Gujarat High Court
Prajapati Ishwarbhai Joitaram & vs State Of Gujarat & on 20 March, 2013
Author: Jayant Patel
Bench: Jayant Patel
PRAJAPATI ISHWARBHAI JOITARAMV/SSTATE OF GUJARAT C/LPA/1350/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1350 of 2012 In SPECIAL CIVIL APPLICATION NO. 13495 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== PRAJAPATI ISHWARBHAI JOITARAM & 18....Appellant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ============================================================== Appearance: MR AY KOGJE WITH MR PS CHAUDHARY, ADVOCATE for the Appellant(s) No. 1 - 19 MR PRAKASH JANI, GOVERNMENT PLEADER with MR RAKESH PATEL, AGP for the Respondent(s) No. 1 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 20/03/2013 ORAL JUDGMENT
(PER :
HONOURABLE MR.JUSTICE JAYANT PATEL) The present appeal is directed against the order dated 10.10.2012 passed by the learned Single Judge of this Court in Special Civil Application No.13495/12, whereby the learned Single Judge, for the reasons recorded in the order, has dismissed the petition.
We have heard Mr.Kogje with Mr.Chaudhary for the appellants and Mr. Prakash Jani, learned GP with Mr.Rakesh Patel, learned AGP for the respondents for final disposal of the appeal.
As such, on facts, there is no dispute on the following aspects:
The number of post advertised.
The number of candidates appeared at the physical test.
The number of candidates appeared at the written test.
Therefore, we find that we need not discuss the said aspects in detail.
However, the principal contention raised on behalf of the appellants is that the cut-off marks for the purpose of inclusion in the select list or waiting list should have been fixed by the respondents at the time when the written examinations are held and it is not open to the respondents to fix the cut-off marks at the later stage. It was also submitted that even if the cut-off marks are fixed by the respondents for the respective category of the candidates in the case of horizontal reservation for Ex-Servicemen, in order to accommodate all Ex-Servicemen upto the post advertised, it is required for the respondents to go below the cut-off marks and offer employment for the purpose of selection. The learned counsel in support of his submission, has relied upon the decision of the Apex Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission reported at (2007) 8 SCC 785 for explaining the method and manner of applying the horizontal reservation and the selection of the candidates by application of horizontal reservation.
Whereas, on behalf of the respondents, it has been submitted that initially the cut-off marks were not prescribed for the simple reason that it would be unknown as to how many candidates may pass the written examination. It is only after the written examination is conducted, if the interview is to be taken, normally the number of candidates who may be called for interview, may be three times the number of post advertised and therefore, the cut-off mark is to be treated as that of the person who is last in such list for the purpose of interview. Whereas in case of posts wherein interview is not provided and the selection is to be made on the basis of the performance at the written test, keeping in view the number of vacancies and the available candidates, the cut-off mark is being provided. It was submitted that so far as the appellants herein are concerned, who are in the category of Ex-Servicemen, for which there is reservation of 10% in horizontal manner, initially, there was no relaxation provided. However, subsequently, as the Division Bench of this Court vide order dated 19.12.2012, passed in the present appeal, observed for consideration on the aspect of relaxation, the Recruitment Board has considered the same and relaxation has been granted to the extent of 5% so far as Ex-Servicemen are concerned in comparison to the cut-off marks of the candidates of the respective category, be it General, SC, ST or SEBC, as the case may be. It was submitted that for the purpose of inclusion of the name of any candidate who is falling in the horizontal reservation, such candidate has to meet with the criteria of cut-off marks provided for the respective category subject to relaxation for Ex-Servicemen and if the candidate is to be considered scoring less than the cut-off marks, it would adversely affect the merits of the selection and ultimately efficiency of the candidate concerned and such would adversely affect the administration. It was submitted that the facts and figures which are given by way of the affidavit-in-reply in the present LPA makes it clear that all care has been taken by the respondents to see that all candidates of the reserved category are included in the list, but subject to the requirement that one has scored marks above the cut-off marks provided for such category with the relaxation of 5% for Ex-Servicemen which is in the present case.
The first aspect of providing cut-off marks shows that the recruitment process is governed by the Police Sub-Inspector, Class III Level Cadres Posts (Combines Competitive Examination for Director Recruitment) Rules, 2011, ( Recruitment Rules for short) copy whereof is produced as annexure with the affidavit-in-reply dated 05.11.2012 filed by Shri Ashish Bhatia, Chairman of Recruitment Board. Therefore, so far as the recruitment to the post of Police Inspector is concerned, it would be governed by the aforesaid Recruitment Rules. Rule 4(2)(c) of the Recruitment Rules reads as under:
The candidates who qualify in the written examination shall be called for an interview. The number of candidates called for interview shall ordinarily be three times the number of requisioned.
Therefore, if the number of candidates to be called for interview by express language of the Recruitment Rules should be equivalent to three times the number of post advertised. Only those candidates who stand on merit upto three times the number of vacancies will be required to be called for interview and under these circumstances, the last candidate in the list who secured particular marks at the written test could be termed as qualifying marks/cut-off marks of the candidates for the post of Police Inspector. Therefore, if the respondents have fixed the qualifying marks accordingly keeping in view the said aspects, it cannot be said that there is no power or authority with the recruiting board to provide for qualifying marks. It is hardly required to be stated that fixation of qualifying marks for entering into the select list and/or waiting list is essentially the domain of recruiting agency or the authority conducting the examination. For example, if the number of posts are 50 and the candidates appearing at the written test are 500 and about 300 candidates have passed the written test, that does not mean that all the 300 candidates would be eligible for the purpose of interview. It is open to the recruiting agency or the authority conducting the examination to fix the cut-off marks which is popularly known as qualifying marks for the purpose of entering in the zone of consideration for the purpose of interview. In the present case, it is three times the number of posts advertised. Therefore, it is only after the result of the written test, the recruiting agency may be in a position to know that how many candidates are to be interviewed and the qualifying marks or the cut-off marks may be fixed. Such cannot be termed as beyond the power or competence of the recruiting agency for providing of the cut-off marks or qualifying marks for the purpose of interview.
Same principle would apply even in the case of candidates who are to be included in the select list or waiting list on the basis of the performance at the written examination. This court in exercise of the power under Article 226 of the Constitution, cannot decide the suitability of a particular candidate based on the minimum requirement, but it is to be left to the recruiting agency or authority for such purpose. At that stage, when the cut-off mark is fixed, various criteria are to be considered and the major criteria is the number of post advertised and accordingly the select list and the waiting list are to be prepared while fixing such qualifying or cut-off marks. The relaxation as may be available in law for any reserved category or for a particular category having horizontal reservation may also be considered. In our view, merely because the cut-off marks have been provided or are fixed at the later stage would not result into vitiation of the selection process, more particularly when there is no allegation of any malafide exercise of power or bias in order to see that a particular candidate is included in the select list or a particular candidate is intended to be kept outside the select list by name or the relation of the person having authority in the recruitment board or otherwise. In our view, fixation of cut-off marks and providing of cut-off marks, keeping in view the the number of posts available are essentially in the domain of the recruiting agency. If expressly provided by Rule, such power would be available as per the Rule and if it is not expressly provided in the Rule, such power may be termed as incidental power in the process of selection for any post. Therefore, we cannot accept the contention of the learned counsel for the appellants that merely because the cut-off marks or qualifying marks have been provided at the later stage after conducting of the written test, the same is illegal.
The aforesaid would take us to examine the next contention raised by the learned counsel for the appellants on the method of application of the horizontal reservation provided for Ex-Servicemen. The proceedings of the meeting dated 18.09.2012 shows that for the post of Police Inspector, it is found that in all there were 23182 candidates who were called for written examination, out of which, 19800 candidates appeared at the written examination. After the written examination, it was found that for the oral interview, three times the candidate in comparison to the available posts are to be called and therefore, it was decided that if the merit list in the descending order is to be operated, upto 64% for General category, upto 60.67% for SC category and upto 51.48% for ST category and upto 62.33% for OBC category, the requisite number of the candidates for the purpose of interview would be available. Since we are not concerned with the female category, the said aspect is not required to be dealt with since in the present case appeal, all the persons are male Ex-Servicemen. Further, as observed earlier, in addition to the above criteria fixed for the respective reserved category, there is further relaxation of 5% for Ex-Servicemen and therefore, the consequence would be that for male general category it will be 59%, for SC category it will be 55.67%, for ST category, it will be 49.48% and for OBC category, it will be 58.33%.
So far as the position of Constables are concerned, who are to be included in the list on the basis of performance at the written test and there are no interviews, the cut-off marks provided are as under:
Post Category Cut off for normal candidates Cut off for ex-servicemen candidates Unarmed General 78 73 SC 78 73 ST 67 62 SEBC 78 73 Armed General 74 69 SC 74 69 ST 62 57 SEBC 74 69 SRP General 69 64 SC 68 63 ST 54 49 SEBC 68 63 Conjoint reading of the aforesaid would mean that for the post of PSI, the concerned Ex-Serviceman should have scored above 59% in general category, 55.67% in SC category, above 49.48% in ST category and 58.33% in OBC category so as to get his name included for the purpose of oral interview. However, so far as the post of Constables are concerned, one should have secured marks above the prescribed cut-off marks of Ex-Servicemen in the respective category as per the above referred table.
The attempt to contend that in order to apply horizontal reservation, one has to go below the cut-off marks so as to include the candidates falling in the horizontal reservation, which is Ex-Servicemen in the present case, is ill-founded inasmuch as in the case of application of all horizontal reservation, the requirement would be that one has to meet with the minimum qualifying criteria or the standard provided by way of cut-off marks or otherwise. It is not that for accommodation of any candidate of horizontal reservation, any merit which is less than minimum merit is to be accepted. If such argument is accepted, it would mean that the recruiting authority would be required to go down upto below the passing standard for accommodating the candidate of horizontal reservation. Such is not the purpose nor could be the interpretation for applying horizontal reservation by damaging or adversely affecting the minimum standard or the minimum qualifying marks provided for such purpose in the respective category. In normal circumstances, if any horizontal reservation is to be applied, the candidate concerned has to meet with the merit of the other candidates in the respective category. If only sufficient number of candidates are not available or accommodated, the recruiting agency may go further down but with the condition that in no case, such action of going further down will go below the cut-off marks for the respective category and if any relaxation has been provided, only upto the relaxed limit provided for such purpose.
At this stage, we may refer to the decision of the Apex Court in the case of Rajesh Kumar Daria (supra) and more particularly, the observations made at para 9, which reads as under:
9. 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. 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.) In our view, even after consideration of the above referred observations of the Apex Court, the applicability of horizontal reservation would be the same as observed by us hereinabove and nowhere it has been provided that for operation of the horizontal reservation, the recruiting agency has to go further down below the minimum qualifying marks for the respective category. Under these circumstances, the said decision is of no help to the appellants for canvassing the contention that for applying horizontal reservation, the recruiting agency has to go further down below the qualifying marks provided for the respective category.
It is true that the learned Single Judge has not examined the matter in light of the observations made by us hereinabove and further development pending the present appeal is that for each category, viz., General, SC, ST and SEBC, the qualifying marks have been provided with the further relaxation of 5% for Ex-Serviceman who are appellants herein. Therefore, it appears that the suitable directions deserves to be issued in the present appeal by reversing the order passed by the learned Single Judge for dismissal of the petition.
Hence, it is observed and directed that the respondents shall include all candidates belonging to category of Ex-Servicemen for the post of PSI and Constables (which are subject matter of the petition) in the list for the purpose of interview and/or for the purpose of select list or waiting list by applying horizontal reservation with the relaxation upto 5% in the cut-off marks, but with the clarification that the candidates belonging to the category of Ex-Serviceman would be accommodated in the respective reserved category upto the minimum cut-off marks provided for such category with the relaxation thereof.
The respondents shall be at the liberty to declare the result accordingly of the written test and shall be at the liberty to proceed with the further selection process in accordance with law.
The appeal shall stand allowed only to the aforesaid extent. The order passed by the learned Single Judge shall stand set aside. Considering the facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) bjoy Page 15 of 15