Himachal Pradesh High Court
Kritika Tanwar vs State Of H.P. And Another on 31 August, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP No. 298 of 2020
.
Decided on: 31.08.2020
Kritika Tanwar ...Petitioner.
Versus
State of H.P. and another ...Respondents.
___________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 Yes
For the Petitioner: Mr. Rakesh Kumar Sharma, Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate General, with
Mr. Vinod Thakur and Mr. Desh Raj
Thakur, Additional Advocate Generals.
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Justice Tarlok Singh Chauhan, J.(Oral)
Whether a candidate belonging to a reserved category can be denied the consideration against the open category, which is mentioned as 'General Category'? Is the moot question to be determined in the present petition.
2. The brief facts of the case are that the vacancy announcement for 38 posts of Constables i.e. 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 2 24 vacancies of Brass Band (Male) of Shimla District, 11 (09 M + 02 FM) of 1st HPAP Junga of Police .
Orchestra and 03 left out vacancies of 2 nd IRBn, Sakoh of Brass Band (Male) by way of direct recruitment were made vide Government of H.P. letter No. Home (A) B (1) 4/2009 dated 12.02.2019 read with PHQ Shimla letter No. PII (3) R&P Rules/Band Staff/2011606773 dated 22.02.2019,r DGP/HP, letter No. PII (3), R&P Rules/Band Staff/20177152 dated 06.03.2019 and Standing Order No.1 of 2019.
3. The applications were invited from the eligible candidates offline on prescribed format on or before 30.04.2019 upto 5.00 P.M. in the office of the District Superintendent of Police of the District of which the candidate is a native/resident.
4. As per notification of vacancies circulated vide office of Dy. Inspector General of Police, Southern Range vide letter No.22932500 dated 08.03.2019 in which 02 posts in Police Orchestra were advertised where 01 of them was reserved for General Category (GC)/Unreserved (UR) and 01 was advertised for GC/UR for Female Versatile Singer. No post was ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 3 advertised for Female Singer SC/UR category for which the petitioner had applied in her application form. Total .
13 Female Candidates had applied for the post of Constable as Versatile Singer in Police Orchestra.
5. On the basis of the application forms submitted by the candidates, the candidature of 07 eligible Female Candidates was selected and were called for professional efficiency/skill test for the post of Constable Versatile Singer whereas the candidature of 06 Female Candidates of SC/UR, OBC/IRDP category including the petitioner was rejected and they were not called for professional efficiency/skill test as they had applied for different reserved categories which were not allotted/specified as per the notification issued for the post of Versatile Singer.
6. The petitioner had applied as SC/UR Female candidate in her application form (Annexure R3) and the same was rejected by the respondents on the ground that as per the instructions mentioned in the application form, "category and subcategory as mentioned at serial No.11 of the application form shall be treated as final and will not be changed under any ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 4 circumstance during the recruitment process." It is further averred that as there was no posts advertised .
for Female Singer SC/UR category and the post was advertised only for general category, therefore, the claim of the petitioner could not be considered as she belonged to SC category.
7. We have heard learned counsel for the parties and have gone through the material placed on record.
8. It is more than settled that an open/general category does not indicate a reservation for general caste candidate, but a category open for all candidates be it general caste or reserve caste. The placement in the open/general category is strictly as per merit position obtained by the candidate. Accordingly, if the petitioner belongs to reserve category candidate, has obtained higher marks to that of a general caste candidate, then she cannot be denied the benefit of consideration in the general/open category.
9. In taking this view, we are supported by the judgment of the Hon'ble Supreme Court in Jitendra ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 5 Kumar Singh and another vs. State of Uttar Pradesh and others (2010) 3 SCC 119, wherein it was .
held that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate. It shall be apt to reproduce the relevant observations as contained in paras 49, 51 and 52 of the judgment, which are extracted below:
"49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16 (1) of the Constitution of India.
Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates at par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.
51. We are further of the considered opinion that the reliance placed by Mr. Rao and Dr. ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 6 Dhawan on the case of Post Graduate Institute of Medical Education and Research vs. .
K.L.Narasimhan (1997) 6 SCC 283 is misplaced.
Learned Sr. Counsel had relied on the following observations: (SCC p.293, para 5) "5......Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate."
The aforesaid lines cannot be read divorced from the entire paragraph which is as under: "5.It was decided that no relaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty; if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If no Dalit and Tribe candidate was found available, the post would be filled from general candidates; otherwise the reserved post would be carried forward to the next year/advertisement. It is settled law that if a Dalit or Tribe candidate ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 7 gets selected for admission to a course or appointment to a post on the basis .
of merit as general candidate, he should not be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate."
These observations make it clear that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate.
52. In the present case, the concessions availed of by the reserved category candidates in age relaxation and fee concession had no relevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgment in fact permits reserved category candidates to be included in the General Category Candidates on the basis of merit."
10. An identical issue came up before the learned Single Judge of the Punjab and Haryana High Court in CWP No. 10839 of 2017, titled Amritpal Singh and another vs. State of Punjab and others ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 8 and connected matter, decided on 20th January, 2020 wherein it was observed as under:
.
"Whether a candidate belonging to a reserved category, who has filled up his application for a particular reserved category but marks a wrong subcategory, can he be denied the consideration against the open category seat, which is mentioned as general category?
Answer to this question has to be given in the negative to the extent that the candidature outrightly cannot be rejected merely because a candidate belongs to a particular category. As per the constitutional provisions and the intent and purpose for which reservation has been provided therein, it is not as if the benefit of the reservation goes to the discredit or disadvantage of a reserved category candidate. The petitioners, admittedly, belong to the scheduled castes category and even if, they are not granted the benefit of reservation because of wrong filling of the sub category, their consideration against the general open seats cannot be denied to them especially when they have been found to have obtained more marks than the last selected and appointed general ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 9 category candidate. If such an action of the respondents is permitted to be perpetuated, .
that would amount to violation of Article 14 of the Constitution of India as irrespective of the category to which the candidate belongs, he has right for consideration against the open/general category posts advertised."
11. Equally settled is the proposition that the candidate belonging to reserved categories are entitled to the seats from general category if they get higher marks entitling them to the seat in the general category and reserved categories cannot be restricted to only reserved seats and, therefore, the instructions imposing such restrictions would be violative of Article 14.
12. In view of the aforesaid discussion, we find merit in the instant petition and the same is allowed.
Since one post of Police Orchestra Female (General Category) has been made subject to the final outcome of this writ petition, therefore, we direct the respondents to initiate the selection process by accepting the candidature of the petitioner under general category for the post of Police Orchestra Female and in case she is found successful, she be appointed ::: Downloaded on - 03/09/2020 20:18:08 :::HCHP 10 as Constable expeditiously as possible and in no event later than 30th September, 2020.
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13. The writ petition is disposed of in the aforesaid terms, so also the pending application(s) if any.
14. For compliance, list on 01.10.2020.
r to (Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
31 August, 2020
st
Judge
(GR)
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