Allahabad High Court
Pawan Kumar vs State Of U.P. And Another on 19 April, 2018
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 36 Case :- WRIT - A No. - 3837 of 2016 Petitioner :- Pawan Kumar Respondent :- State Of U.P. And Another Counsel for Petitioner :- Bal Krishna Pandey,Siddharth Khare Counsel for Respondent :- C.S.C.,Nafees Ahmad Hon'ble Mrs. Sunita Agarwal,J.
Heard Shri Ashok Khare, learned Senior Advocate, assisted by Shri Umang Srivastava, learned counsel for the petitioner and the learned Standing Counsel.
By means of the present petition, the petitioner is seeking a writ of mandamus commanding the respondents to allow him to participate in the interview for the post of Revenue Lekhpal on the basis of the result of written examination declared on 11.12.2015.
It is contended that the petitioner is a General Category Candidate and has applied in Special Category of "Partially deaf" (Physically disabled Category) so as to get benefit of the U.P Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (in short 'the Act, 1993') read with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (in short 'the Act, 1995'). However, the claim of the petitioner has not been considered on the basis of the Government Order dated 28.8.2015 with the assertion that only 33 posts were advertised and out of the same, 3 % reservation of Physically disabled horizontal category would come to 0.99 which cannot be rounded off to 1 (one).
Learned Senior Advocate appearing for the petitioner with reference to the judgment of Apex Court in the case of State of U.P. & Anr. v. Pawan Kumar Tiwari & Ors. reported in (2005) 2 SCC 10 submits that the principle of rounding off can be applied in the matter of horizontal reservation. The prohibition contemplated under the Government Order dated 28.8.2015 would not be attracted in the matter of horizontal reservation as it cut across the vertical reservation, ceiling for which is 50%. In case of grant of horizontal reservation for Physically disabled Category, one post belonging to the appropriate category of vertical reservation i.e. General OBC, SC & ST would be adjusted from amongst the candidates who had applied for consideration under the notified horizontal/special category. Thus, in case of "rounding off", the total reservation position would not change.
It is, thus, contended that wrong principles have been applied by the respondent No.2 namely the Chairman Selection Committee for denial of benefit of horizontal reservation (partially deaf) to the petitioner and in refusing him to participate in the interview conducted for the post of Revenue Lekhpal.
Learned Standing Counsel placing reliance on the averments in Paragraphs 4, 6, 7 and 8 of the counter affidavit submits that as against 33 posts, 125 candidates have been declared successful in the written examination and after conducting interview of such candidates, the selection has been made on the basis of a combined merit list. As no post has been reserved for Physically disabled Category, number of post being less than one, the petitioner cannot be given consideration for the said post. With reference to the percentage of horizontal reservation category against the post advertised, Paragraph-4 of the counter affidavit reads as under:-
"4. That, through the advertisement dated 22.07.2015, 33 posts of Lekhpal were advertised in which the description of the posts reserved for each category i.e. General (UR)-15, SC-1, ST-1 and OBC-16 were given. While issuing the said advertisement, the calculation of horizontal reservation in view of the Government Order dated 28.02.2015 has been made in following manner:
a) PHD 3% 0.99 0 post
b) Dependents of Freedom Fighter 2% 0.66 0 post
c) Ex-Serviceman 5 % 1.65 1 post
d) Woman 21 % 6.6 6 post The photocopy of the letter dated 29.09.2015 written by the District Magistrate to T.C.S and the photocopy of the Government Order dated 28.02.2015 are being annexed herewith and marked as ANNEXURE NO. 1 & 2 to this affidavit."
Thus the only question raised before the Court is with regard to computation of reserved vacancies of Physically Disabled Category (horizontal category) for the post in question.
In so far as the stand taken by the petitioner that the post for the said category was required to be reserved in view of the mandate of Section 3 of the Act, 1993 and Section 33 of the Act, 1995 to the extent of 3% is concerned, no dispute has been raised in the present petition. And as such the Court will not enter into the question as to whether the reservation for Physically Challenged (partially deaf) was applicable to the post in question and that whether the persons with disabilities have sufficient representation in the department concerned.
The Court will deal with the issue as it is; i.e. that in view of mandate of the Act, 1993 and the Act, 1995, the reservation of Physically disabled Category (partially deaf) was applicable to the post in question. The advertisement in question also supports this view taken by the Court. The reliance placed by the learned Standing Counsel upon the Division Bench judgment of this Court in Special Appeal No.572 of 2016 (Adarsh Upadhyay & Anr. v. State of U.P. & Ors.) decided on 16.9.2016 is, therefore, misplaced.
From a perusal of the averments in Paragraph-4 of the counter affidavit as also the advertisement dated 22.7.2015, (page '12' of the paper book), it is clear that it was notified that the horizontal reservation as per the Act, 1993 would be applied in the matter of selection on the post of Revenue Lekhpal. However, while computing the number of reserved post as against 3% percent reservation for each category of "Physically disabled persons", the reservation has been denied on the ground that "rounding off principle" cannot be applied in the light of the Government Order dated 28.8.2015. As per the details given in the counter affidavit, it is clear that 3 % of 33 posts comes to 0.99. Applying the arithmetic principles, 0.99 has to be "rounded off" to one i.e. one post was required to be reserved for Physically Challenged Category and, therefore, was required to be filled by the Selection Committee by making adjustment for the candidates in the final merit list prepared after interview.
The directions issued vide Government Order dated 28.8.2015 cannot be applied in the matter of horizontal reservation, inasmuch as, a careful reading thereof indicates that the directions have been issued not to apply the "rounding off principle" as a caution so that the total percentage of reservation may not exceed more than 50%.
In the matter of horizontal reservation, as per the procedure, it is settled position that the horizontal reservation always cut across the vertical reservation i.e. the candidate who seek benefit of any of the category of horizontal reservation has to be considered by adjusting him against the appropriate category of General, OBC, SC & ST i.e. the category to which he belongs. The adjustment has to be made as per the principles laid down by the Apex Court in the case of Indra Sawhney v. Union of India reported in 1992 Supp (3) SCC 217, AIR 1993 SC 477. The process for adjustment of horizontal category candidate of "persons with disabilities" has been further clarified in Union of India & Anr. v. National Federation of the Blind & Ors. reported in 2013 (10) SCC 772, following the law laid down in Indra Sawhney (supra), as under:-
"42. A perusal of Indra Sawhney (supra) would reveal that the ceiling of 50% reservation applies only to reservation in favour of other Backward classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the Constitution. In fact, this Court in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. Para 95 of the judgment clearly brings out that after selection and appointment of candidates under reservation for persons with disabilities they will be placed in the respective rosters of reserved category or open category respectively on the basis of the category to which they belong and, thus, the reservation for persons with disabilities per se has nothing to do with the ceiling of 50%. Para 812 is reproduced as follows:-
"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 inter-locking 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......"
Thus, as per the approved method of computation of reservation at the time of preparation of the merit list of General and socially reserved Category, the last candidate selected in the appropriate category has to be removed so as to adjust the candidate belonging to the special/horizontal category of the said socially reserved or unreserved category. For example, if the candidate seeking benefit of special category of physically disabled, belongs to the General Category, he will be placed in the merit list of the said category by making necessary adjustment. The result is that the last candidate from the merit list of General category will be replaced by the candidate belonging to the special (horizontal category). The same process has to be adopted with reference to the candidates belonging to socially reserved category of OBC, SC & ST. Thus, if adjustment is made in such a manner, the total percentage of reservation, in any case, would not exceed 50%.
Thus the denial of benefit of reservation to a "physically challenged" candidate is based on irrelevant consideration on misunderstanding of the law of horizontal reservation.
Now the only issue left is as to what relief can be granted to the petitioner. It is noteworthy that the petitioner has approached this Court in the month of January, 2016 before the selection process could be finalised, seeking consideration of his claim under the Physically Challenged Category as per the Act, 1993. One post has been kept reserved by this Court vide interim order dated 25.5.2016 The objection of learned Standing Counsel that since the selection process has been finalized much earlier and hence the petitioner is not entitled for any relief, therefore, is not tenable.
In view of the above discussion, this Court does not find any impediment in consideration of claim of the petitioner as against the special category quota of "Physically disabled persons", against one post of Revenue Lekhpal which is still lying vacant. It is noteworthy that no other candidate belonging to the said category has approached this Court nor any such averment has been made in the counter affidavit.
In view thereof, the respondent No.2 is hereby directed to arrange the interview of the petitioner by the Selection Committee duly constituted as per the rules. The date of interview shall be intimated to the petitioner within a period of two weeks from the date of submission of certified copy of this order.
The claim for appointment of the petitioner on the post of Revenue Lekhpal shall be considered and appointment letter shall be issued, after document verification, provided the petitioner fulfils all the eligibility criteria for appointment to the said post.
Subject to the above observations and directions, the writ petition is allowed.
(Sunita Agarwal, J.) Order Date :- 19.4.2018 Jyotsana