Gujarat High Court
Aasal vs State on 21 September, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/11210/2010 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11210 of 2010
=========================================================
AASAL
MINALBEN LAXMANBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
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Appearance
:
MR
HR PRAJAPATI for
Petitioner(s) : 1,
MR AL SHARMA AGP for Respondent(s) : 1,
None
for Respondent(s) : 2,
MR VC VAGHELA for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 21/09/2010
ORAL
ORDER
1. Heard learned advocate Mr.H.R.Prajapati for petitioner, learned AGP Mr.Sharma for respondent No.1 and learned advocate Mr.V.C.Vaghela for respondent No.3 on caveat.
2. In present petition, petitioner has challenged order passed by appellate authority in Appeal No.53-A/2010 dated 31.8.2010 / 3.9.2010 whereby application made by respondent No.3 has been allowed and confirmed the order passed by District Collector, Banaskantha dated 26.2.2010 subject to modification made in aforesaid order by appellate authority.
3. According to facts of this case, the respondent No.2 District Collector, Banaskantha issued an advertisement inviting applications for the allotment of fair price shop in village Gambhirpura on 2.1.2010. In aforesaid advertisement, in village Gambhirpura, Taluka-Vav, general category fair price shop is available and fair price shop is not reserved for either woman / schedule cast and schedule tribe or SEBC. According to advertisement, eligibility has been fixed in favour of local educated unemployed person and self sahayak juth which belonging to local village Gambhirpura and in case if local educated unemployed person or self sahayak juth is not made available, then as per prevalent policy and Rules, applications made by local co-operative society can be taken into consideration. Therefore, this advertisement has been issued for rural area being a fair price shop in scheme of Pandit Dindayal Grahak Bhandar and this advertisement has been signed by District Collector, Banaskantha and District Supply Officer, Banaskantha at Palanpur.
4. In pursuance to advertisement issued by respondent No.2, petitioner had applied for allotment of fair price shop along with all necessary documents and thereafter, on 26.2.2010, order has been passed in favour of respondent No.3 by respondent No.2 allotting fair price shop in his favour. Therefore, appeal was preferred by petitioner to respondent No.1 which is registered as Appeal No.23 of 2010, challenging order of granting fair price shop in favour of respondent No.3, which came to be allowed on 9.6.2010 while setting aside order dated 26.2.2010 passed by respondent No.2.
5. Thereafter, SCA No.7591 of 2010 was filed by respondent No.3 challenging aforesaid order passed by State Government dated 9.6.2010 before this Court wherein this Court has passed an order on 2.7.2010, which is quoted as under :
1. Heard learned advocate Mr. VC Vaghela on behalf of petitioner, learned AGP Mr. Amit Patel appearing for State.
2. The petitioner has challenged order passed by State of Gujarat dated 9/6/2010, where an application made by respondent registered as No. 23/2010 has been allowed and order passed by District Collector, Banaskantha dated 26/2/2010 has been set aside.
3. Learned advocate Mr. Vaghela pointed out to this Court that petitioner is having educational qualification of B. A., B. Ed. and respondent is having Educational qualification B. A. with C.C.C. and continued study in M. A. This facts has been considered by authority in light of policy decided by State dated 21/3/2007.
4. Learned advocate Mr. Vaghela submitted that authority has considered percentage of petitioner while taking into account percentage of B. A. examination, not B. Ed. Examination. The respondent is having 63.44% in B. A. examination and petitioner is having 77% in B. Ed.
Examination. That has not been considered and ignored by authority. According to his submission, B. Ed is also considered to be Graduate decree which was possessed by petitioner.
5. In light of this facts, this aspect after perusing order, not raised by petitioner before authority. Therefore, that question has not been considered by authority. For that, petitioner made approach to respondent authority Additional Secretary respondent no. 1 by filing detailed application along with documentary evidence within a period of 15 days and supply copy of such application with all documents to respondent.
6. After receiving such application from petitioner, it is directed to respondent authority to reconsider matter in light of documents and application made by petitioner after giving reasonable opportunity of hearing to both parties and considering recent government policy and to pass appropriate order in accordance with law within a period of six weeks from date of receiving copy of present order and to communicate both parties.
7. In view of above observation and direction, present petition is disposed of without expressing any opinion on merits.
6. In pursuance to order passed by this Court on 2.7.2010 with a direction to appellate authority to consider representation which will be made by respondent No.3 and thereafter, to pass appropriate reasoned order after giving reasonable opportunity of hearing to both parties. Accordingly, appeal has been registered being Appeal No.53-A/2010 before respondent No.1 and thereafter, by aforesaid order which is under challenge, appellate authority has allowed appeal preferred by respondent No.3 and confirmed order passed by respondent No.2 dated 26.2.2010. Therefore, present petition is filed.
7. Learned advocate Mr.Prajapati vehemently raised contention before this Court relying upon policy / government resolution dated 2.8.2004 and submitted that Item No.5.1.6 (Page-16) suggestive of fact that fair price shop in respect to each category, 10% shop must have to be given priority to educated unemployed woman. That special priority has been given by State of Gujarat to such widow those who are getting relief from State Government. Relying upon aforesaid condition which gives priority to woman in each category, he relied upon page-42 in respect to Vav taluka, in all 26 fair price shops have been newly opened or created in pursuance to Government Resolution dated 2.8.2004. Out of that, 10% comes to 3 shops which are available to woman educated unemployed and not a single shop has been sanctioned which is to be remained pending and no decision has been taken whether out of 26 fair price shops, 3 fair price shops which required to be sanctioned in favour of woman, that has not been sanctioned by State Government which required to be sanctioned. But no decision has been taken by State Government for sanctioning 3 fair price shops in favour of educated unemployed woman. But he emphasized that in respect to each category, the priority must be given to woman candidate which has not been given in present case and these facts and Government Resolution and Condition No.5.1.6 has not been considered by appellate authority and therefore, order passed by appellate authority is required to set aside and matter may be remanded back to appellate authority. He also submitted that specific contention was raised by petitioner before respondent No.1 in appeal which has been preferred by present petitioner. But this particular contention has not been dealt with by respondent No.1 and it has been decided while considering other contentions and by order dated 9.6.2010, application made by petitioner has been allowed and order passed by District Collector, Banaskantha dated 26.2.2010 has been set aside. But thereafter this very contention which was raised (Para.2, Page-47) has not been properly considered and appreciated by respondent No.1. Therefore, decision of respondent No.1 which is under challenge is violated GR dated 2.8.2004, particularly Item No.5.1.6. He also submitted that it also violated Article 15(3) of the Constitution of India which must have to be implemented which gives right of priority to woman which aspect has been totally ignored by respondent No.1. He also submitted that Vav taluka itself is a backward area where 4% women are also not educated. Therefore, he relied upon a decision of Apex Court in case of Rajeshkumar v. reported in AIR 2007 SC 3127. Relevant observations of aforesaid decision are in Para.7, 8 and 9 which are quoted as under :
7-8. 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.]
9. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 women candidates, which was equal to the quota for General Category Women . There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven women candidates selected on their own merit (candidates at Sl.Nos.2, 3, 4, 5, 9, 19, 21, 25, 31, 35 & 41 of the Selection List) and another eleven (candidates at Sl.Nos.54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the Selection List) included under reservation quota for General Category-Women . This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation.
8. Relying upon aforesaid three paragraphs where observations made by Apex Court that 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 . But the principle which apply to vertical 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 . Therefore, it has been held that 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.
9. In light of aforesaid contentions raised by learned advocate Mr.Prajpati, against which learned advocate Mr.Vaghela appearing on behalf of respondent No.3 submitted that after order passed by this Court on 2.7.2010, as referred above, in SCA No.7591 of 2010, before respondent No.1 petitioner has not raised aforesaid contentions about priority to be given to educated unemployed woman and case of present petitioner is covered by such priority as per Government Resolution dated 2.8.2004, Item No.5.1.6, as referred above. Mr.Vaghela also submitted that Page-42 which has been relied by Mr.Prajapati which has been signed by Mamlatdar, Vav dated 18.2.2010, in that list post of educated unemployed woman for purpose of 10% priority, no post has been sanctioned by State authority but, it required to be sanctioned and for that, no decision has been taken at the time when advertisement has been issued by District Collector, Banaskantha and District Supply Officer, Banaskantha. Therefore, 10% priority against 26 posts which required to be considered 3 posts for woman but, not a single post has been sanctioned by State authority. Therefore, Mr.Vaghela submitted that so long 10% priority post is not sanctioned, the petitioner is not entitled benefit of such priority as per GR dated 2.8.2004 Item No.5.1.6. Therefore, Mr.Vaghela appearing for respondent No.3 submitted that respondent No.1 has rightly considered direction issued by this Court as referred above and also rightly appreciated representation made by petitioner and also rightly examined merits in respect to educational qualification of both parties i.e. petitioner and respondent No.3 and as per GR or policy dated 21.3.2007 in case of educational unemployed person, priority has been given to post graduate candidate having degree of M.A., M.Com etc. then, second case, graduate B.A., B.Com etc. and accordingly, thereafter it has been reduced to Sy.B.A. / Sy.Com. Etc. then, standard 12th and SSC passed.
10. In light of this background, respondent No.3 who has obtained graduate degree and secured 63.44% and B.Ed. Examination 77%. Against which, present petitioner has obtained 63.44% marks in B.A. And petitioner has not obtained B.Ed. Degree, therefore, respondent No.3 is possessing more percentage in graduate degree because B.Ed. is also considered to be a Bachelor of Education 77% and present petitioner has obtained only 63.44% in B.A. Therefore, according to GR dated 21.3.2007, respondent No.3 has obtained more percentage in educational qualification with comparison to present petitioner and also more educationally qualified because respondent No.3 is double graduate and present petitioner is only graduate. Therefore, Mr.Vaghela submitted that question of priority is to be considered when both candidates are having equal percentage. But in facts of present case, considering merits of petitioner, the respondent No.3 is having more merits and also double graduate as she has secured 77% in B.Ed. Therefore, respondent No.3 can be said to be a highly qualified in comparison to present petitioner. Therefore, he submitted that respondent No.1 has rightly examined the matter and contentions which have been raised by learned advocate Mr.Prajapati may not be accepted.
11. I have considered submissions made by both learned advocates and also perused decision of Apex Court as referred above by Mr.Prajapati and also perused order passed by this Court as well as the order dated 31.8.2010/3.9.2010. According to my opinion, respondent No.1 has rightly examined merits and given reasoning and rightly appreciated representation made by respondent No.3 and also rightly considered that B.Ed course is a graduate course and respondent No.3 having double graduate 77% marks and against which, present petitioner having only 63.44% in B.A. Therefore, question of priority to educated unemployed woman does not arise because that particular question was not raised by petitioner before respondent No.1, otherwise respondent No.1 definitely consider such contention which has been raised by petitioner before this Court for first time. It is also necessary to note that decision of Apex Court which has been relied by Mr.Prajapati, is also not applicable to facts of present case because 10% priority which has been given to educated unemployed woman had not been fixed or sanctioned by State Government as per Page-42 which required to be sanctioned. But on the date of advertisement, these 3 posts are not sanctioned. Therefore, so long such 10% posts are not sanctioned, the question of entitlement of priority as claimed by petitioner does not arise. A specific contention was not raised by petitioner before respondent No.1 and therefore, respondent No.1 has not decided or considered it and for the first time it has been raised before this Court. Therefore, according to my opinion, respondent No.1 has not committed any error in deciding application / appeal preferred by respondent No.3 in pursuance to order passed by this Court, as referred above. Once petitioner is not able to satisfy merits against the merits of respondent No.3, then question of giving priority to petitioner does not arise. Here it is not the case of vertical reservation or horizontal reservation because no post has been sanctioned for educated unemployed woman. But in facts of present case, only priority has been given i.e. a preference to 10% but, that preference is not being a reservation when more meritorious candidate is available to State Government, then State Government is entitled to consider more meritorious candidate against the claim of priority of petitioner. In this case, 10% priority is available to educated unemployed woman provided that it must have to be sanctioned by State Government which facts not disclosed in advertisement dated 2.1.2010 and petitioner is not possessing more merits in comparison to respondent No.3. But when according to GR dated 21.3.2007, a candidate who having more educational qualification and also having more percentage in comparison to other candidates, then naturally such meritorious candidate must have to be given allotment of fair price shop as per policy decided by State Government dated 21.3.2007. Therefore, according to my opinion, 10% post for priority has not been sanctioned at the relevant time by State Government and without sanctioning such 10% post for priority to woman, the petitioner is not entitled the benefit of such resolution because 10% post is not sanctioned by State Government as well as not disclosed in advertisement dated 2.1.2010. It is not a case of reservation like schedule cast, schedule tribe or SEBC but, it is merely a priority or preference is made available to educated unemployed woman but, for that such woman must have to be stand in a queue. On merits if such woman fails to establish merits against other candidates, then first aspect is to be considered by authority that out of two candidates, woman and male who having more meritorious educational qualifications and if male is having more educational qualifications and more percentage, then naturally such candidate is entitled the appointment or allotment to fair price shop as per policy dated 21.3.2010 which relied by respondent No.1
12. However, the decision given by respondent No.1 is being administrative decision, this Court cannot interfere with such decision as appellate authority. The view taken by Apex Court in case of Union of India and Anr. v. K.G.Soni, reported in (2006) 6 SCC 794 wherein it has been observed in Para.13 and 14 as under :
13. In Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), this Court summed up the position relating to proportionality in paragraphs 31 and 32, which read as follows:
31. The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator.
This is the Wednesbury (1948 1 KB 223) test.
(2) The court would not interfere with the administrator s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of proportionality and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article
14.
14. The common thread running through in all these decisions is that the Court should not interfere with the administrator s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury s case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
13. Therefore, in light of this background and considering reasoning given by respondent No.1 and also specific question of priority not raised by petitioner before respondent no.1, therefore, same question now cannot be raised by petitioner first time before this Court in a petition under Articles 226 and 227 of the Constitution of India. Therefore, contentions raised by learned advocate Mr.Prajapati cannot be accepted. The decision of Apex Court which has been relied by Mr.Prajapati is also not applicable to facts of present case and respondent No.1 has not committed any error in passing aforesaid order which requires interference by this Court while exercising power under Articles 226 and 227 of the Constitution of India. Hence, there is no substance in present petition. Accordingly, present petition is dismissed with no order as to costs.
(H.K.RATHOD,J.) (vipul) Top