Uttarakhand High Court
Sudhir Kumar vs State Of Uttarakhand And Others on 11 December, 2018
Equivalent citations: AIRONLINE 2018 UTR 908
Author: Lok Pal Singh
Bench: Ramesh Ranganathan, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 392 of 2017
Sudhir Kumar ...Petitioner
Vs.
State of Uttarakhand and others ...Respondents
Mr. Vinay Kumar, learned counsel for the petitioner.
Mr. B.S. Parihar, learned Standing Counsel for the State of Uttarakhand
/respondent nos. 1 and 2.
Mr. B.D. Kandpal, learned Standing Counsel for respondent no. 3/Public Service
Commission.
Mr. B.S. Adhikari, learned counsel for respondent no. 4.
Dated: 11th December, 2018
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Lok Pal Singh, J.
Ramesh Ranganathan, C.J. (Oral) This writ petition is filed seeking a writ of certiorari to quash the selection of the private respondent to the post of Deputy Collector, under horizontal reservation available for ex-servicemen pursuant to the select list dated 27.07.2017, in as much as the petitioner had secured more marks than the private respondent; a mandamus commanding and directing the Public Service Commission to recommend the name of the petitioner for the post of Deputy Collector against the vacancy earmarked, under horizontal reservation for ex-servicemen, as the petitioner had secured more marks than the private respondent; a writ of mandamus commanding and directing the Public Service Commission to recommend the name of the petitioner for the vacancies available under horizontal reservation for general category ex-servicemen in the Combined State Civil/Upper Subordinate Service Examination-2012 which were lying vacant due to non-availability of suitable candidates; a writ in the nature of mandamus commanding and directing the Public Service Commission to recommend the name of the petitioner for the post of Deputy Superintendent of Police earmarked for ex-servicemen under 2 horizontal reservation pursuant to the Combined State Civil/Upper Subordinate Service Examination-2012.
2. The petitioner, a member of the Scheduled Castes, is also an ex- serviceman. Pursuant to an advertisement issued by the Uttarakhand Public Service Commission on 04.09.2014, the petitioner applied for both the posts of Deputy Collector and Deputy Superintendent of Police. It is the petitioner's case that the chart, in the advertisement issued by the Public Service Commission, merely states that reservation was applicable as per the Reservation Policy of the Government; it did not specifically state whether or not ex-servicemen posts were reserved in favour of the Scheduled Castes or the Other Backward Classes; he appeared in the written examination on 31.01.2016, and qualified in both the preliminary and the main examination; the Uttarakhand Public Service Commission declared the result of the main examination on 27.07.2017; while the last selected candidate in the general merit list had secured 818 marks, the petitioner had secured 807 marks; however, the fourth respondent who secured only 776 marks, (lesser marks than what the petitioner had secured), was selected to the post of Deputy Collector on the ground that horizontal reservation, in favour of ex-servicemen, was provided only for the general category; the petitioner was held ineligible, for being considered for appointment in the post horizontally reserved in favour of the ex-servicemen under the general category, on the ground that he belonged to the Scheduled Castes; and there was no quota reserved, under the Scheduled Castes category, for ex-servicemen.
3. Mr. Vinay Kumar, learned counsel appearing for the petitioner, would place reliance on Sections 3(1) and 3(3) of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 to contend that a candidate, belonging to the Scheduled Castes, is entitled to compete for posts in the general category solely on the basis of his merit, as also for posts in the general category reserved in favour of ex-
3servicemen. Learned counsel would rely on Brijendra Deo Mishra vs. Public Service Commission, U.P. Allahabad, (1996) 4 UPLBEC 2392, in support of his submission that reservation is in addition to merit; and the petitioner, despite being a member of the Scheduled Castes, was entitled to be considered on the basis of his merit for appointment to the post of Deputy Collector in the general category post earmarked for ex-servicemen.
4. On the other hand Mr. B.D. Kandpal, learned Standing Counsel appearing on behalf of the Uttarakhand Public Service Commission, as also Mr. B.S. Adhikari, learned counsel for respondent no.4, would submit that, while a member of the Scheduled Castes can, undoubtedly, compete on the basis of his merit in the general category, the last selected candidate in the general category had secured 818 marks which is more than the 807 marks which the petitioner had secured; the petitioner could not, therefore, be considered for appointment under the general category; a distinction must be drawn between vertical reservation and horizontal reservation; while vertical reservation is provided in favour of the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes, horizontal reservation cuts across all categories and consequently, in each such category, certain posts are horizontally earmarked in favour of the physically handicapped, women, ex- servicemen etc. in each category; since horizontal reservation for ex- servicemen was not provided in favour of the Scheduled Castes, the petitioner, who is an ex-serviceman belonging to the Scheduled Castes, is not entitled to be considered for selection to the ex- servicemen post earmarked under the general category; the petitioner cannot compare himself with respondent no.4, and claim to be appointed to the said post on the basis of his merit, since the post of ex-servicemen under the general category is not available to an ex- serviceman belonging to the Scheduled Castes; accepting the submission of Mr. Vinay Kumar, learned counsel for the petitioner, would result in the total percentage of reservation exceeding 50%, and 4 thereby falling foul of the law laid down by the Supreme Court in Indra Sawhney vs. Union of India, AIR 1993 SC 477, wherein reservation has been mandated not to exceed 50%; and horizontal reservation is a compartmentalized reservation which is specific only to that category for which such horizontal reservation is provided.
5. The fallacy of the submission, urged on behalf of the respondents, lies in the erroneous premise that candidates in whose favour vertical reservation is provided, (be it the Other Backward Classes, the Scheduled Castes or the Scheduled Tribes), are not entitled to compete on the basis of their merit in the general category. Reservation in favour of these categories is, undoubtedly, a vertical reservation, and is in addition to merit. The law does not envisage reservation in favour of the general category. Every eligible candidate irrespective of his social status, (whether he belongs to the Other Backward Classesss, the Scheduled Castes or the Scheduled Tribes), is entitled to be considered, for appointment to posts under the general category, solely on the basis of his/her merit. In the case of vertical reservation, it is only after candidates are selected in the general category, would candidates lower in merit be considered for appointment to posts reserved in favour of the categories to which they belong. For instance, if a Scheduled Caste candidate secures the first rank in a competitive examination, he would be treated as a general category candidate; and a member of the Scheduled Caste, lower in merit, would be appointed against the quota earmarked for the Scheduled Castes. Horizontal reservation cuts across vertical reservation, and can be provided in each category. Posts can be horizontally reserved in favour of women, ex-servicemen, physically handicapped etc. in each of the categories i.e. general category, the OBC category, the SC category and the ST category.
6. In the present case, one post was reserved in favour of ex- servicemen under the general category. The fourth respondent, who was selected against the said post, had secured only 776 marks as 5 against the 807 marks secured by the petitioner. If appointment to the said post, earmarked for ex-servicemen, had been made strictly on the basis of merit alone, irrespective of the category to which the applicant belonged, the petitioner would have been selected for appointment to the ex-servicemen post, reserved horizontally under the general category, on the basis of his merit. The fact that he belongs to the Scheduled Castes cannot result in his being deprived of his right to be considered on the basis of his own merit which, in the present case, is higher than that of the fourth respondent. The petitioner secured more marks, in the main examination, than the marks secured by the fourth respondent. Despite the petitioner having secured more marks, he was not appointed to the post of Deputy Collector and the fourth respondent, who was far less meritorious than he, was selected only on the ground that the petitioner belonged to the Scheduled Caste and was not entitled, therefore, to compete for the post horizontally reserved in favour of ex-servicemen under the general category.
7. The respondent-Public Service Commission has selected the 4th respondent on the erroneous premise that the ex-serviceman post, in the general category, is unavailable to ex-servicemen either from the Other Backward Classes, the Scheduled Castes or the Scheduled Tribes. Accepting this submission would result in an indirect mode of communal reservation being reintroduced, which the Supreme Court had frowned upon in The State of Madras vs. Sm. Champakam Dorairajan & another, AIR 1951 SC 226. While vertical reservation, not exceeding 50%, can be provided in favour of the socially and educationally backward sections of society such as the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes, horizontal reservation is permissible in each of the aforesaid categories, as also in the general category, in favour of women, physically handicapped, ex-servicemen etc. While horizontal reservation can be provided in the general category also, all candidates are entitled to compete, for the horizontally reserved posts, 6 on their merit provided they fall under the category for which horizontal reservation is provided. Consequently all candidates, who belong to the ex-servicemen category, are entitled to be considered on their merit to the post earmarked in favour of ex-servicemen under the general category irrespective of whether they belong to the Other Backward Classes, the Scheduled Castes, the Scheduled Tribes or do not belong to any of these reserved categories. The most meritorious among the ex-servicemen is required to be selected and appointed to the post earmarked for ex-servicemen under the general category.
8. While we are satisfied, on first principles, that the Uttarakhand Public Service Commission has erred in denying appointment to the petitioner to the post earmarked in favour of ex- servicemen in the general category, on the basis of his merit, on the erroneous premise that he, being a member of the Schedule Castes, was disentitled to compete for the post of ex-servicemen under the general category, let us also examine the judgments relied on behalf of both the petitioner and the respondents. In Rajesh Kumar Daria vs. Rajasthan Public Service, 2007 (8) SCC 785, the Supreme Court observed thus:-
".........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 v.: Union of India (1995) 5 SCC 429 , the principle of horizontal reservation was explained thus:
"[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 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 the quota will be placed in that quota by making necessary adjustments; similarly, if he 7 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. A special provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P.: (1995) 5 SCC 173 thus:
"...The proper and correct course is to first fill up the Open Competition 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 overall 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 compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as 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.) [Emphasis supplied] 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'.
7. 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 8 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: [1995] 2 SCR 35 , Union of India v. Virpal Singh Chauvan: AIR 1996 SC 448 and Ritesh R. Sah v. Dr. Y.L. Yamul: [1996] 2 SCR 695 ]. 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 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......." (emphasis supplied).
9. The law declared by the Supreme Court, in Rajesh Kumar Daria, is that reservation is in addition to merit, and members of the reserved category (i.e. the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes), are entitled to compete, on their own merit, for being appointed to posts in the general category. Applying the law laid down by the Supreme Court, in Rajesh Kumar Daria, to the facts of the present case would require the Public Service Commission to fill up general category posts, in the first 9 instance, solely on the basis of inter-se merit of the candidates. Such general category posts would also include posts horizontally reserved under the said category i.e. posts earmarked for ex-servicemen, under the general category, must also be filled up with the most meritorious ex-serviceman, irrespective of whether or not he belongs to a reserved category (the Other Backward Classes, the Scheduled Castes or the Scheduled Tribes). The mere fact that posts, horizontally earmarked in favour of ex-servicemen, were not reserved in favour of the Other Backward Classes, the Scheduled Castes or the Scheduled Tribes, could not have resulted in a more meritorious Scheduled Caste candidate, who is also an ex-serviceman, being deprived of selection, under the ex-servicemen quota in the general category, strictly on the basis of his merit. As noted hereinabove, the petitioner secured more marks than the selected candidate (i.e. the 4th respondent), who secured far lesser marks than the petitioner did.
10. The submission of Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service Commission, that horizontal reservation is a compartmentalized reservation provided under each category and is, therefore, not available to those who do not fall within the said category, ignores the fact that posts, horizontally earmarked in favour of ex-servicemen under the general category, should be filled up considering the marks secured by all ex- servicemen on the basis of their merit, including ex-servicemen belonging to the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes. This contention of compartmentalization would not justify the Public Service Commission denying a more meritorious ex-serviceman of being appointed to the post, earmarked for ex- servicemen in the general category, merely because he is an ex- servicemen belonging to the Scheduled Castes category.
11. The submission of Mr. B.D. Kandpal, that if this distinction between horizontal reservation and vertical reservation is not drawn then the reservation percentage would exceed 50%, is only to be noted 10 to be rejected. Reservation, as noted hereinabove, is in addition to merit; and candidates who are selected on their own merit, irrespective of whether or not they belong to the reserved category, cannot be included in calculating the maximum 50% vertical reservation which can be provided in favour of the reserved categories such as the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes. The very same contention, as is now urged before us, was also urged in Brijendra Deo Mishra vs. Public Service Commission, U.P. Allahabad¸ and a Division Bench of the Allahabad High Court observed thus:-
".........The main question that falls for decision is whether quotas for D.F.F., physically handicapped and ex-servicemen are to be calculated as a percentage of total vacancies in a particular service or as a percentage of the vacancies in the respective category, (i.e. Scheduled Castes, Scheduled Tribes and other Backward Classes or General) to which the candidate belongs. Sub-section (I) of Section 3 of 1993 Act provides reservation for the physically handicapped, D.F.F. and Ex-servicemen at 5% of the vacancies, in other words, as a percentage of the total vacancies. After the persons are selected against the vacancies reserved under Sub-section (1) of Section 3, they are under Sub- section (3) of Section 3 to be placed in appropriate category to which they belong. For example, if a selected person belongs to Scheduled Caste category, he is to be placed in that quota by making necessary adjustments. Similarly, if he belongs to open competition category, he is to be placed in that category by making necessary adjustments. A combined reading of Sub-sections (1) and (3) makes it clear that the quotas of the vacancies for physically handicapped, D.F.F. and ex- servicemen are to be calculated as a percentage of total number of vacancies and it is after the persons are selected against the vacancies reserved under Sub-section (1), they have to be placed in the respective caste category by making necessary adjustments.
Our interpretation is in accordance with para 95 of the Supreme Court decision in Indra Sawhney v. Union of India AIR 1993 SC 477. which reads as under:
95. 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, 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.11
Horizontal reservations cut across the vertical reservations- what is called inter-locking 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). We see no Justification for the view expressed by the Commission that if quota of reserved vacancies stipulated in Section 3(1) and the notification issued under Section 3(2) of 1993 Act is calculated as a percentage of the total number of vacancies and if after the persons selected against the vacancies reserved under Sub-section (1) are placed In the appropriate categories to which they belong, reservation will exceed 50% of the total vacancies. Our view also finds support from the decision of a Division Bench of this Court rendered on 8.7.1996 in Civil Misc. Writ Petition No. 12916 of 1996, Sheo Shanker Singh v. Public Service Commission. U.P., where three vacancies were reserved for ex-servicemen, but they were divided in such manner that one vacancy was for general ex-servicemen, another for scheduled caste ex-servicemen and the remaining one was for other Backward Class Ex-servicemen. It was held that dividing "vacancies reserved for ex-servicemen and allocating them to Scheduled Castes, Scheduled Tribes, Backward Classes and General Candidates is without jurisdiction. All Ex-Servicemen, who applied against their reserved quota have to be treated as persons belonging to the one and the same class and all of them are to be considered against all the vacancies reserved for them strictly on the basis of the merit irrespective of the caste/class to which they belong......" (emphasis supplied).
12. Viewed from any angle, we are satisfied that the Uttarakhand Public Service Commission has erred in not appointing the petitioner in the post earmarked for ex-servicemen under the general category, though he secured more marks than the fourth respondent, solely on the ground that he belonged to the Scheduled Castes category. The selection of the fourth respondent is set-aside. The Public Service 12 Commission shall, forthwith, forward the petitioner's name to the Government for necessary orders to be issued appointing him in the post of Deputy Collector under the quota of ex-servicemen earmarked under the general category.
13. The writ petition is allowed. However, in the circumstances, without costs.
(Lok Pal Singh, J.) (Ramesh Ranganathan, C.J.)
11.12.2018 11.12.2018
NISHANT