Gujarat High Court
Harsh Popatlal Patel & 39 vs District Primary Education Officer & 2 on 13 January, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/9091/1998 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9091 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HARSH POPATLAL PATEL & 39....Petitioner(s)
Versus
DISTRICT PRIMARY EDUCATION OFFICER & 2....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1 - 40
MR PRANAV TRIVEDI, AGP for the Respondent(s) No. 3
MR MANISH J PATEL, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 3
THAKKAR AND PAHWA, ADVOCATES, ADVOCATE for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 13/01/2016
ORAL JUDGMENT
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1. Petitioners have prayed for a direction to quash and set aside two GRs dated 21.01.1986 and 30.09.1994 produced at Annexure-C colly. insofar as they provide for reservation in favour of different reserved categories in excess of 50% of the posts available. The petitioners have consequently prayed for a direction for preparation of fresh select list for recruitment to the post of Vidhya Sahayaks in Sabarkantha district. These prayers are made in following background:-
1.1 Respondents Nos.1 and 2 are the authorities of Sabarkantha District Panchayat, Respondent N.3 is State of Gujarat. Respondents Nos.1 and 2 had issued an advertisement in the local newspaper published on 02.07.1998 inviting applications from eligible candidates for the posts of Vidhya Sahayaks, for which the vacancies had arisen in the said district. There were total of 973 vacancies, of which 5% would be filled up by the candidates having C.P.Ed qualification and 4% would be filled in by the candidates having ATD qualification.
Rest of the 91%, i.e. 885 posts would be filled up by the candidates holding the degree of PTC. The circulars at Annexure-C colly. prescribe reservation of 9% in favour of SC candidates and 17% in favour of ST candidates.
Additional reservation of 27% for Socially and
Educational Backward class candidates and 4% for
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physically handicapped candidates was also prescribed. 1.2 The petitioners, 40 in number, all belong to general category. In other words, they did not fall in any of the reserved categories. They possess the minimum educational qualification of PTC for the posts in question and therefore, applied for being appointed as Vidhya Sahayaks. They failed to secure appointments, which according to them was on account of faulty implementation of the policy of reservation. They contend that reservation in any recruitment process cannot be under any circumstances exceed 50%. In the present case, the authorities had reserved 57% of the posts for various reserved categories, thereby depriving general category candidates to the extent of 7% of the vacancies.
1.3 Respondent No.2 has filed reply, in which primary facts are not in dispute. In such reply, it is pointed out that:-
"As mentioned hereinabove, 885 posts for P.T.C. candidates and 20% i.e. 177 posts as per waiting list and it would be total to 1062 candidates, therefore, aforesaid candidates are eligible for the purpose of preparing selection list. In pursuant to the advertisement as per the applications received by the concerned District Education Committee, those who have secured highest marks, they were called for the purpose of interview on dt. 10.08.98 to 14.08.98 and also on 21.9.98 and interview candidates ultimately selection list was Page 3 of 13 HC-NIC Page 3 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT prepared for total 1062 candidates. The Schedule Caste percentage of reservation is 9% and for schedule caste number of candidates are
96. the reservation for Scheduled Tribe i.e. 17% and numbers of candidates are 181. So far as reservation for Socially and Economically Backward Class is concerned, the reservation is 27% and numbers of candidates are 287 and also so far as reservation for physically handicapped persons are concerned, their reservation is 4% and numbers of candidates are
42. So far as reservation for Bhangi community is concerned the reservation is only of two candidates at a whole district level and numbers of candidates are concerned only 2 and general category which is 43% and number of total candidates are 454. On the basis of the aforesaid selection list at first stage the appointment which were given to the 444 candidates on 29.10.98 and 30.10.98, the rest of the candidates i.e. 401 within a short time appointment orders will be issued."
1.4 It is further stated that:-
"6. In reference to para 4 of the petition I say and submit that so far as percentage of reservation of the numbers of the candidates are concerned for the district, the same are as under:-
Scheduled Caste 9%
Scheduled Tribe 17%
S.E.B.C. 27% and
Physically handicapped 4%
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Total 57%
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Therefore, total reservation is 57%, therefore, what is mentioned hereinabove, the percentage of reservation which is more than 50%....."
1.5 Respondent N.1 has also filed reply, in which it is stated as under:-
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2.7.1998 an advertisement was issued to fill up 973 vacancies of Vidya Sahayak. I say that out of 973 vacancies 49 vacancies are for C.P.Ed. Candidate, 39 vacancies are for ATD candidates, and 885 vacancies are for PTC candidates. I say that petitioners are PTC qualified and the petitioners have challenge the selection list of PTC candidates.
I say that list of 1062 candidates is prepared for PTC candidate. I say that in preparing the selection list of 1062 candidates 885 actual vacancies and 177 seats for waiting list is taken into account. I say that all the candidates were interviewed after considering the merits of 1062 candidates is prepared considering the reservation policy as provided in Government resolution dtd. 30.9.1994 in following manner:-
Division Percentage of No. Of
reservation candidates
Scheduled Caste 9.00% 96
Scheduled Tribe 17.00% 181
Socially and 27.00% 287
Educationally Backward
Class
Physically Handicapped 0-4% 42
Backward Class 2 posts 2
General Category 43.00% 454
100.00% 1062
I deny that a selection list of 1165 candidates is prepared. I say that out of the selection list as prepared above 454 appointment is given on 29.10.1998 and 13.10.1998 and 401 appointments will be given in near future. I say that the reservation is provided in pursuant to GR dtd. 10.9.1994. I say that this Hon'ble Court in Spl.C.A.No.6305/98 after considering the decision of Supreme Court reported in AIR 1993 SC 477 has held that the policy of providing more than 50% reservation is justifying. Annexed hereto and marked as ANNEXURE-'I' to this petition is the copy of the judgement delivered in Spl.C.A.No.6305/98."
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2. On the basis of such material on record,
learned Counsel Shri Pujara for the petitioners contended that the respondents committed a serious error in prescribing and implementing the reservation far in excess of ceiling of 50% prescribed by the decision of the Supreme Court in case of Indra Sawhney Vs. Union of India & Ors., reported in AIR 1993 SC, page No.477. This in turn deprived the general category candidates their rightful consideration towards the vacancies which ought to have been kept unreserved. Counsel further submitted that even the reservation in favour of handicapped candidates was not vertically applied, thereby further increasing the reserved quota.
3. Learned Counsel Mrs.Pahwa was earlier appearing for Sabarkantha District Panchayat authorities. She stated that the said respondents have taken away file and she no longer has any instructions to appear for them. It appears that, she has been replaced by Advocate Shri Manish Patel. However, he was not present when the matter was heard at length.
4. Learned AGP stated that he has no papers and was therefore unable to assist the Court.
5. From the record, it thus emerges that for a particular recruitment process for the posts of Vidhya Page 6 of 13 HC-NIC Page 6 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT Sahayaks, the recruiting authority had applied reservation percentage of 9% in favour of SC, 17% in favour of ST and 27% in favour of SEBC candidates. The total reservation amongst these reserved classes, therefore, come to 53%. 4% of the vacancies were reserved for handicapped candidates. Admitted position thus is that of the total number of available vacancies, 57% were reserved in favour of different reserved categories. 43% was available to general category candidates. Nevertheless, the question of 4% of the handicapped candidates cannot be, for want of sufficient data, mixed up in the present case since it is not known whether such vacancies were filled up by applying horizontal reservation or not. In other words, it is entirely possible that such 4% vacancies earmarked for physically handicapped candidates would also include general category candidates. I would, at least, therefore, proceed on the basis that the reservation for three reserved category classes of candidates was 53% in the said recruitment process.
6. This has been frowned upon by the Supreme Court in case of Indra Sawhney (supra), in which it was held and observed as under:-
"94A We must, however, point out that Clause (4) speaks of adequate representation and not proportionate representation. Adequate Page 7 of 13 HC-NIC Page 7 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits - and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-
ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.
It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT the entire society. It is relevant to point out that Dr.Ambedkar himself contemplated reservation being "confined to a minority of seats" (See his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept.
From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."
7. The prescription of reservation to the extent of 53% is thus directly opposed to the Supreme Court view in case of Indra Sawhney (supra). The respondents have, however, relied on second-last sub-para of said para-94A of the decision in which the Supreme Court kept a small Page 9 of 13 HC-NIC Page 9 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT window open for the authorities to exceed such reservation above 50% under certain extraordinary situations inherent in the great diversity of the country. It was observed that in far-flung and remote areas, the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way and therefore, some relaxation in this strict rule may become imperative. The respondents also rely on the decision of the learned Single Judge of this Court in case of Patel Linaben Manilal Vs. State of Gujarat dated 18.08.1998 in SCA No.6305 of 1998, in which the reservation in excess of 50% was, in the case on hand, upheld in view of the above noted observations of the Supreme Court.
8. In my view, however, the said observations of the Supreme Court are in the nature of providing exception to a rule. The main rule having requirement of reservation not exceeding 50% of the vacancies, the exception being in extraordinary circumstances for the special reasons noted, deviation from such ceiling. Such exception cannot be made a norm nor the rule can be breached without valid justification. If, therefore, Panchayat and the State authorities desired to prescribe Page 10 of 13 HC-NIC Page 10 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT reservation in excess of 59% in a given situation of the district, there ought to be sufficient material to justify the same. Mere prescription without any matching material to support deviation from the rule would not permit the authorities to ignore the very foundation, the ratio of the decision. Any other view would enable the authorities to ignore the cap of the reservation with impunity and to plead exception to the rule.
9. While, thus, holding that the excess reservation in favour of SC, ST and OBC together, to the 3% above 50% permissible limit was unlawful, the question of molding relief would arise. The selection process was undertaken in the year 1998. The petition was filed when the appointments were not yet made. Shortly after completion of the selection process, appointments would have been made and the appointed candidates would, therefore, be working since more than 17 years by now. They have not been joined as parties to this petition. It would therefore be out of question to upset any of the appointments already made, even if they were in excess of the permissible reservation quota. Only present 40 petitioners have raised a grievance. Remaining candidates, even if adversely affected, have not pursued the litigation. Many of the petitioners also would have by now settled down in alternative occupation and would Page 11 of 13 HC-NIC Page 11 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT not, even if allowed to, join service at this point of time. However, I cannot deny them opportunity to opt for such service, if otherwise they come within the selection zone on the basis of additional 3% vacancies being made available to general category candidates.
10. Under the circumstances, this petition is disposed of with following directions:-
I. The respondent authorities and particular respondents Nos.1 and 2 shall calculate 3% of 885 vacancies which were earmarked for PTC candidates, i.e. 27 vacancies, which will be made available to the general category candidates.
II. If the petitioners, on the basis of their merits, come within the selection against these additional 27 vacancies for general category candidates, they would be offered appointment as Vidhya Sahayaks against first available future vacancies within the quota of general category candidates.
III. If any of the petitioners come within the zone and accept appointment, they shall be treated to have been appointed from the initial date when other selected Page 12 of 13 HC-NIC Page 12 of 13 Created On Sat Jan 16 01:29:35 IST 2016 C/SCA/9091/1998 JUDGMENT candidates were so appointed. Their services shall be treated continuous for all purposes except actual pay and allowances. Willingness of the petitioners would depend on their communicating to the authorities to this effect latest by 01.03.2016.
Direct service is permitted.
(AKIL KURESHI, J.) SHITOLE Page 13 of 13 HC-NIC Page 13 of 13 Created On Sat Jan 16 01:29:35 IST 2016