Jharkhand High Court
Rajesh Kumar Sinha vs The State Of Jharkhand on 7 January, 2016
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 3821 of 2013
Rajesh Kumar Sinha ..... Petitioners.
vs.
1. The State of Jharkhand
2. The Secretary, Personnel & Administrative
Reforms Department, Govt. of Jharkhand, Ranchi.
3. The Jharkhand Public Service Commission
through its Secretary, Ranchi.
4. Chhanda Bhattacharjee, posted as Deputy
Collector.
5. Madhushree Mishra posted as Deputy
Collector. ....Respondents.
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : M/s. Rajiv Ranjan, Sanjay Kr. Tiwari, Advs.
For the State : Mr. Prashant Kr. Singh, G. P. VI
For the J.P.S.C : Mr. Sanjay Piprawall, Adv.
For the Respondent No. 4 : Mr. Sumeet Gadodia.
For the Respondent No. 5 : Mr. V. P. Singh, Sr. Adv.
15/7.1.2016 Heard learned counsel for the parties.
2. The question required to be answered in the instant matter is whether the petitioner is entitled for appointment as Deputy Collector under the recruitment exercise held by Jharkhand Public Service Commission (JPSC in short) under the 2nd, 3rd and 4th Combined Limited Deputy Collector Recruitment Exam held pursuant to the advertisement bearing no. 09/2010 dated 8th October, 2010 as per merit in the General Category.
3. The brief facts relevant for arriving at an answer to the instant issue are being referred to hereunder:
The instant recruitment exercise known as Combined Limited Deputy Collector Recruitment Exam (hereinafter to be referred as LDCE in short) undertook by JPSC was intended to fill up notified vacant post of Deputy Collector in Jharkhand Administrative Service from amongst serving ClassIII employees under the Respondent Government of Jharkhand. The other details relating to eligibility and qualification etc. need not be gone into for the reason that the question involved herein relates to applicability of horizontal reservation by the respondents in the appointment process.2.
This claim of the petitioner for recruitment is related to vacancies of 4th Combined Limited Deputy Collector Recruitment Exam conducted by JPSC, in which 66 posts were advertised, 32 in Unreserved Category; 18 in Schedule Tribe and 6 in Schedule Caste Category. 6 and 4 posts were advertised in the category of most Backward Class1 and Backward ClassII respectively. The advertisement prescribed 2% horizontal reservation for physically handicapped category, 5% in the Female Category and 2% for Sports Category. Written exams were held on 27th January, 2013, results of which were published on 19th April, 2013. JPSC made final recommendation to the Department of Personnel, Administrative Reforms & Rajbhasa on 2nd May, 2013 for appointment of successful candidates.
4. It would not be out of place to mention here that during the process of recruitment, the State Government modified the requisition to 64 posts only under 4th Combined Limited Deputy Collector Exam vide Annexure B to the counter affidavit of J.P.S.C. which included 3 post reserved for female category in the 5 % quota for horizontal reservation. JPSC recommended altogether 61 candidates;
a) Unreserved32
b) S.C.06
c) S.T17
d) B.CI 05
e) BCII04
5. It is not disputed as is evident from Para26 of the counter affidavit of J.P.S.C. dated 26th November, 2014 that 3 female candidates were selected on the basis of merit under the respective categories i.e.;
1. Madhu Kumari (Unreserved) having secured 145.80 marks.
2. Rajshri Lalita (Schedule Tribe), having secured 117.67 marks.
3. Renubala (Schedule Caste) having secured 126.74 marks. JPSC being guided by the requisition at AnnexureB of the State Government recommended further 3 female candidates against female 3. quota being
1. Renu Kumari (Unreserved) having secured marks 128.75.
2. Chanda Bhattacharya (Unreserved) having secured 128.73 marks
3. Madhushri Mishra (Unreserved) having secured 128.73 marks. Chhanda Bhattacharya and Madhushri Mishra are the private respondents, who have been impleaded during the pendency of the writ application in view of the nature of challenge laid down herein to the recruitment process and preparation of panel.
6. JPSC in its affidavit at para 28 has also given marks secured by last recommended candidate in each category in the 4th Limited Deputy Collector Recruitment Exam which are as under:
i) Unreserved 138.82
ii) Schedule Tribe 113.70
iii) Schedule Caste 124.75
iv) B.CI 137.80
v) B.C.II 137.81 and
vi) Female 128.73
7. It has also been indicated that different cut off marks secured by last recommended candidate in general category for 2nd, 3rd and 4th Limited Deputy Collector Recruitment Exam, 2013 were fixed on the basis of which meritlist was prepared.
i) 2nd Limited Deputy Collector Exam 143.85 Marks
ii) 3rd Limited Deputy Collector Exam 143.80 Marks
iii) 4th Limited Deputy Collector Exam 138.82 Marks
8. Petitioner has secured 138.80 marks in the written test . As per the statement of RespondentJPSC at para 31 and 32 of the said counter affidavit one Anant Kumar Jha has secured 138.81 marks and is above the petitioner in the meritlist for 4th Limited Deputy Collector Exam. All recommended candidates were appointed on 10th August, 2013, as per AnnexureA/5 notification of Department of Personnel, Administrative Reforms & Rajbhasa. As per the private respondents, they are stated to have completed their probation period and lost their lien to the previous post. They are serving 4. as Deputy Collector under respondent government.
9. One additional fact of importance which also needs to be noticed herein is that both JPSC and Department of Personnel in its affidavit filed on 18th December, 2015 have stated that out of 32 vacancies in General Category candidate under 4th Limited Deputy Collector Recruitment Exam, 31 posts have been filled up. One unfilled vacancy of General Category has been carried forward in the vacancy for next requisition as per provisions contained in Resolution bearing no. 13026 dated 27th November, 2012. It is also the case of the respondent department that the appointment process has been completed and unfilled vacancies are carried to the next requisition. Any change in the selection list will disturb the entire appointment process.
It is also evident from the submission of learned counsel for the RespondentJPSC and the State that no fresh recruitment exercise under the Limited Deputy Collector Exam has been held thereafter.
10. In the factual matrix of the case noticed hereinabove, petitioner has staked his claim for appointment based upon the legal submission that the selection exercise conducted by JPSC has been in teeth of ratio laid down by Apex Court in the case of Rajesh Kumar Daria .Vs. Rajasthan Public Service Commission reported in (2007) 8 SCC 785 and followed in other cases such as in the case of Public Service Commission, Uttaranchal vs. State of Uttaranchal reported in (2010) 12 SCC 204 and in the case of Jitendra Kumar Singh & others vs State of Uttar Pradesh and others reported in (2010) 3 SCC 119.
11. It is submitted that as per the ratio laid down by Apex court in the case of Rajesh Kumar Daria(Supra) in matters relating to horizontal reservation i.e., categories of female, physically handicapped candidate or sports etc. , the principle that has been laid down is that a candidate from any of those categories of horizontal reservation if as per his/her own merit comes in the final list prepared by the recruitment agency on the quota of his/her respective category, there is no occasion to accord 5. further reservation in that category beyond what is permissible to the Unreserved Category or any of the categories of vertical reservation i.e, Scheduled Caste, Scheduled Tribe or Backward Classes etc. It is submitted that as per averments of JPSC it is beyond dispute that three female candidates on their own merits found place in their respective categories i.e, General, S.C. and S.T in the panel prepared and recommended by JPSC to the State Government for 4th L.D.C.E. JPSC therefore misconstrued the import of the judgment rendered in the case of Rajesh Kumar Daria (Supra) by Apex court and acting upon the indent of the respondent Personnel Department erroneously recommended three more female candidates in the General Category for further appointment against the available vacancies. Further recommendation of 3 female candidates being in teeth of principles applicable to horizontal reservation, , petitioner who was eligible on his own merit was denied appointment as Deputy Collector in the said exercise. That is why he has approached this Court and impleaded private respondents also. However, it is submitted that when one vacancy admittedly exist in General Category in 4th LDCE, petitioner would be satisfied if writ of mandamus and/or direction is issued upon the official respondents to recommend and appoint him on the post of Deputy Collector without replacing the private respondents. It is submitted that Apex court in the case of Rajesh Kumar Daria (Supra) also took the same approach on the availability of vacancy and accommodated the appellants who were eligible on merits to be appointed on the post of Munsif Magistrate under Rajasthan Judicial Service. This would serve the interest of justice without harming the interest of private respondents. It is submitted that there has been no fresh recruitment exercise and the writ petition was filed before the appointments were made during the life of the panel. It therefore cannot be said that cause of action is stale.
12. It is also pointed out by learned senior counsel for the petitioner that Anant Kumar Jha, who has secured 138. 81 marks has been directed to 6. be appointed by this Court in a judgment rendered in his W.P. (S) No. 5589 of 2013 along with W. P. (S) No. 729 of 2014 dated 10th September, 2015 and one vacancy has remained unfilled even thereafter. Therefore, petitioner being next person as per merit should be directed to be appointed by the respondents.
13. Learned counsel for the JPSC has relied upon the contents of the counter affidavit filed on their behalf and the method and manner of recommendation made in view of the categorical indent placed by the State Government requiring horizontal reservation to 3 female candidates.
14. Learned counsel for the State has harped upon the submission that the entire recruitment exercise has come to an end and the challenge to the selection and preparation of panel should not be entertained at this stage.
15. Learned counsel for the JPSC and State have however not been able to dislodge the proposition of law relied upon by the petitioner as held in the case of Rajesh Kumar Daria (Supra) on the subject.
16. Learned counsel for the private respondents who have filed their counter affidavit do not object to the course suggested by counsel for the petitioner if appropriate direction is issued for his appointment without affecting the private respondents.
17. I have considered the submissions of the parties in detail in the factual matrix of the case noticed hereinabove. The legal issue involved herein is applicability of horizontal reservation in any such recruitment exercise, more specifically, the present exercise in question relating to appointment of Deputy Collectors under the respondent Government by the JPSC known as 2nd, 3rd and 4th Combined Limited Deputy Collector Recruitment Exam. It is clear from the stand of the respondents JPSC, undisputed by any of the parties, that three female candidates got recommended on the basis of their own merit in their respective categories i.e. general, SC and ST in the 4th Combined Limited Deputy Collector Recruitment Exam. The notified 7. vacancies of the 4th L.D.C.E required fulfillment of 64 vacancies and as per 5% horizontal reservation to the female category, three posts were earmarked for the female category. Once 03 posts were filled up on merit by female category candidates, there was no occasion for the JPSC to make any further recommendation of any other female candidates in that category.
18. The legal position in this regard has been laid down by the Apex Court in the case of Rajesh Kumar Daria (Supra). Paragraph6, 7, 8 and 9 of the judgment containing the opinion of the Court is being quoted hereunder which lays down guiding principle to be followed in such circumstances.
6. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney v. Union of India the principle of horizontal reservation was explained thus: (SCC pp. 73536, para
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 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."
7. A 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. thus: (SCC p. 185, para 18) "The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; 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 8 against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised 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 per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)"(emphasis supplied)
8. 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".
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 nonreserved posts and if they are appointed to the nonreserved posts on their own merit, their number will not be counted against the quota reserved for 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 that 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 Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul.) 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 Caste 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 woman candidates, then there is no need to disturb the list by including any further SC woman 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 woman SC 9 candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)"
19. It appears that due to the recommendation of female candidates beyond three female candidates who got included in the merit list on the basis of their own merit, petitioner being the second person after the last recommended candidate could not find place in the general category. In this regard, as has been held by the Apex Court in the case of Rajesh Kumar Daria (Supra), quoted hereinabove, if the number of women in such merit 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 was any shortfall in the requisite number of female candidates in the merit list prepared, as per the admissible quota of horizontal reservation to the female category, then deleting the corresponding names of candidates from the bottom of the list relating to the respective category, any further recommendation of any female category candidate could have been made by the JPSC. The example quoted in the judgment of Rajesh Kumar Daria (Supra) hereinabove are illustrative on the point.
20. Therefore, upon consideration of the law laid down in this regard in the factual matrix of the case, answer to the question posed at the outset is in affirmative and is in favour of the petitioner. However, it is to be seen whether the petitioner could be appointed in the circumstances without disturbing the private respondents who have already been appointed pursuant to the recommendation made by the JPSC and completed their probation as well. As is apparent from the stand of the respondent JPSC and the State, out of 32 general category vacancies notified under the 4th Combined Deputy Collector Recruitment Exam, only 31 posts were filled up finally and one post remained vacant. Though, as per the resolution quoted by the respondent State, the remaining vacancies are to be carried forward to the next recruitment exercise, since no fresh recruitment exercise has been undertaken thereafter, said vacancy continues to exist. It 10. would therefore be only in the interest of justice that the petitioner be considered for appointment against the remaining one vacancy available under the 4th Combined Limited Deputy Collector Recruitment Exam. The respondent JPSC would consider the claim of the petitioner and make necessary recommendation in accordance with law.
21. The respondent State and the JPSC would undertake the instant exercise in accordance with law and as per the procedure laid down and take a decision on the question of appointment of the petitioner if he is eligible in all other respects, as per the advertisement in question. Let such exercise be undertaken within a period of six weeks from the date of receipt of a copy of this order.
22. Writ petition is allowed in the manner indicated hereinabove.
(Aparesh Kumar Singh,J) jk /Ranjeet