Allahabad High Court
Dr. Rajesh Kumar Tiwari vs State Of U.P. And Ors. on 28 July, 2006
Equivalent citations: 2007(1)AWC282
Author: Vikram Nath
Bench: V.M. Sahai, Vikram Nath
JUDGMENT Vikram Nath, J.
1. Both these writ petitions have been filed with a prayer to command the respondents to permit the petitioners to appear in the interview for the post of Lecturer in Hindi under the category of dependents of freedom fighters against the Advertisement No. 32 issued by the U.P. Higher Education Service Commission. Both these petitions relate to Advertisement No. 32 only. Pleadings in both these petitions are also similar. Both these petitions, being similar in nature, and the relief claimed also being similar, they are being heard together. The pleadings of Writ Petition No. 22497 of 2004 are being referred to in this Judgment.
2. Upon a request being sent by the Director, Higher Education, U. P., the Uttar Pradesh Higher Education Service Commission issued Advertisement Nos. 30, 31 and 32 jointly inviting applications for the post of Lecturer in different degree colleges and post graduate colleges for appointment of Lecturers in different institutions all over the State. A copy of the advertisement has been filed as Annexure-1. According to the advertisement, total of 82 vacancies for the post of Lecturer in Hindi were advertised and the break up given was 41 posts for General category, 22 posts reserved for Other Backward Caste category, 17 posts reserved for the Scheduled Caste category and 2 posts reserved for the Scheduled Tribes category. The advertisement further mentioned that the reservation applicable for physically handicapped, dependents of freedom fighters and ex-service men was also applicable in the selection. According to both the petitioners, they had applied under the category of dependents of freedom fighters, but the respondents had illegally not applied the reservation in accordance with law for the dependents of freedom fighters and therefore, they were being illegally deprived from being considered under the said category.
3. Counter-affidavit has been filed by the respondents in which the fact that the petitioners have applied and are eligible for consideration under the dependents of freedom fighters category, is not disputed. The controversy which has arisen upon the filing of the counter-affidavit is that the respondents have not correctly applied the provisions of U.P. Act No. 4 of 1993. What has been stated in the counter-affidavit filed by Shrl Nakachhed Ram posted as Assistant Director in the Directorate of Higher Education, is that although 2% reservation quota is admissible for the dependents of freedom fighters, but out of 41 vacancies for General Category, one post was reserved for the dependents of freedom fighteRs. It has further been stated in the counter-affidavit that horizontal reservation for physically handicapped, dependents of freedom fighter and Ex-servicemen quota are allowed within the prescribed quota of General, O.B.C., S.C. and S.T. category. Paragraph 5 of the counter-affidavit containing these averments is quoted hereunder:
That the contents of paragraph No. 6 of the writ petition are not admitted for the reason already given in para 1 (d) of this counter-affidavit. However, it is pertinent to submit that vertical reservation cannot exceed 50% of total vacancies. Hence, horizontal reservations for Physically Handicapped, Dependent of the Freedom Fighter and Ex-Serviceman quota are allowed within the prescribed quota of General, O.B.C., S.C. and S.T, category. It is further submitted that only 2% reservation quota is admissible for the dependents of freedom fighter (Annexure-1 to this counter-affidavit). in the present case, out of 41 vacancies for General category one post was reserved for the dependent of Freedom FighteRs. Hence, the averments to the contrary made in para under reply are in correct and therefore denied.
4. These averments, it is alleged, are based upon the interpretation of a Government order dated 22.10.2001 filed as Annexure-C.A. 1 to the counter-affidavit of Dr. Nakachhed Ram. Clause 6 of the said Government order is relevant for the present controversy. The same is quoted hereunder:
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fiNM+k oxZ ds dksVk esa] ;Fkkvko';d lek;kstu djds] j[kk tk;sxk ;fn og [kqyg izfr;ksfxrk okyh dVsxjh vFkkZr lkekU; oxZ dks gks rks mld ml oxZ esa] ;Fkkvko';d lek;kstu djds] j[kk tk;sxk ;fn dksbZ fjfDr mi;qDr vH;kFkhZ dh vuqiyC/krk ds dkj.k fcuk Hkjh jg tkrh gS rks mls vkxkeh HkrhZ ds fy;s vxzuhr fd;k tk;sxkA
5. It has further been alleged in the counter-affidavit filed on behalf of the State as well as the Commission that the index of the petitioners was less than the minimum index in the general category up to which level the candidates in the general category were called for interview, as such the petitioners were not called for interview. However, pursuant to interim order passed by this Court, it is stated in the supplementary counter-affidavit of the Commission that the petitioners have been interviewed, however, their results have not been declared as per the interim order of this Court.
6. From the stand taken by the respondents, basically three questions arise in these petitions. Firstly while applying the U.P. Act No. 4 of 1993 whether the vacancies are to be calculated separately for each caste category or on the entire number of posts advertised? The second question is whether the candidates, seeking reservation under the U.P. Act No. 4 of 1993, have to compete with the candidates of their respective caste category? Lastly to what relief are the petitioners entitled?
7. We have heard Shri Ram Gopal Tripathi and Shri V.B. Tiwari for the petitioners, learned standing counsel for the State respondents and Shri H.N. Singh for the Commission in both the writ petitions.
8. The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993 (in short referred to as U.P. Act No. 4 of 1993) was promulgated and came in to force with effect from 30.12.1993. According to Section 3 of the U.P. Act No. 4 of 1993, it was provided that there shall be reserved 5% of vacancies at the stage of direct recruitment in favour of the physically handicapped, dependents of freedom fighters and ex-servicemen. Subsection (2) of Section 3 of U.P. Act No. 4 of 1993 provided that the respective quota of the categories shall be such as the State Government may from time to time determine by a notified order. Further, sub-section (3) of Section 3 of U.P. Act No. 4 of 1993 provided the manner in which the reservation was to be applied. For sake of convenience, Section 3 of U.P. Act No. 4 of 1993 is quoted hereunder:
3. Reservation of vacancies in favour of physically handicapped etc.--(1) in public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacancies at the stage of direct recruitment in favour of:
(i) physically handicapped
(ii) dependents of freedom fighters, and
(iii) ex-servicemen (2) The respective quota of the categories specified in subsection (1) shall be such as the State Government may from time to time determine by a notified order.
(3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments ; if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments.
(4) For the purpose of subsection (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be:
Provided that at no point of time the reservation shall, in the entire strength of cadre, or service, as the case may be, exceed the quota determined for respective categories.
(5) The vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment.
9. From a perusal of sub-section (3) of Section 3 of the U.P. Act No. 4 of 1993, it is clear that persons selected under the aforementioned three categories would be placed in their respective categories of General, O.B.C., S.C. and S.T. depending upon their status in each of the categories and accordingly, the vacancy in each of the four categories would be reduced by the number of the selected candidates under the U.P. Act No. 4 of 1993. Even the Government order dated 22.10.2001 also in clear and specific terms lays down the same view. To be more explicit, supposing out of the total number of vacancies advertised, there were two posts to be filled up from the dependents of freedom fighters category and if both the candidates selected under the said category belong to General Category, then they would occupy two positions in the total posts earmarked for the General Category and the remaining posts of the General Category would be filled up accordingly. However, in a situation where the two candidates selected under the dependents of freedom fighters category belong to different castes, that is, one General and one OBC, then one post from each of the two categories would be reduced by one and the remaining posts in each of the two categories would be filled up accordingly.
10. The scheme as envisaged under Section 3 of the U.P. Act No. 4 of 1993 clearly provides for the extent of reservation, the categories for which reservation is being made and the manner in which it is to be applied. Sub-section (1) provides that there shall be a maximum of five per cent reservation on vacancies for each of the three categories mentioned in that section. Further according to subsection (2), the respective quota for each category may be such as the State Government may determine. Sub-section (3) deals with the method in which the selected candidate in each of the three categories are to be placed in the respective caste categories. From a close and careful reading of the entire Section 3 of U.P. Act No. 4 of 1993, it is clear that vacancies for each of the three categories covered by the said Act are to be calculated on the total number of vacancies advertised. The language used in sub-section (1) is very clear in this regard which reads as follows:
(1) in public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacancies at the stage of direct recruitment.
11. Further sub-section (3) provides that after selection, the candidates are to be placed in their respective caste category thereby consuming post of that caste category leaving the balance to be filled up from amongst the candidates selected in that caste category. in case the stand of the respondents is to be accepted, the scheme of Section 3 of U.P. Act No. 4 of 1993 would fail. The Legislature, if, it in tended, what the respondents claim that for reservation to the three categories under U.P. Act No. 4 of 1993, the vacancies are to be calculated on the number of posts in each of the caste category, then the Legislature would have framed Section 3 differently. That being the position, it is difficult to uphold the contention of the respondents.
12. The Apex Court in the case of Indira Sawhney v. Union of India , has explained the concept of 'vertical reservations' and 'horizontal reservations'. It would be but appropriate to quote para 95 of the Apex Court Judgment in Indira Sawhney's case (supra):
We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this Juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, we referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4)) may be called vertical reservations whereas reservations in favour of physically handicapped (under Clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across 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 Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. Category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) 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. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
It is however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be--indeed cannot be -- applicable to exemptions, concessions or relaxations, if any provided to 'Backward Class of Citizens' under Article 16(4).
13. in the present case, it is admitted fact that 82 vacancies were advertised and the quota fixed for the dependents of freedom fighters is 2%. Thus, 2% of 82 being more than 1.5 would result in to 2 posts in that quota. The law with regard to rounding off is very clear and well settled. Where the value is one-half or more, it has to be rounded off to the next whole number and where it is less than one-half, it has to be ignored. in the present case, 2% of 81 comes to 1.62. It being more than one-half, the value to be taken is 2. This view is supported by the decision of the Hon'ble Apex Court in the case of State of U.P. and Anr. v. Pawan Kumar Tiwari and Ors. .
14. The respondents have, therefore, to prepare a separate panel of the selected candidates in the dependents of freedom fighters quota for 2 posts and thereafter place them in the respective caste category. in the present case, as is clear from the averments contained in paragraph 6 of the counter-affidavit, the quota for the dependents of freedom fighters has been calculated in the different caste categories. The respondents have calculated only one seat in the general category and no quota in the other 3 caste categories because 2% of 41 comes to 0.82, which amounts to 1 post and in all the other 3 caste categories, the vacancies being less than 25, 2% of each of the vacancies being less than 0.5, no vacancy of dependents of freedom fighters quota has been carved out in the other 3 caste categories.
15. Such application of the quota for dependents of freedom fighters is contrary to the provisions of the U.P. Act No. 4 of 1993 and also the Government order dated 22.10.2001 and therefore, cannot be sustained.
16. It is, thus, held that vacancies for applying reservation pursuant to the U.P. Act No. 4 of 1993 have to be calculated from the total number of posts advertised and not from the number of posts reserved for O.B.C., S.C./S.T. and the unreserved posts for open competition. The correct number of vacancies would come to 2 and not 1 as alleged in the counter-affidavit.
17. Now coming to the question of obtaining minimum index in the respective caste category we find that respondents have themselves corrected their mistake. It has been stated in paragraph 6 of the supplementary counter-affidavit filed on behalf of the Commission that the Commission has reviewed its decision, and in view of the resolution passed in the meeting dated 12.5.2005, it has resolved to scrutinize the forms of the dependents of freedom fighter category and to call all the eligible candidates for interview falling in the said category. Again, in paragraph 10 of the same affidavit, it has been stated that apart from the two petitioners, two more candidates who fall in the same category are also required to be called for interview on the basis of their index assessment scrutiny marks. For the said purpose, necessary directions have been issued to the office of the Commission for calling the other two candidates for interview who have not been interviewed so far. It is, thus, clear that the stand taken in the counter-affidavit with regard to minimum index, having not been secured by the applicants of the freedom fighter category in comparison with the general category, has been done away with, and the earlier resolution dated 6.8.2003 stands amended and replaced by the resolution passed in the meeting of the Commission held on 12.5.2005. Thus, the said objection raised in the counter-affidavit no longer exists in view of the decision taken by the Commission in its meeting dated 12.5.2005. Therefore, the Commission is required to declare the result of the petitioners as well as the other candidates in the category of the dependents of freedom fighters so that the selected candidates may be given appointment and adjusted against their respective caste categories.
18. According to the reading of Section 3 of the U.P. Act No. 4 of 1993 and also clause 6 of the Government order dated 22.10.2001, it is clear that upon selection in the category of dependents of freedom fighters, the selected candidates are to be adjusted in their respective category of reservation based upon their caste, and consequently, they are to occupy a position in the vacancies advertised in their respective categories. From the aforesaid, it follows that there has to be a separate panel of the selected candidates in the category of dependents of freedom fighters and after making such selection, irrespective of the fact whether they have qualified in the category of their castes or not, they are to be placed in their respective categories of their castes and thereafter, the remaining positions of that caste category are to be filled up.
19. With regard to the question of relief being granted to the petitioners, learned Counsel for the respondents have urged that the petitioners have not Laid any foundation with regard to application of quota nor have they sought any relief in this regard and, therefore, this Court may not go in to this question at all. We are afraid that such an argument can be sustained. We are hearing these petitions under Article 226 of the Constitution. Once it has come to the knowledge of the Court that the respondents have failed to follow the statutory provisions or have acted in violation of statutory provisions, this Court in its extraordinary jurisdiction can always issue a writ commanding the respondents to apply the provisions correctly. Article 226 of the Constitution confers ample power on High Court to correct an error which is manifest and apparent on the face of the record and also where there is apparent miscarriage of justice. in the present case, both the grounds are established. The contention of the respondents is, therefore, rejected.
20. The action of the respondents in calculating the quota of the dependants of freedom fighters being contrary to the Act, is liable to be set aside and the respondents are directed to correctly apply the quota for the dependants of freedom fighters afresh in the light of observations made above and thereafter, prepare a panel of the selected candidates in the quota of the dependants of freedom fighters and, accordingly, place them in their respective caste categories. Depending upon their placement in the caste categories, the remaining vacancies in the caste categories may be filled up.
21. Writ Petition is, accordingly, allowed with costs and it is directed that the respondents shall declare 2 posts out of 82 posts of Lecturer in Hindi to be reserved for dependants of freedom fighters against Advertisement No. 32 and after following the revised procedure as Laid down in the decision of the Commission taken in its meeting dated 12.5.2005 and the observations made in this judgment declare the result and further the selected candidates may be given appointment against the said 2 posts in accordance with their respective merit. This exercise may be completed within a period of three months from the date of production of certified copy of this order before the respondents.