Madhya Pradesh High Court
Surendra Singh Yadav vs The State Of Madhya Pradesh on 30 November, 2017
(W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and
(W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor
Chaudari and others)
1
Gwalior 30.11.2017
Writ Appeal No.414/2017
Shri J.P. Mishra and Shri Gaurav Mishra, learned
counsel for the petitioner.
Shri R.D. Jain, learned Senior counsel with Shri
Sangam Jain, learned counsel for respondent no.3.
Shri Jitendra Sharma, learned counsel for the interveners.
Writ Appeal No.940/2017
Shri R.D. Jain, learned Senior counsel with Shri Sangam Jain, learned counsel for appellant.
Shri Jitendra Sharma, learned counsel for the respondents no.1 and 2.
These two writ appeals under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 are directed against the order dated 3.8.2017 passed in Writ Petition No.8142/2015.
(1) Whereas Writ Appeal No.940/2017 is at the instance of the Madhya Pradesh Public Service Commission.
(2) The Writ Appeal No.414/2017 is at the instance of the persons whose intervention application was dismissed;
and a leave is sought to file appeal against the impugned order. So far as the leave to challenge the order dated 3.8.2017 passed in Writ Petition No.8142/2015, the (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 2 Appellants are granted leave to address on merit; however, it is made clear that the appellant shall confine his submission only to the extent of correctness of the order in writ petition; and are precluded to raise any new ground. The appellant undertakes to confine to the challenge only to the legality of order dated 3.8.2017 passed in Writ Petition No.8142/2015.
(3) The Writ Petition was at the instance of respondents no.1, 2 and 3 placed in the waiting list at S.No.88, 87 and 86 respectively for the post of Ayurved Chikitsa Adhikari. The grievance raised by them was against the action of respondents-State of M.P. and the M.P. Public Service Commission in migrating the incumbent of Other Backward Class: Physically Handicapped: Orthopaedics (OBC PHO) to the post earmarked in favour of unreserved Physically Handicapped: Orthopaedics (UN PHO). The challenge was on the ground that it is impermissible in law to treat horizontal reservation as vertical and migrate incumbent who are beneficiary of horizontal reservation to unreserved post carrying horizontal reservation.
(W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 3 (4) That vide Notification No.02/Parkisha/2013/23.9.2013, 722 posts of Ayurved Chikitsa Adhikari was advertised by the Commission. Of these 317 posts were unreserved; whereas 186 posts were reserved in favour of Scheduled Tribe, 131 posts for Scheduled Caste and 88 posts in favour of Other Backward Classes. Out of these by way of horizontal reservation 43 posts were earmarked in respective category for physically handicapped. These 43 posts were further sub-divided in favour of different handicapped categories such as Orthopedics, Ophthalmology etc. In favour of Physically Handicapped (Orthopedics) 13 posts were unreserved, 7 posts were reserved for Scheduled Tribe, 6 posts were reserved for Scheduled Caste and 3 posts were reserved for the O.B.C. (5) In the results which were declared in November, 2015 (27.11.2015) respondents no.6 to 10 (respondents no.4 to 8 in writ petition) who had competed in OBC PH (O) having obtained 301, 307, 303, 296, 292 marks respectively and were at S.No.343, 380, 416, 447 and 464 of the merit-list respectively were accommodated against the posts (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 4 earmarked for UR PH (O) and the respondents no.1,2 and 3 (the petitioners in the writ petition) were placed in the wait list at S.No.88, 87 and 86 respectively. (6) Pertinent it is to note at this stage that the appellant in Writ Appeal No.414/2017 who also competed in OBC PH (O) category obtained 244 marks and was at S.No.1213 of merit list.
(7) In these factual background, learned Single Judge relying on the principle of law laid down by the Supreme Court in Swati Gupta (Mrs.) Vs. State of U.P. And others, (1995) 2 SCC 560, Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others, (2007) 8 SCC 785; nullified the action of respondent State of M.P. and the Commission, held :
"..................Therefore, since 13 persons from general category under orthopaedically handicapped are to be appointed, therefore, list will stop at S.No.88 of the supplementary list in which name of the petitioners appear at S.No.86, 87 and 88. Needless to say that two of the persons who are above them, though are not the petitioners before this court, will also be entitled to get appointment. Thus these private respondents if had not been accommodated in the merit list of general category and instead in the list of persons (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 5 belonging to OBC and SC category, then petitioners would have found their names in the merit list. Since such migration from one category to another is not permissible under horizontal reservation, therefore, private respondents are entitled to seek their appointment under their respective categories of OBC and SC on the basis of their merit and not under the general category in the light of the law laid down in the case of Swati Gupta (supra), therefore, the petition deserves to be allowed and is hereby allowed.
It is directed that respondents shall include the names of the petitioners, if found otherwise eligible, in the selection list and issue appointment in favour of the petitioners as a general category orthopaedically handicapped candidates in preference to respondents NO.4 to 8 with all consequential benefits within a period of three months from the date of receipt of certified copy of this order. Respondents No.3 shall also bear the cost of litigation which is quantified at Rs.25,000/- payable in favour of each of the petitioners."
(8) Though it is contended on behalf of the appellants that it is permissible under sub-section (4) of section 4 of the Madhya Pradesh Lok Seva (Anusuchit Jatiyon Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 which provides that, if a person belonging to any of the categories mentioned in sub-section (2) gets selected on the basis of merit in an open competition with (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 6 general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (2) of section 4, to migrate respondents no.6 to 10 to unreserved PH (O) posts.
(9) The question is whether a candidate who opts to take up a competitive examination not as a General Category/Unreserved category but as a reserved category candidate belonging to SC/ST/OBC, as the case may be, thus competing amongst the candidates of his category, if obtain marks higher than obtained by the candidates of a General Category can be permitted to incurs in the General Category. In other words, whether a candidate having opted to participate in a competitive examination as a reserved category candidate can be permitted to migrate to General Category? (10) In Indra Swahney vs. Union of India 1992 Supp (3) SCC 217 (Paragraph 812), it has been observed -
"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 (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 7 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that 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. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
(Emphasis supplied) (11) Thus, when a reservation is horizontal, then the candidate selected on the basis of reservation in any category has to be fixed in said category and cannot be allowed to migrate to other category. The concept of migrating from one category to another on the basis of merit may hold good in vertical reservation but in horizontal reservation the same is not applicable.
(12) In Rajesh Kumar Daria v. Rajasthan Public Service Commission AIR 2007 SC 3127, it has been held -
"7-8. The second relates to the difference between the nature of vertical reservation and (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 8 horizontal reservation. Social reservations in favour of SC, ST and OBC under Art. 16(4) are 'vertical reservations.' Special reservations in favour of physically handicapped, women etc., under Art. 16(1) or 15(3) are 'horizontal reservations.' Where a vertical reservation is made in favour of a backward class under Art. 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 v. State of Punjab (1995 (2) SCC 745); Union of India v. Virpal Singh Chauvan (1995 (6) SCC 684) and Ritesh 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 (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 9 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 (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 10 contains only two women 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.)"
(13) The impugned judgment when tested on the anvil of the above analysis cannot be faulted with as would warrant any interference. However, we are of the considered opinion, in the given facts of the case that there being no malafides on the part of the Commission in causing migration, no case is made out by the petitioners (respondents no.1, 2 and 3) for imposing cost of Rs.25,000/- payable in favour of each of the petitioners therein. We therefore set aside the cost imposed.
(13) The Writ Appeal No.940/2017 is partly allowed to the (W.A.No.414/2017, Surendra Singh Yadav Vs. State of M.P. and others) and (W.A.No.940/2017, Madhya Pradesh Public Service Commission Vs. Dr. Nabhikishor Chaudari and others) 11 extent above.
W.A.No.414/2017
In view of the order passed in W.A.No.940/2017 whereby we have upheld the order passed in Writ Petition No.8142/2015 with a partial modification. And the fact that the appellant herein competed in OBC PH (O) Category and obtained 244 marks which being much below than the petitioners in Writ Petition, no indulgence can be caused with the impugned order in writ petition.
Consequently, appeal fails and is dismissed. No costs.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
pawar/-
ASHISH PAWAR
2017.12.01 17:47:40 +05'30'