Madhya Pradesh High Court
Mrs. Swati Jasnani vs General Administration Department on 4 December, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
1
W.P. No. 1881/2017
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
Writ Petition No.1881 of 2017
Mrs. Swati Jasnani. ...Petitioner.
Vs.
State of M.P. & others. ...Respondents
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Shri L.C. Patne, Advocate for petitioner.
Shri Abhinav Dhanodkar, Dy. Advocate General for respondent/State.
Shri V.P. Khare, Advocate for respondent/M.P. Public Service Commission.
Shri A.K. Trivedi, Advocatef or respondent No.3
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ORDER
(Passed on 4th December, 2019) The petitioner has filed the present petition being aggrieved by the selection list dated 25.6.2016 issued by respondent No.2 - M.P. Public Service Commission (MPPSC) declaring the result of M.P. State Civil Service Examination, 2013 in which respondent No.3 has been selected for the post of Assistant Director (Finance) and the petitioner has been kept in the waiting list prepared for the post of Block Women Empowerment Officer.
2. Facts of the case, in short, are as under:
(i) The MPPSC issued the advertisement No.5/Examination/ 2013 dated 30.12.2013 inviting the applications from the aspirants for their appointment for various posts under the State Civil Service through State Civil Services Examination, 2013.
The aforesaid advertisement was issued for total 755 posts providing vertical reservation for Unreserved ,SC,ST & OBC and as well as horizontal reservation for women and Persons 2 W.P. No. 1881/2017 with Disabilities candidates as per law. The petitioner applied for appointment on several posts under the "physically handicapped (hearing impairment)" category. Out of 755 posts, respondents No.1 and 2 have reserved 14 posts for physically handicapped persons. These 14 posts reserved for handicapped category have been divided as per cadre strength in each group of posts meant to be filled with persons with benchmark disabilities as per Section 34 of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as "the Act of 2016" for short). Accordingly, out of 14 posts, 7 posts were earmarked for unreserved category; 1 post for Scheduled Caste (SC); 4 posts for Scheduled Tribe (ST) & 2 posts for Other Backward Classes (OBC).
(ii) According to the petitioner, she did well in the examination and secured 998 marks and stood at Sr. No.11 in the order of merit under physically handicapped (hearing impairment), but she has wrongly been placed in the waiting list. According to the petitioner, respondent No.3 had applied under the handicapped category in OBC category. He secured total 1218 marks and has been appointed as Assistant Director, (Finance) in the unreserved category which is not permissible under the law. Because of the wrong selection of respondent No.3 in the unreserved category, the entire selection of handicapped (hearing impairment) persons has been adversely affected and due to which, she could not secure the position in the selection list. The respondents No.1 and 2 have also not followed the provisions of M.P. Civil Services (Special Provisions of Appointment of Women) Rules, 1997 (hereinafter referred to as "Rules of 1997" for short) while making the reservation in respect of physically handicapped 3 W.P. No. 1881/2017 person (hearing impairment) female hence the she is before this Court by way of present writ petition seeking quashment of selection list dated 25.6.2016 so far as it relates to selection of respondent No.3 and her non-selection.
3. After notice in the writ petition, respondent No.1, State Government has filed the return by submitting that out of 755 vacancies as advertised for the State Civil Services Examination 2013, around 311 women candidates have been selected which comes to 41% of the total selection and accordingly, more than 30% of the total seats have been filled by the women candidates, hence the Rules of 1997 have been complied. It is further submitted that out of 755 vacancies, 14 posts have been reserved for physically handicapped (hearing impairment). As per Section 34 of the Act of 2016 and Rule 12 and 13(3) of M.P. Rights of Persons with Disabilities Rules, 2017, number of posts are marked for physical handicapped persons in respective category and accordingly same have been computed on the basis of number of vacancy in a particular cadre/post and also respective roster which is maintained by each Government establishment ,the reservation for handicapped candidates in respective categories have been mentioned in the advertisement itself. The four posts reserved for handicapped (hearing impairment) in ST category have not been filled up because of the non-availability of the candidates.
4. The respondent, MPPSC being respondent no.2 has also filed the return denying the averments made in the petition and also raised the issue of maintainability of the petition. Respondent No.3 has also filed the return justifying his selection on the basis of marks obtained in the examination. He has also 4 W.P. No. 1881/2017 raised an objection that he has unnecessarily been made party in this petition because he has been selected as Assistant Director, (Finance), whereas the name of the petitioner is in the waiting list of Block Women Empowerment Officer, hence the petition is liable to be dismissed.
5. Shri L.C. Patne, learned counsel appearing for the petitioner, submits that the issue raised in this petition is no more res integra as this Court in number of cases has held that the reservation for handicapped category is an horizontal reservation and, therefore, there cannot be any migration from OBC category to General category on the strength of marks secured by such candidate. This has been held by this Court in the case of Sunita Thakre V/s. State of M.P. : 2014 (3) MPHT 186; Bhavna Lakher V/s. State of M.P. (W.P. No.18475/2013 decided on 18.11.2013); Dr. Sanjeev Khemaria V/s. State of M.P. (W.P. No.7260/2016 decided on 21.6.2017); Chairman, Public Service Commission V/s. Dr. Sanjeev Khemaria : 2018 (2) MPLJ 667; State of M.P. V/s. Uday Sisode (R.P. No.1572/2018 decided on 18.10.2019).
6. Shri V.K. Khare, learned counsel appearing for the respondent, MPPSC, submits that the petitioner has not impleaded all the selected candidates as respondents in this petition. The position of reservation has been mentioned in the advertisement itself and the petitioner without raising any objection had participated in the selection process, therefore, now she cannot challenge the very selection process. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Madras Institute of Development Studies V/s. K. Sivasubramaniyan : (2016) 1 SCC 454.
5 W.P. No. 1881/20177. Shri A.K. Trivedi, learned counsel appearing for respondent No.3, submits that the petitioner ought to have impleaded other candidates selected in the category of handicapped (hearing impairment) and petitioner could secure 998 marks and therefore, she is not entitled for selection. There are other candidates who have secured higher marks than the petitioner and they are in the waiting list. The respondent No.3 has been selected on the basis of higher marks obtained by him in the respective category; hence the petition is liable to be dismissed.
8. The MPPSC issued the advertisement No.5/Examination/2013 for 755 posts in various departments of the State. In the advertisement itself, exact position of vacancies post-wise and reservation horizontally and vertically has been explained in tabular form.
9. In the present case, the controversy is in respect of manner of selection in handicapped (hearing impairment) category. The petitioner and respondent No.3 both applied under the said category. The petitioner belongs to 'General' category whereas respondent No.3 belongs to OBC category. When the reservation in the handicapped (hearing impairment) has been specifically mentioned in the respective categories, then the candidate applying under any particular reserved category should be selected in the said category. As stated above, the reservation for handicapped person is horizontal and not vertical reservation. In case of horizontal and compartment-wise reservation, no migration is permissible even if the candidate has secured more marks than a candidate of unreserved category. Respondent No.3 had applied as an OBC candidate under the 6 W.P. No. 1881/2017 handicapped quota, therefore, his name was liable to be considered under the OBC category, but he has been appointed against the post reserved for unreserved handicapped (hearing impairment) category which is not permissible as held by this Court in the case of Dr. Sanjeev Khemaria (supra). Para 4, 5, 6 and 7 of the said judgment are reproduced below :
"4. Learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of Swati Gupta (Ms.) Vs. State of U.P. & Others as reported in (1995) 2 SCC 560, wherein it has been held that-
"Reservation for physically handicapped candidates would be horizontal and the candidates of the above categories selected on the basis of merit, would be kept under the categories of Scheduled Caste/ Scheduled Tribe/ OBC (Other Backward Classes)/ General, to which they belong. It has been explained by way of an example that if a candidate dependent on a Freedom- Fighter selected on the basis of reservation, belongs to the Scheduled Caste, he will be adjusted against the seats reserved for Scheduled Caste. Similarly, if a physically handicapped candidate selected on the basis of reservation belongs to Other Backward Classes (OBC) or General category, he would be adjusted against the seats reserved for OBC or General category."
5. In view of such proposition and the law laid-down by Hon'ble Supreme Court, it is submitted that since respondent No.4 is claiming advantage of horizontal reservation for physically Handicapped candidates, she is entitled to retain her position under the OBC category under which she had applied and not under the General category of handicapped candidates.
6. Same is the ratio of judgment in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Others as reported in (2007) 8 SCC 785, wherein it is held that-
"Social reservations made in favour of the Scheduled Caste, Scheduled Tribe and Other Backward Classes under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, wormen, 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 the 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 stood filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. But the said principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social 7 W.P. No. 1881/2017 reservation for SCs, the proper procedure is first to fill up the quota for SCs 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."
7. Thus, in view of the aforesaid judgments, it is apparent that the horizontal reservation will not allow respondent No.4 to compete for non-reserved post on the basis of their own merit. The principle of horizontal reservation will be applicable and the principle laid-down in the case of Swati Gupta (Ms.) (supra) will apply and respondent No.4 belonging to OBC category can be appointed under OBC handicapped category only and not under General handicapped category. This petition deserves to be allowed and is allowed. It is directed that respondents shall include the name of the petitioner, if found otherwise eligible, in the selection list and issue appointment in favour of the petitioner as a General category handicapped candidate in preference to respondent No.4 with all consequential benefits within a period of three months from the date of issuance of the impugned order. Respondents No.1 to 3 shall also bear the cost of litigation which is quantified at Rs.10,000/- only."
Against the aforesaid judgment, the MPPSC filed Writ Appeal and the same has been dismissed by the Division Bench in the case of Chairman, Public Service Commission (supra). The OBC candidate falling under the category of handicapped (hearing impairment) is not entitled for appointment against the open General category posts even on securing more marks than the last candidate of open General category. Similar view has already been taken by Division Bench of this High Court in case of State of M.P. Vs Uday Sisode and ors. [R.P.No.1572/2018 decided on 18.10.2019) Para 22,23&24 are reproduce as under:-
"22/ Learned counsel for respondents No.1 to 6 has also placed reliance upon sub-section (4) of Section 4 of the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994, which provides as under:-
"4. Fixation of percentage for reservation of posts and standard of evaluation.- (4) If a person belonging to any of the categories mentioned in sub-section (2) gets selected on the basis of merit in an open competition with general 8 W.P. No. 1881/2017 candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (2)."
Sub-section (2) of Section 4 relates to vertical reservation, therefore, the above provision has no relevance for present controversy.
23/ The above position of law has escaped the attention of this Court while passing the order dated 23.3.2018 and dismissing the Writ Appeal No.138/2018 and affirming the judgment of the learned Single Judge. The difference in the concept of migration on the basis of merit in the case of vertical reservation and horizontal compartmentalised reservation has escaped attention of this Court, hence there is an error apparent on the face of record requiring review of the order dated 23.3.2018 passed in WA No.138/2018. Accordingly the said order is reviewed.
24/ Having regard to the fact that the respondents No.1 to 6 being the OBC Police Personnels falling under the horizontal compartmentalised reservation are not entitled to appointment against open general category post on the basis of their claim that they had received more marks than the last candidate of open general category, therefore, no merit is found in the writ petition. Hence the order of the learned Single Judge is set aside and writ petition is dismissed. Review petition is accordingly allowed."
Hence, the appointment of respondent No.3 as Assistant Director, finance against the post reserved for unreserved category "hearing impairment" is illegal hence liable to be set aside.
The details of the selected category of handicapped (hearing impairment) candidates are as under:-
Cat. UNR-HD SC-HD ST-HD OBC-HD
Post ASSITANT DIRECTOR (FINANCE)
45. Madhu Mishra 48. Sachn Silote Post-1 Nil 49. Manjul Kumar Patel
46.Ganesh Kumar (OBC) --------------------------------
(Respondent No.3) Waiting List
47. Vinod Kumar 18. Ajay Choudhari
Shrivastava (selected as Cooperative
--------------------------------- Inspector)
Waiting List
17 Anupam Dubey
( Selected as Block
Empowerment Enforcement
Officer)
Post ASSISTANT COMMISSIONER ( COOPERATIVE )
Ashish Kumar Jain
---------------------------------
Waiting List
1.Amit Kumar Tiwari
(Selected as Nayab
Tehsildar)
Post BLOCK EMPOWERMENT ENFORCEMENT OFFICER
152. Anupam Dubey Post -1 Nil
155. Atiraj Senger
9
W.P. No. 1881/2017
---------------------------------
Waiting List
44. Smt.Swati Jasnani
(Petitioner)
Post NAYAB TEHSILDAR
44. Amit Kumar Tiwari
---------------------------------
Waiting List
16. Atiraj Sengar
Post CO-OPREATIVE INSPECTOR
Post -2 Nil 26. Ajay Choudhary
--------------------------------
Waiting List
14. Hitesh Kumar
10. So far as contention of the respondents that the petitioner has not impleaded all the selected candidates as respondents in this writ petition, who are going to be affected by any change in the selection list because of selection of the petitioner , therefore, writ petition is not maintainable. It is clear from the above table that all the candidate in UNRHD who have secured higher marks than the petitioner have been selected and they have accepted the respective posts without raising any objection. The petitioner could not be selected because of one post in UNRHD has been filled by respondent No.3 who is OBCHD. Had he been selected in OBCHD category the petitioner could have got placement in final selection list.
11. The respondent no.3 has secured more marks than Manjul Kumar Patel who has also been selected as Assistant Director (Finance) against 2nd post reserved in OBCHD category. Manjul Kumar Patel has secured more marks than Ajay Choudhary who has been selected as Co-operative Inspector. Hence Manjul Kumar Patel and Ajay Choudhary are going to be affected by selection of the petitioner. The selection of respondent no. 3 to the post of Assistant Director (Finance) in any case is not going to be affected because he has secured more marks than Manjul Kumar Patel. Hence the petitioner ought to 10 W.P. No. 1881/2017 have done this exercise before filling the writ petition and should have impeded Manjul Kumar Patel and Ajay Choudhary in the writ petition as respondents instead of impleading respondent no.3 alone .
12. Because there is illegality in the selection of respondent No.3, by the respondent no.2 i.e. MPPSC while issuing the final selection list and because of it the entire selection in the category of handicapped (Hearing Impairment) has been disturbed. Hence the selection of Manjul Kumar Patel and Ajay Choudhary cannot be set-aside behind their back as they have not been arrayed as respondents in this writ petition.
13. In view of the above findings, the respondent Nos.1 & 2 are directed to consider the name petitioner for selection to any post under the Unreserved handicapped (hearing impairment) category if available, subject to fulfilling eligibility criteria. Hence writ petition is allowed with cost of Rs. 10,000/- (Ten Thousand) payable to the petitioner.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.12.06 16:32:48 +05'30'