Karnataka High Court
Sri Shrishail Biradar Patil vs The Principal Secretary on 18 November, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2023:KHC:41420
WP No. 22087 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 22087 OF 2023 (S-RES)
BETWEEN:
1. SRI SHRISHAIL BIRADAR PATIL
S/O ALAGOUDA, AGED ABOUT 40 YEARS,
C/O RAMESH KULLALLI,
#215, 11thMAIN, 11thCROSS,
D GROUP VIDHANSOUDHA, LAYOUT,
NEAR ACHUTH GRAND APARTMENT
NAHARABAVI,BANGALORE 560072
...PETITIONER
(BY SRI. JAGDISH SHASTRI.,ADVOCATE)
AND:
1. THE PRINCIPAL SECRETARY
SOCIAL WELFARE DEPARTMENT,
Digitally
signed by
STATE OF KARNATAKA,
MANJANNA
MANJANNA E
E Date:
2024.01.16
VIKAS SOUDHA, BANGALORE 01.
11:37:58
+0530
2. THE SECRETARY
KARNATAKA PUBLIC SERVICE COMMISSION,
PARK HOUSE ROAD, BANGALORE 01.
3. KARNATAKA RESIDENTIAL EDUCATIONAL
INSTITUTIONS SOCIETY,
(ITS UNDER TAKING GOVT)
REPRESENTED BY ITS EXECUTIVE DIRECTOR,
KARNATAKA STATE CO OPERATIVE BOARD
BUILDING,6 AND 7 FLOOR,
NEAR CHANDRIKA HOTEL
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NC: 2023:KHC:41420
WP No. 22087 of 2023
CUNNIGHAM ROAD,
BANGALORE 560052.
4. SRI. NAGARAJ PRABHU
REG NO. 9029871
AGE BY MAJOR,
GANAPATHI GALLI POST SIDDAPUR,
UTTARA KANNADA 581 355.
...RESPONDENTS
(BY SMT. ANITHA GIRISH, HCGP FOR R-1;
SMT.SINCHANA.M.R, ADVOCATE FOR R-2;
SRI.NAGAIAH, ADVOCATE FOR R-3;
R-4 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ENDORSEMENT BEARING NO. KA VA SHI SA
SA / AD HALIT /NE.NE-CHI SHI (DIPLOMA)C R-27/2022-
23 DATED 17/08/2023 ISSUED BY THE R3 VIDE
ANNEXURE-F AND RE-DO THE MEDICAL EXAMINATION OF
THE PETITIONER IN THE INTENT OF JUSTICE AND
EQUITY, ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. A notification was issued calling for applications for appointment to the post of Principal and all subject teachers, including the post of a Drawing Teacher. The petitioner submitted his application and in the application, he also claimed reservation under Category III-A, apart -3- NC: 2023:KHC:41420 WP No. 22087 of 2023 from the reservation earmarked for physically disabled persons.
2. It is the case of the petitioner that he had secured 70.8095% and though his name was included in the select list, he was ultimately not selected on the ground that he was not physically disabled as per the report of the Medical Board.
3. It is the contention of the petitioner that even if his claim of being physically disabled is eschewed, he would, nevertheless, have a right to be selected, since he had secured more marks than the 4th respondent, who had secured 68.3809% and belonged to the General Merit Category.
4. To put it differently, it is the case of the petitioner that even if his case was considered under the General Merit Category, he would have to be selected and merely because he had claimed reservation under Category III-A and as a physically handicapped person, his entitlement to -4- NC: 2023:KHC:41420 WP No. 22087 of 2023 the job cannot be denied, as he possessed more merit than the last candidate selected in the General Merit Category i.e., the 4th respondent.
5. Learned counsel for the Karnataka Public Service Commission ("the KPSC", for short), however, contended that the petitioner could not be considered under the General Merit Category, since he had claimed reservation both under Category III-A and under the physically handicapped quota. It is her contention that since the petitioner had claimed reservation under the physically handicapped quota, his case for selection would have to be considered by applying horizontal reservation and not vertical reservation. She contended that once reservation under the physically handicapped quota was claimed, the KPSC would not be entitled to consider the case of the petitioner under the General Merit Category. She has placed strong reliance on the decision rendered by the -5- NC: 2023:KHC:41420 WP No. 22087 of 2023 Apex Court in the case of Rajesh Kumar Daria1, more particularly on paragraph 9, which reads as follows:
"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 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 [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , R.K. Sabharwal v. State of Punjab 1 Rajesh Kumar Daria v. Rajasthan Public Service Commission & Ors., (2007) 8 SCC 785.-6-
NC: 2023:KHC:41420 WP No. 22087 of 2023 [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] , Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] 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 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:
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NC: 2023:KHC:41420 WP No. 22087 of 2023 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 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.)"
6. In light of the above contentions, the question that is to be considered in this case is as to whether the KPSC was justified in considering the candidature of the -8- NC: 2023:KHC:41420 WP No. 22087 of 2023 petitioner only under the physically handicapped quota?
7. It is the principal contention of the learned counsel for the KPSC that though the petitioner did secure more marks than the 4th respondent (a General Merit Category candidate), the petitioner could not be selected since he had opted for horizontal reservation.
8. The concept of vertical reservation and social causes reservation is well established. "Vertical reservations" are meant for reservations under Article 16(4) of the Constitution of India, while "horizontal reservations" are sub-quota of reservations made for social causes other than the reservations provided under Article 16(4) of the Constitution of India. This concept is commonly referred to as "interlocking reservations". The manner in which reservations are to be applied has been succinctly stated by the Madras High Court in the case of K.R. Shanthi2.2
K.R. Shanthi v. Secretary to Government, Education Department, Chennai and Another, 2012 SCC OnLine Mad 5451.-9-
NC: 2023:KHC:41420 WP No. 22087 of 2023 The relevant portion of the said judgment is extracted as under:
"14. A perusal of the above judgments would keep at least two things beyond any pale of doubt. Firstly, the roster is not vacancy based, but the same is only post based. It identifies the number of posts earmarked for various categories under the vertical reservations and posts left behind for open quota as well as special reservations. Secondly, after so identifying the posts, it should be calculated as to how many vacancies are to be filled up under various categories in the current selection. If once the number of vacancies earmarked for each category in the current selection is identified by using the roster, thereafter the roster will have no further role to play in the matter of selection. After identifying the number of vacancies earmarked for various categories, the selection for each category has to be made purely based on merit following the method detailed below:
First Step:
(i) As against the number of vacancies identified for open quota, irrespective of caste,
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NC: 2023:KHC:41420 WP No. 22087 of 2023 sex, physically challenged, etc. everyone should be allowed to compete based on merits.
(ii) The meritorious candidates should be first selected as against the above vacancies under open quota.
Second Step:
(iii) After completing the first step, moving on to the vertical reservation categories, selection has to be made for each category from amongst the remaining candidates belonging to the particular reserved category (vertical) based on merits.
Third Step:
(iv) After completing the second step, horizontal reservation which cuts across the vertical reservation has to be verified as to whether the required number of candidates who are otherwise entitled to be appointed under the horizontal reservation have been selected under the vertical reservation.
(v) On such verification, if it is found that sufficient number of candidates to satisfy the
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NC: 2023:KHC:41420 WP No. 22087 of 2023 special reservation (horizontal reservation) have not been selected, then required corresponding number of special reservation candidates shall have to be taken and adjusted/accommodated as against social reservation categories by deleting the corresponding number of candidates therefrom.
(vi) Even while filling up the vacancies in the vertical reservation, if, sufficient number of candidates falling under the horizontal reservation have been appointed, then, there will be no more appointment exclusively under the horizontal reservation.
Caution:
(vii) At any rate, the candidates who were selected as against a post under open quota shall not be adjusted against the reserved quota under vertical reservations."
9. The Apex Court, in the case of Saurav Yadav3, has also set forth the steps that have to be adopted while 3 Saurav Yadav v. State of U.P. and Ors., (2021) 4 SCC 542.
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NC: 2023:KHC:41420 WP No. 22087 of 2023 implementing reservations. The relevant paragraph reads as under:
"13. The observations in the order dated 20-2-2019 passed by the Division Bench of the High Court of Judicature at Allahabad in Pramod Kumar Singh v. State of U.P. [Pramod Kumar Singh v. State of U.P., 2019 SCC OnLine All 6901] are also relied upon by the State Government. In that case the horizontal reservation for dependants of freedom fighters, ex-servicemen and women in the very same selection for Police Constables was in issue. The Division Bench of the High Court dealt with the Note submitted on behalf of the State which indicated the steps undertaken to determine and fill up seats for various categories as under: (SCC OnLine All para 14) "14. The procedure as set forth for completion of the recruitment exercise is then described in the following terms:
"Step 3.1. From List 1 select 19,158 candidates in open category in order of their merit (Total Marks). This list may contain candidates from any State or any reserved categories (OBC/SC/ST) also. Let us call this list as List 1-A. Step 3.2. Now select 10,345 candidates of OBC Category from the candidates left after Step 3.1 from
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NC: 2023:KHC:41420 WP No. 22087 of 2023 the List 1. This will include only OBC candidates with domicile of U.P. Let us call this list as List 1-B. Step 3.3. Now select 8046 candidates of SC Category from the candidates left after Step 3.1 from the List
1. This will include only SC candidates with domicile of U.P. let us call this list as List 1-C. Step 3.4. Now select 766 candidates of ST Category from the candidates left after Step 3.1 from the List 1. This will include only ST candidates with domicile of U.P. let us call this list as List 1-D. Step 3.5. If number of candidates in List 1-C is less than the required number 8046 for SC candidates from shortage will be filled from ST candidates remaining after Step 3.4 if available. If required quota of SC remains unfilled, then number of shortage posts should be shown separately. Similarly if number of for ST candidates then shortage will be filled from SC candidates remaining after Step 3.3, if available. If required of ST still remains unfilled then number of shortage posts should be shown separately.
Step 3.6. In this way four lists of candidates will be prepared as follows:
List 1-A (OC) List 1-B (OBC) List 1-C (SC) List 1-D (ST)
19,158 (will 10,345 (only 8046 (only SC, 766 (only ST,
include GEN, OBC, domicile domicile of domicile of
OBC, ST of any of U.P.) U.P.) U.P.)
State)
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WP No. 22087 of 2023
Step 4. Prepare a separate list of remaining candidates from List 1 who are not included in Lists 1-A, 1-B, 1-C and 1-D. Let us call this list as List 2. Step 4.1. Now count the number of DFF candidates belonging to General Category (having domicile of U.P.) from the List 1-A. The candidates should not be of OBC/SC/ST category. If number of candidates is 383 or more, then nothing needs to be done, otherwise select the shortfall of candidates of General Category belonging to DFF on merit from List 2 (only candidates not belonging to OBC, SC & ST category) and adjust/insert them in after removing equal number of candidates from the bottom of List 1-A except General Category DFF, ex- servicemen, female and home guard candidates (any candidate who is eligible for horizontal reservation)."
10. These two judgments were referred to and affirmed by the Apex Court in the case of K. Shobana4, wherein it has observed as under:
"27. We may also note that the manner of filling up the seats has been well enunciated in the judgment in K.R. Shanthi case [K.R. Shanthi v. State of T.N., 2012 SCC OnLine Mad 5451 : (2012) 7 MLJ 241 paras 14, 18 and 19: SCC OnLine Mad paras 14 & 18-23, incidentally authored by S. Nagamuthu, J., 4 State of Tamil Nadu v. K. Shobana & Ors., (2021) 4 SCC 686.
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NC: 2023:KHC:41420 WP No. 22087 of 2023 as he then was, though of course the principle of promissory estoppel cannot apply while he raises his contentions!] by the Madras High Court itself and appears to have been consistently followed. May be the peculiarity of the situation arising in Chemistry subject (which is in question) gives rise to this problem in the current year and such a problem had not apparently arisen earlier. In fact, there is no manner of doubt after the latest judgment of this Court in Saurav Yadav case [Saurav Yadav v. State of U.P., (2021) 4 SCC 542] which again refers to the steps which have to be taken to fill in those vacancies. The steps are clear in their terms: in the given facts of the case, application of those principles or steps would imply:
(a) the general merit list to be first filled in;
(b) the backlog vacancies of the particular reserved category to be thereafter filled in "first"; and
(c) the remaining reserved vacancies for the current year to be filled thereafter."
11. In light of the said pronouncements by the Apex Court, it is clear that the 1st step to be adopted is to fill up the General Merit Category candidates and while so filling up, every candidate, irrespective of the claim made for reservation, either on the basis of caste, sex or physical
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NC: 2023:KHC:41420 WP No. 22087 of 2023 disability, should first be considered for selection based only on merit and after these meritorious candidates are selected (without reference to the reservations claimed by them), they have to be assigned to the open quota.
12. Thus, if a candidate has been able to secure a selection based on merit, by competing with other open category candidates, then, notwithstanding the fact that he had claimed a reservation or was entitled to reservation, he would be a candidate selected under the open category and the reservation that he had claimed or was entitled to becomes otiose or rather irrelevant.
13. It is to be kept in mind that merely because a candidate was entitled to claim reservation or had, in fact, claimed reservation, that would not disentitle him to compete with other open category candidates. If on such competition it is found that he is able to secure a selection based on merit in the open category, his entitlement to be selected under the open category cannot be denied on the ground that he had claimed reservation while applying for
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NC: 2023:KHC:41420 WP No. 22087 of 2023 the selection. It must be noticed here that at the time of making the application and claiming reservation, the candidate would not know whether his merit would alone be sufficient for him being selected or whether he would require the benefit of the reservation that he is entitled to. A candidate who is entitled to claim reservation and claims that reservation, should not be thwarted from securing a selection under the open category merely because he exercised his right to claim reservation.
14. If the contrary procedure of considering his case only under the reserved quota were to be accepted, it would fundamentally mean that reservation is being forced down his throat even when he does not need/want the benefit of such reservation. In fact, if he is allowed to compete with the open category candidates and is able to secure a seat in the open category, then, an additional opportunity is conferred on the candidates who had claimed reservation but were unable to secure a seat in the open category.
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15. It is only after the aforementioned 1st step is applied, the 2nd step of applying reservation to the social causes i.e., horizontal reservation would have to be applied. While doing so, selection has to be made for each category of reservations from the candidates other than those who have been selected in the 1st list, based on their respective merits in their claimed reserved category.
16. To put it differently, the 1st list would be based solely on merit, irrespective of the claim for reservation made and the persons selected under that list will not be counted against the quota earmarked for open category. While considering filling up of reserved quota, the candidates who have already been selected on their own merit under the meritorious category, cannot be considered in the reserved category.
17. After the reserved category is filled up on the basis of merit from amongst the remaining candidates in the reserved category, horizontal reservation (referred to above) will have to be applied. Amongst the candidates
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NC: 2023:KHC:41420 WP No. 22087 of 2023 selected in the reserved category, the sub-quotas created amongst the reserved category for women, physically handicapped, rural candidates, will have to be applied.
18. In the instant petition, the case of the petitioner is that he had secured 70.8095% and the select list actually indicated that he was finally selected. However, as stated above, the 3rd respondent - Institution has refused to appoint the petitioner on the ground that he did not fall within the purview of being physically disabled, to be entitled to a job under the physically handicapped quota.
19. It is not in dispute that that cut-off percentage for the General Merit Category was 68.3809 % i.e., the marks secured by the 4th respondent while the petitioner secured 70.8095%.
20. Since the petitioner has secured more marks than the 4th respondent, it is obvious he ought to have been selected under the General Merit Category, even though he has applied under the physically handicapped quota.
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21. The rejection of the candidature of the petitioner on the ground that the petitioner had claimed reservation under the physically disabled quota and he was, thereafter, found as not being physically disabled is, therefore, erroneous and consequently, Annexure-H is quashed.
22. Respondent No.3 is directed to appoint the petitioner by considering the petitioner as a candidate under the General Merit Category and necessary orders shall be passed within a period of one month to this effect, from the date of receipt of a copy of this order.
Writ Petition is, accordingly, allowed.
Sd/-
JUDGE PKS/RK/List No.: 1 Sl No.: 48