, thus, would be a reservation prescribed by law. The Court upon examining the scope and ambit of the Government Order, inter alia, noted: (i) Clause (1) provides for reservation in the initial appointment and not in the case of post to be filled up by way of promotion; (ii) Clause (2) provides that reservation shall be horizontal in nature and the reservation provided for women candidates shall be adjusted in the category to which they belong; (iii) Clause (3) provides that if a women candidate is selected on merit, in that case, she will be counted against the reservation quota provided for that post; (iv) Clause (4) provides that in any direct recruitment if requisite number of women are not available, the remaining posts shall be filled by eligible male candidates and shall not be carried forward; (v) Clause (5) provides that a women candidate should fulfill the requisite qualification and eligibility under the relevant service rules.
In the facts of Sunaina Tripathi's case, two women candidates were seeking their induction in the select list on the plea that two women candidates had not joined, the Court repelled the contention by observing "as already mentioned herein before that there are seven women candidates in excess of 20% reservation provided for women under the general category and, therefore, if even two women candidates did not join the post, the petitioner cannot claim any appointment under the reservation quota of general women category".
The women selected on merit in the open category quota, therefore, will have to be counted to determine the number of women candidates to be adjusted horizontally.
The principle was again reiterated by the Supreme Court in Public Service Commission, Uttaranchal vs. Mamta Bist and others15, the question which came up before the High Court was that while assailing the select list on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in the general category and had it been so, respondent no. 1 could have been selected in the reserved category being women of Uttaranchal. The High Court accepted the submission and came to the conclusion that the last women candidate who was given the benefit of horizontal reservation for Uttaranchal women had secured marks higher than last selected candidate adjusted in the general category, thus the said candidate ought to have been appointed against the general vacancy and the respondent no. 1 ought to have been offered appointment giving her the benefit of horizontal reservation for Uttaranchal women. The Apex Court observed that High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidates. The Court placing reliance on the following paragraph of Rajesh Kumar Daria case repelled the contention:
The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.
It was, therefore, mandated that upon adjustment/accommodation if the special category candidate belonging to OBC category scored higher marks than his/her counterpart adjusted in open category, cannot be shifted to open category. Shifting would tantamount to vertical reservation which is impermissible and alien to the concept of horizontal reservation. Horizontal reservation cut across vertical reservation, therefore, there is no concept of 'merit' while making adjustment/accommodation.
In the facts of Anil Kumar Gupta's case (supra), while interpreting the circular of 17 December 1994, providing special reservation, Court observed that the revised notification "contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the OC quota" therefore, the Court admonished the respondents observing "the respondents will be advised to keep in mind the admonition administered by this Court and ensure that the special reservation (horizontal reservations) are kept at the minimum".
The Court, therefore, clarified that special reservation quota cannot be adjusted entirely in the open category.
Having examined the pronouncement on the subject, I am convinced that the principles enshrined therein, regarding determination of the quota for horizontal reservation and the principle of adjustment of such candidates, were incorporated by the State, in letter and spirit, in Act, 1993, Government Order dated 25 February 1999 and subsequently, reiterated in Government Order dated 9 January 2007.
I shall now confine to the facts and figure of women candidates while considering the principle of horizontal reservation and the adjustment to be made thereunder. The principle would apply to other class of special reservation viz. ex-servicemen and dependent of freedom fighter..
Out of 3698 SICP posts, 20% is reserved for women candidates i.e. 740 women candidates, if available, were to be adjusted horizontally. But only 261 women candidates were available, of which 19 women (9 OC and 10 OBC) made it to the select list on merit. The remaining 242 women candidates were, therefore, to be adjusted in their respective category. The category wise social breakup of 261 women candidates is as under:
1. Open Category : 69+9 (selected on merit) =78;
2. OBC category : 163+10 (selected on merit)= 173
3. SC= 10
4. ST =Nil
In the open category, 78 women candidates were to be accommodated, 9 were already in the select list, therefore, 69 women candidates were required to be adjusted in the open category. Similarly, 173 women candidates belonging to the OBC category were available, of which 10 women candidates were selected on merit, therefore, 169 remaining women candidates were to be adjusted in OBC category by dislodging that many number of male candidates from bottom of the select list of OBC category. Similarly, 10 women belonging to SC category were to be adjusted under the SC category.
Learned counsel for the respondents would urge that (i) the women selected on merit should be excluded while determining the number of women candidates to be adjusted in respective category, (ii) open category being 'open' based on merit, therefore, the candidates under special reservation quota should be accommodated/adjusted on the basis of their interse merit in open category, irrespective of their social category, (iii) women are a class, therefore, there can be no discrimination on the basis of their social category, (iv) the principles as sought to be urged, if not followed, would tantamount to reservation in favour of "upper caste" which is not the aim or object of the Constitution.
The argument, in my opinion, is not only misconceived, but malicious and motivated as is being sought to be urged by the petitioners. The principles for horizontal reservation that is being sought to be urged, if accepted, would necessarily be in teeth of the provisions of Act, 1993, Government Orders referred to earlier, and the authoritative pronouncement of the Apex Court. I have no hesitation in observing that both the State and the Board, for the reason best known to them, and the Advocate General, assisted by a battery of lawyers, with impunity have taken a stand against their own Government Orders and the provisions of Act, 1993. When confronted with a query that the Advocate General was arguing not only against the Government Orders but also against the principles which was continuously being followed by the Board, in previous selections regarding horizontal reservation; Sri Singh would contend that the principle adopted by the Board being 'equitable', therefore, the State supports the methodology adopted by the Board. The argument, however, was not supported by any authority, rather the authorities referred, herein above, was relied upon by both the contesting parties in support of their arguments.
I would now proceed to examine the 'equitable' principle that is being sought to be advanced by the respondents, though being in teeth, of Act, 1993 and the Government Orders.
Article 16(4) contemplates social/vertical reservation for SC, ST and OBC, which cannot exceed 50% of the total vacancies. These reservations are not communal reservation, therefore, candidates belonging to SC, ST and OBC may compete for non-reserved / open category post and if they are selected on the non-reserved posts on merit, their numbers will not be counted against the reserved quota for the respective social class. The entire reservation quota shall be intact and be available in addition to those selected under open category.
The principle applicable to horizontal (special) reservation is different and distinct from the principle applicable to vertical reservation. Special reservation provided to women, ex-servicemen etc., under Article 15(3) and 16(1) are horizontal reservation. Horizontal reservation cut across vertical reservation, otherwise, it will be vertical reservation which is specifically prohibited. The person/candidate selected under this quota will be placed in their appropriate category; if the person belongs to SC/ST/OBC category he will be placed in that quota by making necessary adjustments, similarly, if he belongs to open category (OC) he will be placed in the open category. The argument sought to be advanced by the State that all candidates irrespective of their social class (OBC, SC, ST) are 'competing' for the posts in the open category, therefore, on making adjustments of candidates belonging to (OC) category alone, against the open category quota, ignoring the interse merit of other candidates would not only be discriminatory but would tantamount to reservation in favour of 'upper caste'. There is no merit in the argument for the reason, as explained earlier, vertical reservation (social reservation) is not communal reservation, therefore, all candidates irrespective of their social class are free to compete on merit for posts in open category. Upon their being selected, their numbers will not be counted against their social quota. Whereas, special/horizontal reservation is provided to a special class of candidates i.e. women, handicapped person, ex-servicemen etc. irrespective of their social class (SC, ST, OBC). Upon such candidates (special reservation) being selected on merit in open category will necessarily be counted against their special reservation quota to which ever category they belong. The special reservation candidates viz. women, ex-servicemen etc. may constitute a class in themselves, but as a class they do not enjoy the benefit of vertical reservation. They have not been classified as backward class. The plea, therefore, to adjust women, ex-servicemen etc., enmasse in open category treating them as a class would tantamount to conferring vertical reservation which in view of Article 14, 16 read with Article 335 would be rendered void. They would, therefore, have to be adjusted in their social category. For instance, 10 OBC women candidates and 10 SC candidates belonging to ex-servicemen get selected on merit (OC). These 10 OBC and 10 SC candidates would not be adjusted or counted against their vertical (social) quota, they will be in addition to their respective social quota. But, since they belong to a special class i.e. women and ex-servicemen, therefore, while determining the quota of special/horizontal reservation in respect of women (OBC) and ex-servicemen (SC), their numbers will be counted against their quota in their social category. If for instance the horizontal reservation quota for OBC women is 10 then the quota stands exhausted, no further OBC women candidate is to be adjusted. But when the quota is more than 10 say 15 then 5 OBC women candidates would have to be adjusted in the list of OBC candidates, by replacing equal number male candidates. Similar, will be the adjustment in other category.
Open category, as explained earlier, is open to competition on merit alone and is not open to any other mode of accommodation. Quota for special/horizontal reservation is not vertical reservation, therefore, all such persons who could not make it to the select list on merit, but would have be adjusted, only for the reason, that they belong to a special class, would not therefore, entitle them to an en-masse adjustment in the open category. It must be clearly understood that these adjustment are not being made on merit, but for the reason that these candidates belong to a special class, for which horizontal reservation is provided. A similar argument was repelled by the Supreme Court in Mamta Bist case, relying on an earlier judgment rendered in Dharia's case. The argument if accepted would tantamount to providing vertical reservation as explained earlier, which would disturb the social quota which is impermissible in view of Indira Shawney case (supra).
There is no concept of 'caste' or 'upper caste' while providing social reservation. A class of citizen identified and classified being socially and educationally backward, or class of citizen notified SC or ST alone are entitled to social (vertical) reservation. Special class of citizen viz. women, handicapped person, ex-servicemen etc. are provided reservation being a special category, but are not classified as a backward class, therefore, quota for such class of special reservation is not in addition to the quota provided for social reservation. Such class of candidates (special) would necessarily have to be adjusted in their respective social category to which he/or she belongs. Which is done not on merit but for the reason they belong to a special class. In making adjustment in any other manner, as has been done by the Board, would be applying the principle of vertical reservation which is impermissible and illegal. The Board has, therefore, raised the vertical reservation to 77% which being far above the permissible 50% mark, therefore, is illegal and void.
There is merit in the submission of the learned counsel for the petitioners that the conduct of the members of the Board appears not only mischievous but motivated to achieve a calculated agenda by deliberately keeping meritorious candidates out of the select list. The Board and the officials involved in the recruitment process were fully aware of the principle of horizontal reservation enshrined in Act, 1993 and Government Orders which were being followed by them in previous selections of SICP and PC (PAC), but in the present selection they chose to adopt a principle against their own Government Orders and the statutory provisions which were binding upon them.
I am constrained to hold that both the State and the Board have played fraud on the principles enshrined in the Constitution with regard to public appointment.
The questions framed, consequently, is answered as follows:
(i) The candidates claiming horizontal reservation (women, ex-servicemen and dependent of freedom fighter) cannot be adjusted enmasse in the open category but would have to be adjusted against their respective social category i.e. OBC, SC and ST;
(ii) the posts remaining vacant due to the shortfall of women candidates cannot be carried forward to subsequent selection, in view of the specific prohibition in the government order dated 26 February 1999, however, in respect of the other class of candidates i.e. dependent of freedom fighters, ex-servicemen, vacant post shall have to be carried forward for two subsequent selections in terms of sub-section (5) of Section 3 of Act, 1993.
For the reasons and law stated hereinabove, the writ petition deserves to be allowed. The writ petition is, accordingly, allowed with the following directions:
(i) The select list of SICP and PC (PAC) prepared pursuant to the result dated 25 June 2015 to the extent seeking to adjust/accommodating candidates under special category viz. women, ex-servicemen and dependents of freedom fighter in the open category is set aside and quashed;
(ii) all such special category candidates adjusted in open category shall be shifted and adjusted in their respective social category i.e. OBC, SC to which they belong;
(iii) the candidates under special category belonging to open category shall be adjusted/accommodated in the open category;
(iv) all adjustment, directed hereinabove (ii & iii) shall be made from bottom of the list of each social category by replacing equal number of male candidates;
(v) upon adjustment/accommodation, as directed above (ii, iii & iv), the selection and consequential appointment of equal number of male candidates shall stand automatically cancelled/ terminated forthwith;
(vi) in the open category, 262 (340-78) unfulfilled quota of women candidates shall be filled by male candidates on merit, consequently, they shall be sent for training, and if already trained, appointment letter shall be issued;
(vii) in the OBC category 27 (200-173) unfulfilled quota of OBC women candidates, shall be filled by male candidates (OBC) on merit, consequently, they shall be sent for training and thereafter, appointment letter shall be issued;
(viii) In the SC category 145 (155-10) unfulfilled quota of SC women candidates shall be filled up by male candidates (SC) on merit as provided under (vi) and (vii);
(ix) candidates belonging to other special class viz. ex-servicemen and dependents of freedom fighter shall be adjusted in their respective social category in the manner directed hereinabove (ii), (iii), (iv), (v);
(x) the vacancies, if any, remaining vacant upon adjustment as directed above (ix) in respect of posts reserved for ex-servicemen and dependents of freedom fighter would be kept vacant and carried forward to subsequent selection, provided the Board would pass an order in terms of sub-section (5) of Section 3 of Act, 1993;
(xi) Board upon determination, as directed above (x) arrives at a conclusion that the posts advertised for ex-servicemen and dependents of freedom fighter is after two selections, in that eventuality, the vacant posts shall be filled up as directed hereinabove (iii to vii);
(xii) The adjustment/accommodation directed herein above shall be made by (a) drawing the select list on merit of each category i.e. OC, OBC, and SC; (ii) drawing the list of special category candidates to be accommodated category wise. Both the lists and the order passed by the Board as directed at (x) shall be published/notified on the official website.
(xiii) The directions to be complied within three weeks from today.
The State and the Board have not only failed to comply the statutory provisions contained in Act, 1993 and their own Government Orders which was binding upon them being law under Article 162, but have deliberately and willfully deviated from applying the principles of horizontal reservation, which was admittedly followed by the Board in previous selection. Further, the Advocate General has taken a stand not in defense of the Act, 1993 and the Government Orders, but also against the Constitution of India and the binding precedents which, therefore, substantiates the allegation of the petitioners that a deliberate and blatant fraud was played by the members of the Board. The Court, therefore, is constrained to hold that the conduct of the members of the Board is unbecoming of a civil servant, further, they have exposed themselves to civil and criminal consequence. The petitioners are entitled to cost, which is assessed at 10,000/- rupees each. The cost shall be deposited by the first respondent, Principal Secretary, Home with the Registrar General of this Court within four weeks from today, which shall thereafter be released in favour of the petitioners upon usual verification. This is being necessitated for the reason that the petitioners who may be appointed police officers would not be in a position to recover the cost either from the State or the Board. The Public Exchequer cannot be burdened for the deliberate and willful misconduct of its servant, therefore, it is provided that the cost shall be recovered from the salary of the members of the Board and other officials involved in the present selections.
Order Date :- 16.03.2016
K.K.Maurya/S.Prakash
