Allahabad High Court
Lal Pradeep Singh And Anr. vs State Of U.P. Thru. Prin. Secy. Revenue ... on 29 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 440
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 23 Case :- SERVICE SINGLE No. - 20021 of 2018 Petitioner :- Lal Pradeep Singh And Anr. Respondent :- State Of U.P. Thru. Prin. Secy. Revenue And Ors. Counsel for Petitioner :- Rajendra Pratap Singh,Surendra Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard learned counsel for the parties.
By means of this petition the petitioners have assailed the order dated 23.6.2018 passed by the District Magistrate, Pratapgarh rejecting the representation of the petitioner which was preferred seeking benefit of reservation admissible for the dependants of freedom-fighters.
Since there is no dispute that the petitioners are dependants of freedom-fighters, therefore, the relevant facts to that effect are not being dealt with.
The precise dispute is that the reservation provided for the dependants of freedom-fighters is 2% of the vacancies in view of section 3 (1) of The U.P. Public Services (Reservation For Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereinafter referred to as Act, 1993 in short).
As per impugned order such reservation would be admissible vertically as the vertical reservation shall be given to such candidates from horizontal reservation, therefore, out of total 182 posts of Lekhpal the unreserved posts are 92 and if 2% reservation is applied on 92 posts it will come out as 1.84 and in view of the Government Order dated 28.8.2015 which provides that the number, if it does not come in clear number then no rounding of shall be provided in that case, therefore, only one post shall be reserved for the dependants of freedom-fighters and on that post the appointment has already been provided.
Learned counsel for the petitioner has referred Rule 3 of the Act, 1993 is being reproduced herein below:
"3. Reservation of vacancies in favour of physically handicapped etc. - [(1) There shall be reserved at the stage of direct recruitment],-
[(i) in public services and posts two percent of vacancies for dependents of freedom fighters;
(i-a) in public services and posts other than Group 'A' posts or Group 'B' posts, on and from May 21, 1999 two per cent of vacancies, and on and from the date on which the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) (Amendment) Act, 1999 is published in the Gazette, five per cent of vacancies for Ex-servicemen.] [((ii) In such public services and posts as the State Government may, by notification, identify not less than four per cent, of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely-
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf blindness in the posts identified for each disabilities.] (2)[* * *] (3) The persons selected against the vacancies reserved under subsection (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to[Other Backward Classes of Citizens], category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments.
4. [* * *] [(5) Where due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried forward for further two selection years, whereafter it may be treated to be lapsed.] As per learned counsel for the petitioner sub-rule 3 of the Rule 3 provides the modality as to how the persons who have been provided reservation under Rule 3 shall be adjusted. It categorically provides that if a selected person belonging to particular category he / she shall be placed in that quota by making necessary adjustments. Perhaps, this modality has been given to adjust the reserved category candidates within a ceiling of 50% of reservation.
It has been informed by the learned counsel for the petitioner that the petitioners no. 1 and 2 are in the waiting list at serial no. 1 and 2 of the category of dependant of freedom-fighters.
Learned counsel for the petitioner has drawn attention of this Court towards the decision of this Court in re: Pawan Kumar vs. State of U.P. & another reported in (2018) 3 UPLBEC 2298 whereby the identical issue relating to the disabled persons have been considered and the legal analogy of this judgment may be applied in the present case. By means of aforesaid judgment not only the Government Order dated 28.8.2015 has been considered but it has also been considered as to what reservation should be provided to these candidates of special category as per special category e.g. dependants of freedom-fighters and physically handicapped persons. It has also been considered as to whether they should be provided horizontal reservation from vertical or vertical reservation from horizontal. Para 11, 12 and 13 of the aforesaid judgment are being reproduced herein below:
11. 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%.
12. 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......"
13. 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%."
[Emphasis supplied] This Court in re: Pawan Kumar (supra) has considered the dictum of Hon'ble Apex Court in re: Indra Sawhney (supra) and National Federation of Blinds and others (supra) and considering the ratio of aforesaid judgment of Hon'ble Apex Court it has held that the candidates belonging to the special category of the said socially reserved or unreserved category shall be given the horizontal reservation and they shall be adjusted from their specific category so that said reservation would not exceed 50% ceiling.
Sri Vishal Verma has tried to justify the impugned order dated 23.6.2018 but in view of the decision of this Court in re: Pawan Kumar (supra) wherein the dictum of Hon'ble Apex Court in re: Indra Sawhney (supra) and National Federation of Blinds and others (supra) he could not properly justify the said order.
Having heard learned counsel for the parties and perused the material available on record and considering the dictum of this Court in in re: Pawan Kumar (supra) wherein the dictum of Hon'ble Apex Court in re: Indra Sawhney (supra) and National Federation of Blinds and others (supra) have been relied upon, I am of the considered opinion that the order dated 23.6.2018 passed by opposite party no. 3, Annexure no. 3 to the writ petition is not sustainable in the eyes of law, therefore, the said order is hereby quashed.
In view of dictum of Hon'ble Apex Court in re: in re: Pawan Kumar (supra) as well as the dictum of Hon'ble Apex Court in re: Indra Sawhney (supra) and National Federation of Blinds and others (supra) the 2% reservation for the total 182 vacancies relating to the dependants of freedom-fighters would come out as 3.64 which shall not be rounded of and the same shall be read as 3 in view of the Government Order dated 28.8.2015. Since 1 person in such category has already been appointed, therefore, the opposite parties should provide two vacancies in this quota of dependants of freedom fighters for which the petitioners who are in the waiting list at serial no. 1 and 2 may be appointed.
A writ in the nature of mandamus is issued commanding the opposite parties to consider the candidature of the petitioner and appointing him on the post of Lekhpal under the 2% reservation for the category of dependant of freedom-fighters in view of the decision of this Court in re: Pawan Kumar (supra).
The compliance of the aforesaid order shall be made within two months from the date of production of the certified copy of the order of this Court.
Writ petition is allowed.
No order as to costs.
Order Date :- 29.1.2020 Om [Rajesh Singh Chauhan, J.]