Rajasthan High Court - Jaipur
Mahendra Kumar vs State (Panchayati Raj Dep)Ors on 3 December, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.15843/2012 (Babulal Dhaka Versus State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.15842/2012 (Sunit Arya Versus State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.14004/2012 (Mahendra Kumar Versus State of Rajasthan & Ors.) Date of Order :: 03rd December, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Mukesh Bijarnia, for the petitioner/s. Mr.Shantanu Kumwat for Mr.S.N.Kumawat, AAG. By the Court:
These writ petitions pertain to selection to the post of Teacher Gr.III (Level II) (Social Science).
The grievance of the petitioners is regarding reservation in regard to OBC candidates. It is stated that 25 seats are meant for OBC (General) and 10 posts for Female, out of which, 2 posts are for widow. The respondents have selected only 22 candidates from OBC as against total 35 vacancies, if posts for female are also clubbed. There is a shortfall of 13 candidates of OBC. If the 13 posts are filled from OBC candidates, the petitioners get fair chance for appointment.
Learned counsel for the respondent/s, on the other hand submits that reservation has been provided as per the rules. As against 25 posts for OBC (General) and 10 Female, 35 candidates to be arranged in OBC category leaving those, who could find place in the open category based on their merit. The respondent/s prepared the list of 35 candidates of OBC category after taking care of reservation meant for female candidates. After arranging the said list, when reservation for disabled and Ex-serviceman was to be provided, they were found in OBC category. Accordingly, names of last 13 OBC candidates were removed to make room for Ex-serviceman and disable category, hence, there is no violation of reservation rules.
I have considered the submissions made by learned counsel for the parties and perused the record.
Before dealing with the issue raised herein, it would be gainful to refer that there exists two type of reservation. One is social reservation given to SC/ST, OBC and Backward Class and another is special reservation given to female, Ex-serviceman, disable persons etc. So far as social reservation is concerned, it is provided on vertical basis whereas special reservation is on horizontal basis, which cut across vertical reservation. To have a proper arrangement of vertical and horizontal reservation, the issue has been dealt with by the Hon'ble Apex Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. reported in (2007) 8 SCC 785. Relevant para Nos.6 to 9 of the aforesaid judgment is quoted hereunder for ready reference :
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 India1992 Supp (3) SCC 217, the principle of horizontal reservation reservation was explained thus: (SCC pp.735-36, 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 Article16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article16] 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 Article16. 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 Article15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertial reservations, was explained by this Court in AnilKumarGupta v. State of U.P. (1995) 5 SCC 173 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 against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized 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.)
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 Article16(4)are vertical reservations. Special reservations in favour of physically handicapped, women, etc. under Articles16(1)or15(3)are horizontal reservations. Where a vertical reservation is made in favour of a Backward Class under Article16(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, 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 the 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.) The perusal of the paras quoted above shows as to how the vertical and horizontal reservation is to be provided. According to the said judgment, first list has to be arranged to provide open category and second for vertical reservation. Therein, any SC/ST and OBC candidate finds place in open category based on his/her merit is not counted towards vertical reservation. After arranging the list of open category, list of SC/ST and OBC candidates is arranged strictly in order of merit. After arranging the list for vertical reservation, it is to be noticed as to whether horizontal reservation is satisfied while granting vertical reservation. To clarify the aforesaid, if five posts are to be provided to EX-serviceman and while arranging the list of open category, SC/ST and OBC, if five Ex-serviceman are found place in merit, then their reservation is satisfied. However, if no Ex-serviceman is available while arranging list of open category or vertical reservation then from the Ex-serviceman categories, top meritorious five candidates would be taken up and if they belong to a particular caste or category, say, open category, SC/ST and OBC then to make horizontal reservation and room for them, five candidates would be taken out from the bottom.
For illustration, if one Ex-serviceman is of general category and two are OBC and other two are ST then from the list of open category, one candidate from bottom would be removed and for OBC, two candidates would be taken out and in the same way, two candidates from the ST category. This is to provide reservation on horizontal basis to Ex-serviceman. The aforesaid formula has been given by the Hon'ble Apex Court and is being applied by the respondents. Here, all the posts meant for Ex-serviceman have to be filled as they could not find place while arranging list of open category and vertical reservation. Accordingly and unfortunately for the petitioners that all Ex-servicemen and disable persons are from OBC category only, like 11 are Ex-servicemen and two from disable category, totaling thirteen from Backward Class category, thus names of 13 candidates, out of 35, were taken out from bottom to make room for Ex-serviceman quota so as the quota meant for disabled person. The list has been arranged by the respondents as per the formula given by the Hon'ble Apex Court in the case of Rajesh Kumar Daria (supra).
Accordingly, there is no illegality in the action of the respondents and I do not find any merit in view of the detailed judgment given above. Hence, the writ petitions so as the stay applications are dismissed.
(M.N. BHANDARI), J.
S/No.53-55 Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A.