Rajasthan High Court - Jaipur
Narendra Kumar Vijay S/O Shri Banwari ... vs State Of Rajasthan Through Its ... on 13 July, 2018
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 14507/2018
1. Narendra Kumar Vijay S/o Shri Banwari Lal Vijay , Aged
About 47 Years, R/o- 2-A-33, Mahaveer Nagar Ext. , Kota
(Raj.)
2. Prem Prakesh Sharma S/o Shri Kailash Narayan Sharma ,
Aged About 46 Years, R/o Village -Goth , Post- Surer ,
Tehsil - Rajgarh , District - Alwar (Rajasthan)
3. Sanjay Kumar Jain S/o Shri Santosh Kumar Jain , Aged
About 42 Years, R/o- 429, Rajendra Nagar, Bharatpur
(Rajasthan).
4. Ramdayal Sharma S/o Shri Ramkrishan Sharma , Aged
About 47 Years, R/o Near Fci Godown, Baswa Road ,
Bandikui , District Dausa (Rajasthan).
5. Mahesh Kumar Sharma S/o Shri Bajrang Lal Sharma ,
Aged About 48 Years, R/o - 42, Tulsi Nagar, Near Airport
Circle, Tonk Road, Jaipur (Rajasthan).
6. Arvind Upadhyay S/o Shri Krishan Gopal Sharma , R/o -
Nadi Mohalla , Near Patwar Ghar, Bijai Nagar , District-
Ajmer (Rajasthan).
7. Krishan Bihari S/o Shri Mohan Lal , Aged About 38 Years,
R/o - Village And Post - Posod , Tehsil- Neemrana,
District- Alwar (Rajasthan).
8. Tejpal Pareek S/o Shri Bala Ram Pareek , Aged About 40
Years, R/o -Village- Akthari, Post - Parli, Tehsil- Malpura,
District- Tonk (Rajasthan).
9. Rajender Prasad Tiwari S/o Shri Ravi Ballabh Tiwari ,
Aged About 49 Years, R/o - Village And Post - Parli ,
Tehsil- Malpura, District- Tonk (Rajasthan).
10. Ramprasad Tiwari S/o Shri Ravi Ballabh Tiwari , Aged
About 45 Years, R/o - Village And Post - Parli , Tehsil-
Malpura, District- Tonk (Rajasthan).
11. Kishan Lal Sharma S/o Shri Vishveshwar Prasad Sharma ,
Aged About 48 Years, R/o - Village And Post - Parli ,
Tehsil- Malpura, District- Tonk (Rajasthan).
12. Rakesh Kumar Vyas S/o Shri Ramkishor Vyas , Aged
About 52 Years, R/o - Village And Post - Pachewar ,
Tehsil- Malpura, District- Tonk (Rajasthan).
(2 of 9) [CW-14507/2018]
----Petitioners
Versus
1. State Of Rajasthan Through Its Principal Secretary,
Education Department , Govt. Secretariat, Jaipur
(Rajasthan)
2. Rajasthan Public Service Commission , Ajmer (Rajasthan)
Through Its Secretary.
3. Director , Elementary Education , Bikaner ( Rajasthan)
----Respondents
For Petitioner(s) : Mrs. Sudesh Kasana For Respondent(s) :
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 13/07/2018 Learned counsel for the petitioners, at the very outset, submits that the controversy raised in the instant writ application is no more res-integra in view of the adjudication made by the Apex Court of the land in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission, (2007) 8 SCC 785, so also in view of adjudication made by this Court in the case of Manoj Kumar Tungariya Vs. State of Rajasthan: 2016 WLC (Rajasthan) (UC) 340, observing thus:
"15. The submissions made on behalf of the respondent-Commission in an attempt to distinguish the controversy raised in the instant case at hand for the issue involved herein is with reference to appointment to public service whereas the principle enunciated by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra), was with reference to policy of reservation in the matter of admission to Medical Course; is absolutely misconceived and misleading. In the case of Anil Kumar Gupta (supra), the Hon'ble Supreme Court in no uncertain terms held that the proper and correct procedure while implementing reservation is to (3 of 9) [CW-14507/2018] fill up the open category quota (50%) on the basis of merit. The second step thereafter is to fill up each of the social reservation quotas i.e. Scheduled Caste, Scheduled Tribe and Other Backward Classes, and the third step would be to determine the number of candidates belonging to these special/horizontal reservation. In case, the quota prescribed for horizontal reservation is already satisfied, no further reservation is to be accorded to the category of candidates belonging to horizontal reservation.
16. The principle has been reiterated in Rajesh Kumar Daria (supra), explaining the difference between vertical/social reservation and horizontal/special reservation. The social reservations in favour of SC/ST/OBC under Article 16(4) of the Constitution are 'vertical reservations' whereas special reservations in favour of physically handicapped, women etc. under Article 16(1) and/or 15(3) of the Constitution are 'horizontal reservations'. In the case of 'vertical reservation' under Article 16(4) of the Constitution, the candidates belonging to SC/ST/OBC may compete for non-reserved posts and if they are successful on their merit, their numbers will not be counted against the quota reserved for respective category i.e. SC/ST/OBC.
17. In the case of 'horizontal/special reservation', the principle, which is applicable to 'social/vertical reservation', is not applicable.
Where horizontal reservation for women is provided within the social reservation for the respective category; the procedure for filling up the quota for the relevant category is, in order of merit and then, to determine the number of candidates belonging to the special reservation group and social reservation. In case, number of women in such list is satisfied, there will be no question for further selection towards special/horizontal reservation quota. It is only the shortfall of the requisite number of the women of the social/vertical reservation, who by virtue of special/horizontal reservation would be accommodated displacing the corresponding numbers of the candidates from the bottom of the list of the concerned category i.e. SC/ST/OBC as the case may be. Thus, women candidates selected on merit out of the vertical reservation quota will be counted against the horizontal reservation for women.
18. From the materials available on record, it is further reflected that the respondent-Commission in compliance of the direction issued in the case of Naresh Kumar Sharma (supra); on a representation made by one Piyush Sharma and (4 of 9) [CW-14507/2018] others, revised the select list of the recruitment process involved in the instant case at hand on 10th January, 2013, as would be evident from document Annexure-R/7, placed by the petitioner along with the rejoinder, which is reflected in the information published/uploaded on the website of the respondent-Commission, calling upon the candidates declared successful therein, to download the detailed application form, from the website of the respondent-Commission, and send the application form along with the required certificates to reach the office of the respondent- Commission on 21st January, 2013. Thus, the ground of delay as pleaded on behalf of the respondent-Commission has no substance.
19. The legal position with reference to applicability of doctrine of 'prospective overruling' is no more res-integra. The doctrine of 'prospective overruling' is applied to overcome the interest of the citizens, who may be adversely affected, but then power is to be exercised in the clearest possible terms as has been held by the Hon'ble Supreme Court in the case of P.V. George & Ors. (supra). The judgment in the case of Naresh Kumar Sharma (supra), was affirmed by the Division Bench of this Court in D.B. Civil Special Appeal (Writ) Number 1213 of 2012 (Rajasthan Public Service Commission v. Naresh Kumar Sharma & Ors.), decided on 21st August, 2013. Moreover, a glance of the directions made in the case of Naresh Kumar Sharma (supra), would reveal that those directions are in consonance with the policy of reservation as well as law declared by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra).
20. Furthermore, the law declared by a Court will have a retrospective effect, if not otherwise stated to be shown specifically. Hence, the principle of law declared by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra), held the field while the respondent-Commission undertook the recruitment process in the year 2004 involved herein. A Division Bench of this Court while dealing with somewhat similar controversy on a survey of several earlier opinions of the Hon'ble Supreme Court, including in the case of Anil Kumar Gupta (supra), in a batch of intra-court appeals, lead case being D.B. Civil Special Appeal (Writ) No. 472/2013 - Neelam Sharma v. State of Rajasthan & Ors., held thus:--
"3. The principle relating to horizontal reservation was explained by the Supreme Court in Indra Sawhney v. Union of India (5 of 9) [CW-14507/2018] MANU/SC/0104/1993 : 1992 Supp (3) SCC 217 (para 812) as under:
"[A]II 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 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 the 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 SC Category he 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 favor of Backward Class of citizens remains- and should remain-the same."
4. A special reservation for women in respect of employment is made under Article 15(3). It is different from social reservation made under Article 16(4). The method of implementing special reservation, which is a horizontal reservation has been well explained by the Supreme Court in Anil Kumar Gupta v. State of UP MANU/SC/0747/1995 : (1995) 5 SCC 173. (Para 18) as under:-- "The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as (6 of 9) [CW-14507/2018] stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.)"
5. The Supreme Court again in Rajesh Kumar Daria v. Rajasthan Public Service Commission MANU/SC/7813/2007 : (2007) 8 SCC 785 which was also a case from the State of Rajasthan has explained the method of implementing special reservation for women 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 v. State of Punjab (MANU/SC/0259/1995 : 1995 (2) SCC 745), Union of India v. Virpal Singh Chauvan (MANU/SC/0113/1996 : 1995 (6) SCC 684 and Ritesh R. Sah v. Dr. Y.L. Yamul (MANU/SC/0363/1996 : 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 Castes-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 (7 of 9) [CW-14507/2018] 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 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.]"
6. The Division Bench of this High Court at Jodhpur in Smt. Megha Shetty v. State of Rajasthan MANU/RH/1063/2013 : 2015 Volume (1) WLC (Rajasthan) 761 has already dealt with exactly the same issue raised in the present bunch of appeals. The Division Bench relying upon the above-referred decisions of the Supreme Court has held that in the event of woman candidate belonging to OBC category on securing more marks than the woman candidate of general category finds a position in the select list of candidates of general category, the same cannot be treated as migration. And this decision of the Division Bench is binding on us with which we also fully agree. It is also to be noted that none of the writ petitioners/respondents herein who are women of general category has secured more marks than the women candidate of OBC category selected in open category. The select list of women candidates prepared by the Rajasthan Public Service Commission is strictly in accordance with the law explained by the Supreme Court."
(8 of 9) [CW-14507/2018]
21. Thus, on a cumulative consideration of the facts, circumstances and materials available on record, it is evident that excessive reservation was accorded to women candidates by the respondents in the recruitment to the post of Teacher Grade-III in response to the advertisement dated 2nd June, 2004. It is also not disputed that in the matters involving the same recruitment process in response to the same advertisement dated 2nd June, 2004, the select list has been revised and successful candidates have been accorded appointments, as would be evident from document (Annexure- R/7), placed on record along with the rejoinder, which is of 10th January, 2013, as reflected from the information published/uploaded on the website of the respondent-Commission. Therefore, the claim of the petitioner cannot be declined on the ground of delay. Moreover, the petitioner instituted the writ application in the year 2005 itself."
Learned counsel for the petitioners further urge that petitionrs would be satisfied if the State-respondents are directed to consider and decide the representation of the petitioners, within a time frame in the backdrop of law declared by the Apex Court of the land in the case of Rajesh Kumar Daria (supra) so also opinion of this Court in the case of Manoj Kuamr Tungariya (supra).
In view of the limited prayer addressed; the instant writ proceedings are closed with a direction to the petitioner to address a comprehensive representation to the respondents ventilating their grievances.
In case, a representation is so addressed within the aforesaid period, the State-respondents are directed to consider and decide the same by a reasoned and speaking order as expeditiously as possible in accordance with law, preferably within two months from the date of receipt of the representation along with a certified copy of this order.
(9 of 9) [CW-14507/2018] With the observations and directions, as indicated above, the writ application stands disposed off.
(VEERENDR SINGH SIRADHANA),J Pooja/217 Powered by TCPDF (www.tcpdf.org)