Jharkhand High Court
Smt Prabha Ranjan Gupta vs The State Of Jharkhand And Ors on 6 May, 2014
Equivalent citations: 2014 (3) AJR 699
Author: R.Banumathi
Bench: Chief Justice, S.Chandrashekhar
IN THE HIGH COURT OF JAHRKHAND AT RANCHI
L.P.A. No. 338 of 2013
Smt.Prabha Ranjan Gupta ........ Appellant
-Versus-
The State of Jharkhand and ors.....Respondents
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE S.CHANDRASHEKHAR
.....
For the Appellant : M/s Sujit Narayan Prasad &
Birendra Burman,Advocates
For the State : Mr.Rajesh Kumar,G.P.V
For Respondent no.4: Mr.Anoop Kumar Mehta
....
C.A.V. on 29th April, 2014 Delivered on 6th May,2014
R.Banumathi,C.J. - This Letters Patent Appeal is preferred against
the judgment and order dated 2.9.2013 passed in W.P.(S) No.75 of
2003 dismissing the writ petition preferred by the appellant for
consideration of her case for appointment to the post of Drawing
Instructor in the Industrial Training Institute under the Labour,
Employment & Training Department , Government of Jharkhand
in terms of Advertisement No.50 dated 8.9.2009.
2. The Jharkhand Combined Entrance Competitive
Examination Board vide Advertisement no. 50 dated 8.9.2009
advertised several posts of Instructors in various trades and in the
said advertisement 24 posts of Drawing Instructors were
advertised. The examination was held on 18.7.2010 and the result
of the successful candidates was published in which the appellant
secured 34 marks as per the result of the JCECE Board and was
placed at the CML Rank no.34/01.
2
3. The grievance of the appellant is that even though the
appellant was shown to have secured 34 marks and she has
ranked 1st among the women candidates, the Board did not
permit the appellant to participate in counselling without
assigning any reason. The appellant filed representation dated
29.11.2010before the respondents-authorities that she has not been permitted to appear in the interview and she requested to allow her to appear in the interview; but to no effect. The petitioner then preferred W.P.(S) No. 75 of 2013, seeking direction to appoint her on the post of Drawing Instructor in the Industrial Training Institute under Labour, Employment & Training Department, Government of Jharkhand in terms of Advertisement No.50 dated 8.9.2009. The writ petition was dismissed by the Writ Court on the ground that the appellant was shown as 34th rank in the general category and the persons upto 14th rank were only appointed in the said category and at this stage the appellant cannot seek any reservation for women category, which is not in terms of the advertisement.
4. Being aggrieved by the order of the learned Single Judge, the appellant preferred this Letters Patent Appeal.
5. Mr.Sujit Narayan Prasad, learned counsel appearing for the appellant, contended that the appellant had been declared first under women category but even then she has not been appointed to the post for the reasons best known to the respondents. It was further submitted that as per the Reservation Policy of the State Government a specific provision 3 has been made, providing 5% reservation to the women candidates in each category by giving them the benefit of reservation and as per the Reservation Policy prevalent in the State of Jharkhand, the appellant even though belong to the general category is entitled to get the benefit of reservation to the extent of 5%, since the appellant has been placed at serial no.1 in the women category under the 'general category'.
6. Mr.Rajesh Kumar, learned G.P.V appearing for the State of Jharkhand, submitted that the candidates upto rank 14 in general category only have been called for counseling and the appellant was much below than those who have been called for counselling under the general category and, therefore the appellant was not called for interview. The learned counsel further submitted that the appointment process has already been completed in accordance with law and it is settled law that the panel prepared for appointment cannot survive for years to years and the claim of the appellant seeking appointment is not sustainable.
7. We have considered the rival contention of the parties and carefully perused the order of the learned Single Judge and other materials on record.
8. The Jharkhand Combined Entrance Competitive Examination Board vide Advertisement no. 50 dated 8.9.2009 advertised several posts of Instructors in various trades and in the said advertisement 24 posts of Drawing Instructors were advertised. For the purpose of appointment, a selection 4 committee has been constituted. According to the respondents, due to non completion of buildings/non functioning of/ non running of or non handing over of complete buildings of the Government, I.T.I. Chatra, Gumla, Simdega, Jamtara, Jhagratand and Koderma, the selection committee recommended the appointment of only 16 candidates in lieu of 24 vacancies of Drawing Instructors. Out of sixteen candidates recommended by the selection committee, three candidates have already been appointed directly in the year 2009 as per the policy of the Government from Aadim Janjati category by relaxing all the rules and regulations of the Government for appointment . The Government of Jharkhand has also approved the recommendation of the selection committee.
9. As pointed out earlier, the appellant has secured only 34 ranks and she has been placed in the rank of 34/01. The candidates ranked upto 14 were selected and the appellant ranked much below the last candidate considered for appointment/counseling and the appellant was not considered for counselling/appointment.
10. The contention of the appellant is that even though the appellant belongs to general category, as per the policy of the Government horizontal reservation of 5% to women candidates of each category, she is entitled to the benefit of reservation to the extent of 5% as the appellant has ranked at serial no.1 in the women category under the general category. The learned counsel appearing for the appellant submitted that since none 5 of the women candidates in the general category has been appointed to the said post, as such non consideration of the case of the appellant is contrary to the reservation policy of the State of Jharkhand and is, thus, arbitrary. It was submitted that since there was specific reference of effectiveness of the Reservation Policy in the advertisement giving benefit of 5% reservation to women candidates in each category, the appellant is entitled to get the benefit of 5% reservation, out of 12 posts of general category, in terms of Advertisement No.50 dated 8.9.2009.
11. The learned counsel for the appellant placed reliance upon the judgment rendered in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and ors. (2007) 8 SCC 785. In paragraphs-8 and 9 of the judgment, the Hon'ble Supreme held as under :
"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 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 6 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."
12. The above judgment only explains the principles of horizontal reservation explaining the difference between the vertical and horizontal reservation. In the present case, out of 24 posts of Drawing Instructors, 12 posts were meant for general category to which the appellant belongs. There could have been reservation for women candidate only, had there been 20 posts of general category but since there were only 12 posts for the general category, there cannot be any horizontal reservation for woman. Moreso, when out of total 24 posts, only 16 candidates were appointed for the posts of Drawing Instructors.
13. It was then submitted by the learned counsel for the appellant that out of 16 posts of Drawing Instructors, 12 posts were meant for the general category, giving 5 % horizontal reservation for women candidates of the said 12 posts, which works out to 0.6 % and that 0.6 % ought to have been rounded 7 off to 1% and the appellant , who figured at serial no.1 in women category, ought to have been considered for appointment.
14. In support of his contention of 0.6% which ought to have rounded off to one, being more than 0.5% , the learned counsel placed reliance upon (2008) 1 SCC 233 ( Bhudev Sharma Vs. District Judge, Bulandshahr and anr). The said case relates to recruitment of Class-III post in Bulandshahr Judgeship in Utter Pradesh . The Utter Pradesh Government has reserved two per cent post for physically handicapped persons for direct recruitment in all groups of Government services. There were altogether 30 posts of Class-III posts advertised in Bulandshahr Judgeship in U.P. and 2% of 30 is 0.6 per cent and the Hon'ble Supreme Court held that since 0.6% is more than half, the same be rounded off to one and one out of the 30 posts is reserved for physically handicapped and since there was no other physically handicapped person other than the appellant thereon, it was held that the appellant was entitled to the post reserved for physically handicapped person. The Hon'ble Supreme Court held that the appellant thereon was entitled to the post reserved for physically handicapped person, taking into consideration that by virtue of interim order of the Hon'ble Supreme Court, the appellant thereon was working as a regular Class-III employee.
15. The ratio of the above decision cannot be applied to the case in hand, mainly for two reasons; Firstly, out of 24 posts advertised, the selection committee in all categories recommended only 16 candidates, out of which 3 candidates have already been appointed 8 directly in the year 2009 as per policy decision of the Government from Aadim Janjati Category by relaxing all the rules and regulation of the Government for appointment. Out of total 24 posts, only 16 candidates were appointed and, therefore appellant is not right in contending that the general category candidate was 12 and the percentage under the reservation for woman is 5% and the horizontal reservation works out to be 0.6 % and that the same is to be rounded off to one; Secondly the selection process has already been closed in the year 2011.
16. It is also pertinent to note that 5% reservation for women is applicable only for domiciles of the State of Jharkhand, in view of the letter no.5448 dated 12.9.2011 of Personnel, Administrative Reforms and Official Languages Department. According to the respondents, the appellant has not been able to provide domicile/ residential certificate of Jharkhand for the purpose of employment and as such her claim for reservation is unfounded.
17. In so far as the grievance of the appellant that another woman candidate Kanta Dungdung was called for counselling, according to the respondents, the said Kanta Dungdung was having CML rank 45 (S.T.) was called for counseling as she was able to secure the required CML rank as per roster point of Personnel, Administrative Reforms and Rajbhasa Department for S.T. candidate and that she was not appointed/called for counselling in the general category. The appellant being a general category candidate cannot claim similarity with a S.T. Candidate.
18. Since the appellant was not able to secure the required 9 CML rank as per roster of the Personnel, Administrative Reforms Department and hence she was not called for counselling. It is settled law that mere obtaining minimum qualifying marks cannot create any right of appointment upon the candidate.
19. The learned Single Judge rightly dismissed the writ petition and we do not find any reason, warranting interference with the order of the learned Single Judge.
20. In the result, the Letters Patent is dismissed.
( R.Banumathi, C.J. ) ( S.Chandrashekhar, J.) Jharkhand High Court,Ranchi The 6th May, 2014 G.Jha/A.F.R.