Central Administrative Tribunal - Delhi
Sundar Singh vs Staff Selection Commission on 7 January, 2025
1
C-4/Item-43 OA-767/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./767/2018
Order reserved on: 04.12.2024
Order pronounced on: 07.01.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Sundar Singh
Ex-Serviceman
Roll No.2201041553
Recruit CPO-2017
Aged about 37 years
S/o Shri Raje Ram
R/o 76, Gali No.10, Dinpur Extn.
Najafgarh, New Delhi-43 ...Applicant
(Through Shri Anil Singal, Advocate)
Versus
1. Staff Selection Commission
Through its Chairman,
Block No. 12, CGO Complex,
Lodhi Road, New Delhi
2. Commissioner of Police
PHQ, IP Estate, New Delhi ... Respondents
(Through Sh. S.N. Verma, Advocate for respondent no.1
Sh. Jalaj Agarwal, Advocate for respondent no.2)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. The present Original Application has been filed by applicant under section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"1. To quash and set aside Result dt. 29.1.2018 to the extent that there is no separate cut of marks for sub-2
C-4/Item-43 OA-767/2018 category of Commando in Ex-serviceman category candidates mentioned in para 2.3 of Advertisement for CPO- 2017 and no one from this category have been selected for appearing in medical examination declaring as illegal, ultra- virus, null and void, without jurisdiction and authority and automatically ineffective from its inception and non- existence in the eyes of law being in violation of Article 14 & 16 of the Constitution of India and contrary to the terms and conditions of Recruitment Advertisement for CPO-2017.
2. To direct the respondents to prepare the result of CPO-2017 strictly according to the terms and conditions of Recruitment Advertisement for CPO-2017 particularly para 2.3.
3. To direct the respondents to consider the applicant's appointment and appoint him against the vacancy of SI (Ex.) in Delhi Police reserved under para 2.3 of the Advertisement for CPO-2017.
4. To award costs in favour of the applicant and pass any order or orders, which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. The factual matrix of the present OA is as follows:
2.1 The present applicant is an Ex-serviceman who belongs to the sub-category of Commandos. The Respondent No.1 issued Recruitment advertisement CPO-
2017 for various posts including SI (Ex)-Male in Delhi Police (Post Code-A). The total number of posts advertised was 616, out of which 68 posts were reserved for ex-servicemen. The closing date for applications was 15.05.2017. As per Clause 2.3 of the said Advertisement, 50% of the quota for ex- servicemen was reserved for three category of Commandos. 2.2 The present applicant claims that he applied under the sub-category of Commandos in respect of the Ex-serviceman within the broad group of ex-servicemen. He also appeared 3 C-4/Item-43 OA-767/2018 for written Examination. The results of the examination was declared on 29.01.2018. There was no separate cut-off marks for the sub-category of Commandos, though there was an overall cut-off for the ex-servicemen (Annexure-A1) for Paper - II. The applicant did not find his name as one of the successful candidates. Being aggrieved, the applicant has filed the present OA seeking the aforementioned relief.
3. Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed rejoinder.
3.1 This Tribunal vide order dated 11.05.2018 directed the respondents to keep one post vacant under the category of ex-serviceman.
4. Submission by the learned counsel for the Applicant The learned counsel for the applicant relied on the amended OA filed on 13.09.2019 and the rejoinder filed on 3rd October, 2019. He had also submitted a brief written synopsis in pursuance to order dated 4.12.2024. 4.1 The main thrust of the averment by the learned counsel for the applicant is that the applicant applied under the overall quota for the ex-servicemen, under the sub- category of Commandos. The Respondent No.1, while processing the results, never established a separate cut-off mark for the sub-category of Commandos. As per Annexure- 4
C-4/Item-43 OA-767/2018 R1, the Respondents have furnished the cut-off marks for various categories of vacancies. The same is reproduced here.
"2. Based on the cut-off fixed by the Commission (Paper- 1+Paper-II), category-wise details of the candidates qualifying for appearing in Medical Examination are as under:-
(Male candidates) SC ST OBC ExS UR Total Cut off marks 217.50 230.00 271.75 204.00 293.50 -
in Paper-1 +Paper-II Candidates 646 343 1260 572^ 2887* 5708 Available
*Includes 72-SC, 23-ST & 1152-OBC candidates are qualifying at UR standard.
^Includes 7-SC, 6-ST & 160-OBC & 399-UR candidates"
4.2 Referring to the above sets of cut-off marks for various categories, the learned counsel for the applicant states that within ex-servicemen, Respondent No.1 should have fixed separate cut-off marks for the sub-category of Commandos as 50% of vacancies for ex-servicemen was earmarked for Commandos. This has led to selecting out deserving Commandos under the category of Ex-servicemen. 4.3 Learned counsel further elaborated that the final revised Results declared by the Respondent No.1 on 3.11.2018 (Annexure -A1a) shows that against the total vacancies of 68 for ex-servicemen, only 61 candidates selected. In the sub-category of Commandos, against 34 vacancies only 14 candidates selected whereas in the open ex-servicemen category, 47 candidates were selected against 5 C-4/Item-43 OA-767/2018 the available vacancies of 34. In other words, the Respondent No.1 has diverted 13 vacancies from the sub- category of Commando ex-servicemen to the open ex- servicemen category, which is not permissible under law. 4.4 The learned counsel for the applicant states that reservation meant for sub-category of Commandos in Ex- Servicemen Category is Vertical Reservation and hence, separate cut-off marks for this sub-category were required to be declared. However, the Respondent No.1 failed to do so. Accordingly, the selection process got vitiated and resulted in non-selection of deserving Commandos, depriving them of fair opportunity of employment.
4.5 To bolster his averment, the learned counsel for the applicant further refers to the practice adopted by the respondent No.1 in the CPO-2016 Examination. He relied on the counter reply filed by the respondents in OA no.3477/2017, copy of which is attached as Annexure-A6 to the amended OA. List IV on Page 36 of the amended OA, which contains the cut-off marks for various sub-categories of specialized ex-servicemen. The learned counsel states that once the Respondent No.1 had adopted separate cut-off marks for the specialized sub-categories including Commandos in 2016, they should have followed the same practice for CPO-2017. The Respondents were always declaring separate cut-off marks for Ex-servicemen Open 6 C-4/Item-43 OA-767/2018 category and Ex-servicemen (Commando) Category. The deviation from the established practice in CPO-2017 is arbitrary and without any rational basis. 4.6 The learned counsel for the applicant in support of his averment relies on the judgment of the Apex Court in Rajesh Kumar Daria Vs Rajasthan Public Service Commission and Ors, (2007) 8 SCC 785 where in the Apex court has distinguished between vertical (social) reservation under Article 16(4) and horizontal (special) reservation under Article 16(1) or Article 15(3) of Constitution of India. In paragraph 6 of the said judgment, the Apex Court had referred the decision of the Apex Court in Indra Sawhney Vs Union of India, 1992 Supp (3) SCC 217 where the distinction between the two categories had been delineated. In paragraph 6 of Rajesh Kumar Daria (supra) case, it was held:
"6. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney vs. Union of India [1992 Supp.(3) SCC 217], the principle of horizontal reservation was explained thus (SCC pp. 735-36, para 812) :
"[A] ll reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservation s' 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 the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped 7 C-4/Item-43 OA-767/2018 persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) 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."
4.6.1 Further the Apex Court in Rajesh Kumar Daria (supra) case, has explained the reservation for horizontal category under all circumstances shall remain intact, the balance in the vertical category is open for all, including those belonging to horizontal category. Paragraph 8 of the said judgment clarifies the position in the following manner:
"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'."
4.6.2 Paragraph 9 of the Rajesh Kumar Daria (supra) case has further clarified the distinction between vertical and horizontal reservation. Particularly, it clarifies that if candidates belonging to vertical class reserve category may compete for non-reserve category and if they are selected in the non-reserve category on merit, the quota for reserve category remains intact. But this principle does not apply for the horizontal category reservations for special category of candidates. If any candidate belonging to special category 8 C-4/Item-43 OA-767/2018 gets selected on merit for the vertical reservation, then that number of candidates would be deducted from the over-all quota for such special category to give over all representation to the special category under the vertical quota. Paragraph 9 reads as under:
"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 numbers 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 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 - Indira Sawhney (supra), R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745, Union of India vs. Virpal Singh Chauhan (1995) 6 SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996) 3 SCC 253. 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. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 9 C-4/Item-43 OA-767/2018 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]"
4.7 Learned counsel for the applicant further cites the judgment of the Apex Court in Saurav Yadav & Ors Vs State of Uttar Pradesh and others, (2021) 4 SCC 542 wherein the manner of operationalization vertical and horizontal reservations would be operationalized. In Paragraph 23.11 of the judgment, the Apex court reproduced the illustration given by the High Court of Gujrat in Tammanaben Ashokbhai Desai Vs Shital Amrutlal Nishar, 2020 SCC online Gujrat 2592. For clarification the same is reproduced here:
"23.11 The High Court then laid down: (Tammanaben Ashokbhai Desai case, 2020 SCC Online Gujrat 2592, paras 69-71) "69. For the future guidance of the State Government, we would like to explain the proper and correct method of implementing horizontal reservation for women in a more lucid manner.
"PROPER AND CORRECT METHOD OF IMPLEMETING HORIZONTAL RESERVATION FOR WOMEN.
No. of posts available for recruitment. ..... 100
Social Reservation quota (49%)
10
C-4/Item-43 OA-767/2018
Open Competition (OC) ..... 51
Scheduled Caste (SC) ..... 12
Scheduled Tribe (ST) .....17
Socially and Educationally
Backward Classes (SEBC) .....20
Horizontal Reservation for Women (33% in each of the above categories) OC .....17 SC ....04 ST ....06 SEBC ....07 Step 1: Draw up a list of at least 100 candidates (usually a list of more than 100 candidates is prepared so that there is no shortfall of appointees when some candidates don't join after offer) qualified to be selected in the order of merit. This list will contain the candidates belonging to all the aforesaid categories.
Step 2: From the aforesaid Step 1 List, draw up a list of the first 51 candidates to fill up the OC quota (51) on the basis of merit. This list of 51 candidates may include the candidates belonging to SC, ST and SEBC.
Step 3: Do a check for horizontal reservation in OC quota. In the Step 2 List of OC category, if there are 17 women (category does not matter), women's quota of 33% is fulfilled. Nothing more is to be done. If there is a shortfall of women (say, only 10 women are available in the Step 2 List of OC category), 7 more women have to be added. The way to do this is to, first, delete the last 7 male candidates of the Step 2 List. Thereafter, go down the Step 1 List after item no. 51, and pick the first 7 women (category does not matter). As soon as 7 such women from Step 1 List are found, they are to be brought up and added to the Step 2 List to make up for the shortfall of 7 women. Now, the 33% quota for OC women is fulfilled. List of OC category is to be locked. Step 2 List list becomes final.
Step 4: Move over to SCs. From the Step 1 List, after item no. 51, draw up a list of 12 SC candidates (male or female). These 12 would also include all male SC candidates who got deleted from the Step 2 List to make up for the shortfall of women.
Step 5: Do a check for horizontal reservation in the Step 4 List of SCs. If here are 4 SC women, the quota of 33% is complete. Nothing more is to be done. If there is a shortfall of SC women (say, only 2 women are available), 2 more women have to be added. The way to do this is to, first, delete the last 2 male SC candidates of the Step 4 List and then to go down the Step 1 List after item no. 51, and pick the first 2 SC women. As soon as 2 such SC women 11 C-4/Item-43 OA-767/2018 in Step 1 List are found, they are to be brought up and added to the Step 4 List of SCs to make up for the shortfall of SC women. Now, the 33% quota for SC women is fulfilled. List of SCs is to be locked. Step 4 List becomes final. If 2 SC women cannot be found till the last number in the Step 1 List, these 2 vacancies are to be filled up by SC men. If in case, SC men are also wanting, the social reservation quota of SC is to be carried forward to the next recruitment unless there is a rule which permits conversion of SC quota to OC.
Step 6: Repeat steps 4 and 5 for preparing list of STs.
Step 7: Repeat steps 4 and 5 for preparing list of SEBCs."
70. The State Government as well as the GPSC shall, for all times to come, bear in mind that the effect of horizontal reservation, being provided under each category, is that it is only women, who belong to the Other Backward Classes, who can compete for the posts reserved for Other Backward Classes (Women) and not women who belong to the Scheduled Castes, the Scheduled Tribes and the unreserved category. Likewise, it is only women belonging to the Scheduled Castes and the Scheduled Tribes who can compete for the posts horizontally reserved in favour of Scheduled Castes (Women) and Scheduled Tribes (Women). A woman, not belonging to the reserved category (OBC, SC and ST), is not entitled to compete for posts reserved in favour of Other Backward Classes (Women), Scheduled Castes (Women) and Scheduled Tribes (Women).
71. The converse, however, is not true. All women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the General Category. There is no reservation for posts in the General Category, and horizontal reservation in favour of women in the General Category is available to be filled up from amongst all women irrespective of their caste status. The posts, reserved in favour of General Category (Women), are available for all women from the State of Gujarat, and that would include women belonging to the reserved categories such as OBCs, SCs and STs, and women who do not. Holding otherwise, would result in surreptitious introduction of reservation in favour of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation has been frowned upon by the Supreme Court in The State of Madras Vs. Sm. Champakam Dorairajan and another, AIR 1951 SC 226."
4.7.1 Again the Apex Court in Saurav Yadav (supra) case, has further elucidated the concept of vertical and horizontal reservation through a hypothetical illustration in Paragraphs 30 to 33.5 which is reproduced here.
12
C-4/Item-43 OA-767/2018 "30. Both the views can be compared and the issues involved in this matter can be considered in the light of a hypothetical illustration with following assumptions: -
30.1 The total seats available are 100; comprising of 50 seats for 'Open/General Category'. The reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes is at 20%, 10% and 20% respectively and all candidates from these reserved categories are otherwise eligible to be considered against Open General Category.
30.2 The percentage of seats available for 'Women' by way of compartmentalized horizontal reservation is 30%.
30.3 Out of all qualified candidates, when first 50 meritorious candidates are picked up to fill up the seats for 'Open/General Category':-
(a) There are only 11 women in first 50 candidates in 'Open/General Category'; and
(b) the last five persons in the 'Open/General Category' viz., the candidates at Serial Nos.46, 47, 48, 49 and 50 are Sl. No. 46 - Open Category - Male Sl. No 47 - Open Category - Male Sl. No. 48 - Scheduled Caste - Male Sl. No. 49 - Scheduled Caste - Male Sl. No. 50 - Scheduled Caste - Female
(c) first four female candidates in the waiting list, who do not belong to any of the reserved categories, are having overall merit position at Serial Nos. 52, 64, 87 and 88.
(d) Going by the steps indicated in paragraph 18 of the decision in Anil Kumar Gupta and Others13, at the stage of filling up seats for Scheduled Castes Category, there are 7 females among 20 candidates with last 2 candidates being females whose overall ranking in the merit list is at Serial Nos. 80 and 86.
(e) Similarly, the seats for Scheduled Tribes and Other Backward Categories are filled up.
(f) Out of 20 candidates selected in Other Backward Category there are 09 females.
The basic features of this illustration can be put in the following tabular format.
Total Seats : 100
Categories Open/General Scheduled Scheduled Other
Castes Tribes Backward
Classes
Seats 50 20 10 20
available
Minimum 15 6 3 6
seats for
women
Seats 11 7 3 9
occupied by
women before
13
C-4/Item-43 OA-767/2018
application of
horizontal
reservation
Shortfall, if 4 Nil Nil Nil
any
32. Having allocated first 50 seats in Open General Category and filled up other vertical column of reservation, the next step is to effect horizontal reservation for women. If the reservation for women was to be "overall horizontal reservation", there are 30 women (11+07+03+09) and nothing further is required to be done.
33. However, if the horizontal reservation for women is to be taken as "compartmentalized", as we are concerned in the present matter and the instant illustration, the appropriate steps must comprise of following:-
33.1 Since the shortfall for women is of four seats in Open / General Category, last four male candidates namely those at Serial Nos. 46, 47, 48 and 49 initially allocated to Open/General Category, will have to be displaced. The candidate at Serial No. 50, being a woman, cannot be displaced.
33.2 The male candidates at Serial Nos.46 and 47 being from Open/General Category, after such displacement will be completely out of reckoning as they cannot go to any reserved category.
33.3 The candidates at Serial Nos.48 and 49 being more meritorious than the candidates originally placed in the vertical column of reservation for Scheduled Castes, must go back to their own vertical column. This will cause resultant displacement of two candidates in that vertical column of reservation. The 20th candidate, whose overall merit position is at Serial No.86, though a female, but being in excess of quota for Scheduled Castes females and a male candidate immediately above the 19th candidate will thus get displaced.
33.4 If we go by the second view, the female candidates at Serial Nos.52, 64, 87 and 88 must be accommodated against Open General Category seats whereas the candidate at Serial No.86, though more meritorious then those at Serial Nos.87 and 88, must be left without any seat.
33.5 On the other hand, if we go by the first view, the claim of reserved category candidates if they are more meritorious, has to be considered, in which case the candidate at Serial No.86 will be required to be accommodated. Resultantly, the candidate at Serial No.88 must give way."
4.8 The learned counsel for the applicant also relies on the judgment of the Apex Court in Rekha Sharma Vs The Rajasthan High Court, Jodhpur and Anr in Civil Appeal No. 5051 of 2023 where in it was held:14
C-4/Item-43 OA-767/2018 "9. It is quite well settled that the Horizontal Reservation is of two types: - (i) Compartmentalised Horizontal Reservation, and (ii) Overall Horizontal Reservation. The Compartmentalised Horizontal Reservation is such wherein the proportionate vacancies are reserved in each vertical reserved category. However, in case of Overall Horizontal Reservation, the Reservation is provided on the total post advertised i.e. such reservation is not specific to each vertical category. As per the advertisement dated 22.07.2021, the vacancies in case of women candidates were classified/identified for each category i.e. General, OBC, SC, ST, MBC whereas for the Persons with benchmark disabilities, no such vacancies were mentioned in the said categories. Further, in the three-tier process of the Examination Scheme, the number of candidates to be admitted to the Main Examination were fifteen times the total number of vacancies (category wise) and the candidates had to qualify themselves by securing the minimum percentage of marks fixed for each of the categories in the Preliminary Examination. Therefore, the Persons with benchmark disabilities falling under the Overall Horizontal Reservation had to qualify for the Mains Examination by securing minimum cut off marks fixed for the concerned category in which he/she had applied."
4.9 Concluding his averments, the learned counsel for the applicant emphatically asserts that the reservation for Ex-
servicemen in the instant case has been further subcategorized into open and specialized Ex- servicemen. The specialized Ex-servicemen are further sub-categorized into three sub-categories. In effect, it can be construed that the reservation for Ex-servicemen has become a vertical reservation and the sub-categories are like horizontal reservation, within the broad horizontal reservation for Ex- servicemen. Accordingly, applying the principles enunciated in the aforementioned judgments of the Apex Court in Rajesh Kumar Daria (supra), Saurav Yadav (supra) and Rekha Sharma (supra) cases, there should have been separate cut-off for the sub-categories for the Commandos in 15 C-4/Item-43 OA-767/2018 the instant case. As the Respondents have failed to do so, the applicants were deprived of a fair chance of getting employment offer. Accordingly, he pleads that the present OA should be allowed.
5. Per contra, the learned counsel for the Respondents relying on the counter affidavit filed by the respondents on 2.07.2018 and 10.07.2018 submits that the reservation for Ex-servicemen is a horizontal reservation. The reservation though mentions that 50% is reserved for sub-categories, the condition of putting option to choose from any sub- category as well as in the event of not finding suitable candidates from these three sub-categories, the competent recruiting authority can choose from the Open category to fill up the vacancies. To substantiate his averment, he refers to Clause 2.3 of the Advertisement which reads as follows:
"2.3 Out of 10% quota meant for Ex. Servicemen, 50% of such quota will be reserved for the following categories:-
(i) Having served in the Special Force/NSG (Special Action Group) OR
(ii) Having received a QI "Qualified Instructors"
grading in the commando course.
OR
(iii) Officers from the Navy/Air Force who have worked in the specialized commando type units.
NOTE: In case sufficient number of Ex. Servicemen candidates under categories at (i), (ii) and (iii) are not available, the unfilled vacancies will be filled from amongst other available Ex. Servicemen candidates." 16
C-4/Item-43 OA-767/2018 5.1 The learned counsel for the respondents particularly
draws attention to the Note under the clause, which makes the reservation for the Ex-servicemen as a whole as an overall specialized reservation. Hence, the principles of compartmentalised reservation within the broad category of Ex-servicemen is not mandatory. It is left to the discretion of the competent authority to make it compartmentalized or an overall horizontal reservation for ex-servicemen. Accordingly, he defends the action of the respondents in adopting varying practices of fixing or not-fixing separate cut-off marks for the sub-category of Ex-servicemen in various examinations held periodically. The applicants have no indefeasible right to demand for fixation of separate cut-off marks for the sub- category of Ex-servicemen. Once, the applicants have accepted the conditions contained in the advertisement and failed to secure the cut-off marks in the overall category of ex-servicemen, they are prevented to challenge the discretion given to the recruiting authority to devise its own methodology of assigning overall category of ex-servicemen, without fixing separate cut-off marks for the sub-category of Commandos.
6. The learned counsel for Respondent No.2 relying on the counter affidavit filed draws attention to Annexure -R1 (colly) attached to the counter affidavit filed by Respondent 17 C-4/Item-43 OA-767/2018 No.2 on 2.07.2018 and states that the Applicant has not challenged the Standing Order No.321/2013 based on which the Advertisement for CPO-2017, particularly Clause 2.3 has been framed. Hence, the Respondent No.1 has followed this Standing Order and they had the discretion to devise cut- offs for the ex-servicemen as a whole for overall horizontal reservation or separate cut-off for the compartmentalised group of Commandos. In view of this, he avers, there is no infirmity, in the procedure followed by Respondent No.1
7. Analysis From the pleadings of the parties and the averments made during arguments, the following issues are culled out for adjudication of the present OA.
a) Whether the reservation for Ex-servicemen and its sub-categories as per Standing order 321/ 2013 be considered as vertical reservation?
b) Whether the Respondent No. 1 was bound to fix separate cut-off marks for the specialized group of Commandos to give effect to the reservation to three sub-categories under the Ex-Servicemen quota. Both the issues are intertwined. Hence, we analyse them together in the following paragraphs.
7.1 Perusal of Clause 2.3 read with Standing Order 321/2013 of Delhi Police shows that the overall reservation 18 C-4/Item-43 OA-767/2018 of 56 posts for Ex-servicemen is a horizontal (social) reservation as per the concept enunciated by the Apex Court in Indra Sawhney (supra) case and subsequently elaborated in Rajesh Kumar Daria (supra), Saurav Yadav (supra) and Rekha Sharma (supra) judgments. The learned counsel for the applicant has made laborious attempt to convince us that the reservation for Ex-servicemen is vertical reservation due to further sub-category reservation for specialized Ex- servicemen of Commandos as per Clause 2.3 of advertisement read with Standing Order 321/2013 by Delhi Police. We are not convinced that any such social reservation because it contains further sub-categories will qualify as vertical reservation.
7.2 While the assertion of the learned counsel for the applicant that the social reservation for the ex-servicemen as outright vertical reservation cannot be accepted, but the spirit of Standing Order 321/2013 by keeping 50% quota for the ex-servicemen for the specialized category Commandos, will be defeated unless there is a system for ensuring that at least 50% of candidates selected with pre-determined standards should belong to the sub-category of Commandos. There may be hypothetical situation when by adopting uniform cut-off marks for all ex-servicemen, there would be none from the sub-category of Commandos, defeating the entire purpose of keeping 50% quota for the ex-servicemen 19 C-4/Item-43 OA-767/2018 reserved for the sub-category of Commandos. Hence, the sine qua non of keeping a separate sub-quota within quota is to fix a separate cut-off mark while ensuring reasonable standards of the probable candidates. This cut-off mark cannot be the same as that for the general ex-servicemen. 7.3 After fixing a separate quota for the sub-category of Commandos, the recruiting agency should have found how many had have automatically qualified under the open ex- servicemen category on their merit. That number should have been deducted from the overall number reserved for sub-category of ex-servicemen and further selection should have been made till the sub-quota exhausts. If the recruitment agency could not find adequate number of suitable candidates from the subcategory adopting the separate cut-off mark, then only it could operate the principle in the Note below at the bottom of clause 3.2. Without fixing separate cut-off marks for the commando sub-category, the respondent No.2 could not have operated the principle under this note. Otherwise, it would, as we have analyzed with the hypothetical situation, would completely defeat the spirit and purpose of having sub-quota under quota.
7.4 In the instant case, the total number of vacancies advertised for Ex-servicemen was 68; the 50% sub-quota for 20 C-4/Item-43 OA-767/2018 the Commando Specialized category of Commandos etc. would come to 34. The final result declared by Respondent No.1 (Annexure - 1A to amended OA) shows that only 14 candidates belonging to the specialized category of specialized Ex-servicemen have been selected. Without fixing separate cut-off mark for this specialized group, the Respondent No. 1 has operated the Principle of the Note under Clause 2.3 and selected 47 candidates for the open ex-servicemen category. This action by the Respondent No.1 is not tenable as per the Advertisement and the Standing Order 321/2013.
8. Conclusion The respondents have failed to adopt the principle of reservation for the specialized group of ex-servicemen by not fixing separate cut-off mark for the sub-group. Accordingly, the applicant and similarly placed candidates deserve to be considered as a separate sub-group by adopting a separate cut-off mark for this specialized group. For convenience, we call the entire three categories under the specialized group as per Clause 2.3 of the advertisement as Commando Group. To clarify, we do not hold that there would be separate cut-off mark only for the third category under clause 2.3 of the advertisement; but for all three sub- categories of (a), (b) and (c) as a whole under sub-clause 2.3. 21
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9. In view of the above, the OA is allowed in the following terms:
i) The respondents shall fix separate cut-off mark for the specialized Ex-servicemen category for the CPO-
2017 examination.
ii) They shall identify the candidates belonging to the specialized Ex-servicemen who have already qualified as per the uniform cut-off mark adopted for all ex-servicemen. The number of such selected candidates should be deducted from the 50% quota for the sub-category of specialized ex-servicemen. The remaining vacancies could have been filled from the revised merit list of the specialized Ex- servicemen adopting the separate cut-off mark. As already additional 13 candidates belonging to open ex-servicemen have been selected and they are in service for more than 6 years, it would be unfair to dislodge them from service. Under such circumstances, only 13 unfilled vacancies can be filled by adopting the separate cut-off mark for the specialized ex-servicemen.
iii) The Respondent No.1 is directed to complete this exercise within 8 weeks from receipt of certified copy of this order and send the select list of at least 13 22 C-4/Item-43 OA-767/2018 candidates from the specialized ex-servicemen to Respondent No.2 within this period.
iv) Respondent no.2 shall exercise due diligence as per set procedure to verify the records and antecedents of such candidates and offer appointment, if they are otherwise found fit for appointment, within 4 weeks from receipt of list and dossiers as per (ii) and
(iii) above.
v) The fresh appointees, if any, shall get all consequential benefits treating them at par with the appointees of the CPO-2017 examination, albeit on notional basis.
No order as to costs. All pending MAs are disposed of accordingly.
(Dr. Chhabilendra Roul) (Manish Garg)
Member (A) Member (J)
/dkm/