Orissa High Court
Bishnu Prasada Dash vs Governor Reserve Bank Of India And ... on 20 April, 2016
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
WP(C) No.15104 of 2015
In the matter of an application under Article 227 of the Constitution
of India.
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Bishnu Prasada Dash .... Petitioner
Versus
Governor, Reserve Bank of
India & others .... Opposite parties
For Petitioner ... In person
For Opp. Parties ... Mr. D. N. Mishra, Advocate
1 to 3
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 05.04.2016 : Date of judgment: 20.04.2016
Dr. A.K.Rath, J In this writ petition, the petitioner has prayed, inter alia,
for a direction to the opposite parties to re-draw the select list of
general candidates by including his name in reserve category ex-
serviceman and to appoint him in the post of Assistant in the Reserve
Bank of India, Bhubaneswar.
2. Shorn of unnecessary details, the short facts of the case
of the petitioner are that the Reserve Bank of India issued an
advertisement, vide Annexure-1, in the employment news to fill up
the posts of Assistant. Twenty five posts of Assistant were earmarked
for Bhubaneswar region out of which, one was reserved for disabled
ex-servicemen and three posts for ex-servicemen (normal). The
2
educational qualification for the posts of Assistant was Bachelor's
Degree in any discipline with a minimum of 50% marks (pass class
for SC/ST/PWD candidates). For ex-servicemen, a candidate should
be a graduate from a recognized University or should have passed the
matriculation or its equivalent examination of the Armed Forces and
rendered at least 15 years of defence service. The selection was to be
made on the basis of candidate's performance in the written
examination as well as interview. The petitioner being eligible applied
for the same. He was the only ex-serviceman candidate and called for
the interview. But then, he was not selected. He applied for the
information under the RTI Act. The same was provided to him on
17.4.2015, vide Annexure-4, wherein it was indicated that the reservation for ex-servicemen was horizontal and included in the vacancies for various categories. The recruitment of ex-servicemen in each recruitment drive was made taking into consideration the general policy of reservation, wherein the upper ceiling is 50%. The select list of the Assistants of the year 2014 annexed thereto indicates that the general candidates who had secured 189 marks had been selected. Pursuant to his complaint dated 12.1.2015, he got an e-mail message, vide Annexure-5, wherein it is stated that the reservation for ex-servicemen was horizontal and included in the vacancies of various categories. Since ex-servicemen were getting extended relaxation in age, qualification etc., they had to be included in the "select list" of categories (UR/SC/ST/OBC) to which they belonged to, provided, they could be included in such list in the normal course. He made an appeal to the opposite party no.1. While the matter stood thus, he received the letter dated 9.6.2015, vide Annexure-7, which indicates that the marks secured by him were less than the marks scored by last candidate selected in the general 3 category. Therefore, as per the extant policy followed by the bank, he was not selected in the final list. The Bank was guided by the OM 36012/58/92 Estt(SCT) dated 01.12.1994 issued by Government of India. It provides that horizontal reservations cut across vertical reservation (in what was called interlocking reservation) and the persons selected against these reservations had to be placed in the appropriate category. Even after providing for these horizontal reservations, the percentage of reservation in favour of backward class of citizens should remain the same. Thus only those ex- servicemen who qualify in the respective categories were selected. With this factual scenario, this writ petition has been filed.
3. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties 1 and 2. It is stated that in order to carry out its functions effectively, the Bank recruits different classes of employees such as Class I (Officers), Class II (Personal Assistants which is now abolished), Class III (Assistants/Word Processor Assistants) and Class IV (Subordinate Staff) from time to time. The recruitment in Class I and Class III is centralised, while recruitment of Class IV staff is done at Regional Office level. The Bank follows the constitutional principles and guidelines on reservation issued by Department of Personnel and Training (DoPT), Government of India in all recruitments at central and regional office level. The Bank maintains rosters for reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes (Vertical Reservation) as well as for Physically Handicapped candidates (Horizontal reservation).
4. Heard the petitioner in person and Mr. D.N. Mishra, learned counsel for the opposite party.
5. The petitioner contended that pursuant to the advertisement issued by the Reserve Bank of India to fill up the posts 4 of Assistant in Bhubaneswar region, he being an ex-serviceman and otherwise eligible applied for the same. He came out with flying colours in the written as well as viva-voce test. He was the only candidate in ex-servicemen category. But then, the opposite parties committed a manifest illegality and impropriety in not appointing him to the post. He further submitted that in the merit list prepared for the general category, opposite party no.4 has secured 189 marks and he has secured 180 marks. He being the reserve category candidate ought to have been selected in place of opposite party no.4. He further submitted that special reservations are made for ex- servicemen. The reservations have to be adjusted within the reserved and unreserved categories and the percentage of posts reserved under the horizontal reservations have to be provided for.
6. Per contra, Mr. Mishra, learned counsel for the opposite parties 1 to 3, submitted that the Bank had issued a notification in July 16, 2014 for recruitment of Assistant in various offices of the Bank. For selection to the posts, a competitive Online Examination was conducted in September, 2014. The result of the said Examination was declared on 31 December 2014 and different cut off marks (on merit and meeting the benchmarks set by RBI) were declared for General, Scheduled Caste (SC), Scheduled Tribe (ST), Other Backward Classes (OBC) and Persons with Disability (Orthopedically Handicapped) categories for being called for interview at various offices of the Reserve Bank. The cut-off mark for general category candidates at Bhubaneswar was fixed at 159. After interview, the final selection was made as per the merit lists prepared on the basis of total scores obtained by the candidates in the Online Examination and the Interview. The petitioner belongs to ex- serviceman (normal category). He secured 180 marks in the 5 examination. Being the only ex-serviceman candidate he was called for the interview. The general category candidates were selected upto 180 marks. The reservation for ex-servicemen was horizontal reservation and included in the vacancies for various categories. The last candidate belonging to General Category secured 189 marks in total and was selected.
7. The principle of horizontal reservation has been succinctly stated in Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217. In paragraph 95, the apex Court held thus:
"95. ....all reservations are not of the same nature. 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 S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) 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."
8. On a survey of earlier decisions, the Supreme Court in the case of Rajesh Kumar Daria v. Rajasthan Public Service, AIR 2007 SC 2137 enumerated the principle of horizontal reservation and the manner of filling up the vacancies. The same is quoted hereunder:
"5. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal 6 reservation and the manner of its application. In Indra Sawhney v. Union of India [1992 Supp.(3) SCC 217], the principle of horizontal reservation was explained thus (Pr.812) :
"all reservations are not of the same nature. 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 the quota 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."
A special provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P 1995 (5) SCC 173] thus :
"The proper and correct course is to first fill up the Open Competition 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 overall 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 7 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.) [Emphasis supplied]
6. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : "For SC : 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus: "For SC: 21 posts for men and 9 posts for women, in all 30 posts". Obviously, there is, and there can be, no reservation category of 'male' or 'men'.
7. 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 v. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritest R. Sah v. 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 8 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. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]
9. On the anvil of the decisions cited supra, the case of the petitioner may be examined. The petitioner is the only ex-serviceman candidate. He was selected in the written as well as viva-voce test. He secured 180 marks. His case was denuded on the ground that opposite party no.4 secured 189 marks.
10. The principle enumerated in Rajesh Kumar Daria applies to the reserved category candidates belonging to ex-servicemen. Since the petitioner was the only ex-serviceman candidate and selected, he ought to have been selected by deleting the corresponding number of candidates from the bottom of such list relating to other ex- serviceman so as to ensure that the final ex-serviceman candidate contains one ex-serviceman candidate.
911 In the wake of the aforesaid, the writ petition is allowed. Opposite parties are directed to re-draw the select list of Assistant by including the name of the petitioner and appoint him in the said post. No costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack.
The 20th April, 2016/Pradeep.