Telangana High Court
Urolla Ramesh vs Smt A Shanthi Kumari, Ias on 20 December, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.19088 of 2024
and
CONTEMPT CASE No.1580 of 2024
COMMON ORDER:
Since both these matters are inter se connected with each other, they are taken up together and disposed of by this common order.
2) Heard Ms.Devara Samhitha, learned counsel for the petitioner, learned Government Pleader for Services-III appearing for respondents 1 and 2, and Sri P.S. Rajasekhar, learned Standing Counsel, for respondent No.3.
3) Learned counsel for the petitioner has stated that in response to the notification No.22/2022, dated 09.12.2022, issued by the third respondent, the petitioner had applied for the post of Junior Lecturer. In Annexure-I appended to the said notification, posts were earmarked for categories of physical handicapped, women and sports persons in vertical reservation. Thereafter, due to issuance of G.O.Ms.No.35, dated 13.02.2024, respondent No.3 has issued web note dated 27.06.2024 releasing the revised break up of vacancies by considering women in horizontal reservation. However, the said revised break up is also not in accordance with the dicta laid down by the Hon'ble Supreme Court as the category of Persons with Disabilities and Sports are still allotted under vertical reservation. The reservation for physically handicapped 2 wp_19088_2024 and cc_1580_2024 persons as vertical is contradictory to the principles established by the Hon'ble Supreme Court and various High Courts. The candidates who applied for the said posts through the above said notification will be aggrieved in the recruitment process if the Physically Handicapped and Sports candidates are considered under vertical reservation rather than horizontal reservation. Learned counsel has further contended that even after the Hon'ble Supreme Court, time and again, has laid down the principles on how a reservation must be considered in Indra Sawhney v. Union of India 1 and Rajesh Kumar v. Rajasthan Public Service Commission 2, without considering the same, respondent No.3 had again released the notification by showing the Persons with Disabilities in vertical reservation, which is absolutely illegal, arbitrary and violative of equal opportunity. Further, consideration of Physically Handicapped persons and Sports persons under vertical reservation would grievously affect the 100 point roster to other candidates who are equally or more eligible for the said post. As per Rule 22 and 22A of Telangana State and Subordinate Services Rules, 1996, the 100 point roster is followed at present and the essence and purpose of the same would be defeated if the Physically Handicapped candidates are considered under vertical reservation. Learned counsel has further contended that duly following the dicta laid down by the Hon'ble Supreme Court in Rajesh Kumar Daria's case (referred supra) that 1 1992 Supp (3) SCC 217 2 (2007) 8 SCC 785 3 wp_19088_2024 and cc_1580_2024 Women and Physically Handicapped persons or any special reservation have to be considered as horizontal reservation but not vertical reservation, the State of Andhra Pradesh has issued G.O.Ms.No.77, dated 22.08.2023, making amendment to Andhra Pradesh State and Subordinate Services Rules, 1996, and issued operational guidelines explaining horizontal reservation. Though, the State of Telangana also issued G.O.Ms.No.35, dated 13.02.2024, making amendments to Telangana State and Subordinate Service Rules, 1996, implementing horizontal reservation in respect of women, but it failed to include the Physically Handicapped and Sports categories in horizontal reservation. The State of Telangana in G.O.Ms.No.27, dated 10.04.2017, has notified Telangana Medical Colleges Rules 2017 (Admission into PG Course) Rules, 2017, wherein 33.33% women reservation, 3% PH reservation were specified as horizontal reservation. Therefore, when women and meritorious sports persons are recognized under horizontal reservation, the category of physically handicapped also must be equally considered in horizontal reservation. Contrary to the same and without following the principles as laid down by the Hon'ble Apex Court, the respondents continue to select the candidates as per the present notification extending vertical reservation to the physically handicapped and meritorious sports persons, due to which, the petitioners and many other aspirants would be put to irreparable loss and injury. Therefore, 4 wp_19088_2024 and cc_1580_2024 the learned counsel prayed to pass appropriate orders in the writ petition. Reliance has been placed on the following judgments:
1) Order dated 06.02.2024 passed by this Court in W.P.No.25742 of 2023;
2) J.V.S.P. Purnananda Rao v. J.V.S.P. Purnananda Rao 3;
and
3) Sk. Nausad Rahaman v. Union of India 4.
4) Per contra, the learned Government Pleader for Services-III has contended that respondent No.3 has issued the notification No.22/ 2022, dated 09.12.2022, inviting applications for 1392 vacancies of Junior Lecturers under the control of Commissioner of Intermediate Education in the State of Telangana including 77 vacancies reserved for Persons with Disabilities. Further, in view of provision under Section 34 of Right of Persons with Disabilities Act, 2016 (in short 'Act of 2016'), reservation in employment to Persons with Benchmark disabilities has to be provided. Hence, the Government of Telangana has issued G.O.Ms.No.10, Women, Children, Disabled and Senior Citizens, (Estt.), dated 30.08.2018, providing 4% reservation in respect of Persons with Benchmark Disabilities in appointment in public services i.e.1% to each category of disabilities duly earmarking vacancies in the cycle of 100 roster point. In the said G.O., there is also a provision to carry forward the unfilled vacancies earmarked for Persons with Disabilities to 3 2006 (1) ALT 528 (D.B.) 4 2022 LiveLaw (SC) 266 5 wp_19088_2024 and cc_1580_2024 succeeding recruitment year and even in the succeeding recruitment year, if no person with such disability is available, the said vacancy shall be filled by interchangeable with person with disabilities and even then if no persons with disabilities are available, then such vacancy shall be filled by other than person with disabilities, as provided under Section 34 (2) of the Act of 2016. Accordingly, Rule 22 of Telangana State and Subordinate Service Rules, 1996, has been amended vide G.O.Ms.No.96, GAD, dated 22.07.2019, by protecting the interest of all categories of Persons with Disabilities in the process of direct recruitment meant for persons with disabilities. The said G.O. was issued keeping in view the provisions of the Act of 2016 and subsequent orders in G.O.Ms.No.10, dated 30.08.2018. Further, insofar as G.O.Ms.No.27, dated 10.04.2017, is concerned, the said G.O. deals with Rules for admission into Post Graduate Medical Courses and does not pertain to employment notifications for filling up of posts. Hence, it is irrelevant in the present context of implementation of horizontal reservation to fill up the posts. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.
5) Learned Standing Counsel for respondent No.3 has contended that respondent No.3 will follow Rule 22 of Telangana State and Subordinate Service Rules, 1996, while implementing Rule of Reservation at the time of filling up of vacancies in various recruitments and if any clarification is required, the matter will be processed as per 6 wp_19088_2024 and cc_1580_2024 the relevant General and Special Rules in force. Further, vide G.O.Ms.No.96, dated 22.07.2019, comprehensive orders were issued by the Government of Telangana inconsonance with the provisions of Section 34 of Act of 2016 for making necessary amendments to Rule 22 of Telangana State and Subordinate Service Rules, 1996. Act of 2016 is a Central legislation and it mandates reservation of not less than 4% of the vacancies in all services in favour of Persons with Benchmark disabilities. As per the existing Rule of Reservation envisaged under Rule 22(2)(e) of Telangana State and Subordinate Service Rules, 1996, four roster points (i.e. 6th, 31st, 56th and 82nd) are earmarked in the order of rotation in each cycle of hundred vacancies for the Persons with disabilities and such allocation is from Open Category. To be precise, 4% of the vacancies in a cycle of 100 are reserved in favour of Physically Handicapped Persons inconsonance with the provision of Section 34 of Act of 2016. Within the vacancies reserved for the persons with disabilities, the vacancies are further bifurcated, thereby indicating the vacancies reserved for different categories of disabilities such as OH, HH, VH, MH and others. Further, sub-section (1) to Section 34 of Act of 2016 clearly provides that the vacancies shall be reserved against the total number of vacancies in the cadre strength in each group of posts. Further, in the event of non-availability of suitable persons with Benchmark disabilities in the roster point, the existing Rules permit to carry forward the point in a just and fair manner to the 7 wp_19088_2024 and cc_1580_2024 succeeding recruitment year and even in the succeeding recruitment year also the suitable disability category is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year the employer shall fill up the vacancy by appointing a person other than with disabilities. Hence, the Persons with Disabilities, whether they belong to SC, ST, SEBC, etc., they are entitled to compete for the posts earmarked for Persons with Disabilities. Therefore, the third respondent is justified in granting the benefit of reservation to Persons ith Disabilities in accordance with the existing Rules & GOs, which are in force as on the date of issuance of notification and the same are specified in the notification duly indicating the roster points, breakup of vacancies, etc. for the post indented by the department concerned. It is further submitted that the third respondent does not maintain the roster points pertaining to posts. Further, the respective Departments maintain the rosters and furnish the indents specifying the roster points. The third respondent only aggregates the total number of vacancies received from each department and notifies them and the 4% of the vacancies allocated from Open Category are reserved in favour of Persons with Disabilities. Further, all the persons irrespective of their Caste Status are entitled to compete for the posts earmarked in favour of Persons with Disabilities. Further, the reservation to meritorious Sports Person is applicable as per the amendments to The Telangana 8 wp_19088_2024 and cc_1580_2024 State and Subordinate Service Rules, 1996, as per G.O.Ms.No.107, GAD, dated 27.07.2018, and as per G.O.Ms.No.5, YAT & C (Sports) Department, dated 14.05.2018, or as revised by the Government from time to time. It is further contended that the third respondent- Commission is only a recruiting agency and the main statutory function of the third respondent is to conduct examination in order to fill up the posts in direct recruitment in accordance with the Statutes, GOs and relevant Rules issued by the Government from time to time. Therefore, there are no merits in the writ petition and the same may be dismissed.
6) This Court has taken note of the submissions made by the respective counsel.
7) This Court on 19.07.2024 while issuing notice before admission has issued an interim direction to the respondents, relying on the law laid down by the Hon'ble Supreme Court in Rajesh Kumar Daria's case (referred supra), to follow horizontal reservation for special reservation i.e. Persons with Physically Handicapped, in pursuance of Notification No.22/2022, dated 09.12.2022. Alleging wilful disobedience of the said order, petitioner has filed Contempt Case No.1580 of 2024.
8) A perusal of the record discloses that respondent No.3 has issued Notification No.22/2022 dated 09.12.2022, inviting applications for the 9 wp_19088_2024 and cc_1580_2024 post of Junior Lecturers. Clause 12 thereof deals with Reservation. Relevant portion of the same reads as under:
(i) The Rule of Reservation will be applicable in terms of General Rule 22 & 22(A) of Telangana State and Subordinate Service Rules, the Government Orders/Instructions and the Court orders, if any, in that regard, before completion of selection process.
(ii)Reservation to Disabled persons is subject to the Special Rules/Adhoc Rules governing the posts. The extent of Disability will be decided by the State Appellate Medical Authorities.
(iii) If eligible disabled women candidates of VH(W)/HH(W)/ OH(W)/MH(W) category are not available in the initial recruitment, the same shall be filled up by the eligible Male candidates with same category of disability respectively as per G.O.Ms.No.96 General Administration (Ser.D) Department, Dt. 22/07/2019. Hence, eligible male candidates of VH/HH/OH/MH disabled category can also apply for the posts meant for Women categories.
(iv) For Carry Forward PH vacancies, if eligible disabled candidates of that particular category are not available, the same shall be filled up by the method of interchanging as per G.O.Ms.No.96 General Administration (Ser.D) Department, Dt. 22/07/2019. Hence, candidates of all the disabled categories can apply.
(v) .... (vi) The reservation to Meritorious Sports Person is applicable as
per the amendments made to State and Subordinate Service Rules as per G.O.Ms.No.107, General Administration (Ser.D) Dept., Dt. 27-07- 2018 that is in Rule-2, for sub-Rule (20) and Rule-22 (i) in sub-Rule (2), for Class-D in implementing the reservation to Meritorious Sports Person as per G.O.Ms.No.05, YAT & C (Sports) Department, Dt. 14/05/2018, or as may be revised by the Government from time to time shall be followed."
10
wp_19088_2024 and cc_1580_2024
9) It is relevant to note that Government has issued G.O.Ms.No.10, Women, Children, Disabled and Senior Citizens (Estt.) Dept., dated 30.08.2018, providing 4% reservation to Persons with Benchmark Disabilities in employment in Public Services. Subsequently, the Government has also issued G.O.Ms.No.96, General Administration (Ser.D) Department, dated 22.07.2019, duly amending the Telangana State and Subordinate Service Rules, 1996, protecting the interest of all categories of persons with disabilities in direct recruitment meant for Persons with disabilities.
10) As per Rule 22 and 22-A of Telangana State and Subordinate Service Rules, 1996, the following roster points are earmarked for Persons with Disabilities: 6, 31, 56 and 82.
11) The Hon'ble Apex Court in Rajesh Kumar Daria's case (referred supra) has declared that the social reservations in favour of SC, ST and OBC under Article 16(4) of the Constitution of India are 'vertical reservations' and special reservations in favour of Persons with Disabilities and women envisaged under Articles 16(1) or 15(3) are 'horizontal reservations'. Relevant observations of the Hon'ble Apex Court are extracted hereunder:
"7. A 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 11 wp_19088_2024 and cc_1580_2024 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 OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e.SC, ST and BC; 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]
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 number 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 that 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 vs. Union of India (1992 Supp (3) SCC 217), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. 12 wp_19088_2024 and cc_1580_2024 Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah v. 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 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.] 13 wp_19088_2024 and cc_1580_2024
12) Further, the Hon'ble Supreme Court in Rajesh Kumar Daria's case (referred supra) has also explained a proper mode of description of reservation. Relevant portion of the said judgment is extracted hereunder:
"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"."
13) Before further dwelling into the matter, this Court feels it apt to mention that the petitioner herein has challenged only the manner of implementation of reservation adopted by the respondent Commission in respect of Persons with Disabilities, however, no challenge was made either to notification dated 09.12.2022 or Rule 22 and 22-A of Telangana State and Sub-ordinate Service Rules, 1996, wherein 100 roster points are fixed earmarking roster point Nos.6, 31, 56 and 82 for Persons with Disabilities.
14) The petitioner is solely challenging the manner followed by the respondent Commission in filling the vacancies without therebeing any challenge to the notification dated 09.12.2022, wherein 77 vacancies were reserved for Persons with Disabilities. In this scenario, the only 14 wp_19088_2024 and cc_1580_2024 remedy available to the petitioner is to challenge Rule 22 and 22-A of Telangana State and Subordinate Service Rules, 1996, and in the absence of any such challenge he is estopped from challenging either the roster points prescribed under the said Rules or the recruitment undertaken based on the said roster points. In the absence of any challenge to the Rules, the grievance of the petitioner that can be looked into by this Court is limited to 'whether the selection and appointment undertaken by the respondent Commission is in accordance with the notification dated 09.12.2022 or not?'
15) In the notification dated 09.12.2022 nowhere the Commission has declared that recruitment process will be undertaken by treating the reservation for Persons with Disabilities either as 'horizontal reservation' or 'vertical reservation'. However, in the counter affidavit, it is categorically asserted by the Commission that it is bound to follow the Telangana State and Subordinate Service Rules, 1996, while undertaking recruitment process. The question as to whether the said Rules are inconsonance with the law laid down by the Hon'ble Supreme Court or not cannot be gone into by this Court as the same amounts to impermissible travel beyond the scope of the Writ Petition, since there is no challenge to fixation of roster points or the Rules.
16) Coming to the judgments relied by the learned counsel for the petitioner in Rajesh Kumar Daria, Mamta Bisht, R.K. Sabharwal 15 wp_19088_2024 and cc_1580_2024 and Indra Sawhney (referred supra), there is no dispute with regard to the law laid down by the Hon'ble Supreme Court in the said cases, but the said judgments cannot be made applicable to the facts of the present case since, in the case on hand, no challenge was made to Rule 22 and 22-A of the Telangana State and Subordinate Rules, 1996, which prescribe something otherwise.
17) Insofar as the other judgments relied by the learned counsel for the petitioner are concerned, they are distinguishable on facts of the present case and therefore no avail to the petitioner.
18) In view of the above discussion, the relief sought for by the petitioner cannot be granted by this Court in the absence of challenge to Rule 22 and 22-A of Telangana State and Subordinate Rules, 1996, and also the Notification dated 09.02.2022. Therefore, the Writ Petition is liable to be dismissed.
19) Insofar as Contempt Case is filed, the respondents have specifically pleaded that the interim order dated 19.07.2024 passed by this Court in W.P. No.19088 of 2024 could not be complied with, in view of the legal hurdles, but not wantonly. Further, the respondents have also filed vacate stay petitions in the Writ Petition seeking to vacate the interim order itself. Therefore, absolutely there is no wilful disobedience on the part of the respondents as alleged by the petitioner. 16
wp_19088_2024 and cc_1580_2024
20) Having satisfied with the submissions made by the learned counsel for the respondents, this Court is of the view that the petitioner has failed to make out wilful disobedience on the part of the respondents for imposing punishment under Contempt of Courts Act, 1971.
21) For the afore-mentioned reasons, the Writ Petition is dismissed and the Contempt Case is closed.
Miscellaneous petitions pending, if any, shall stand closed. No costs.
____________________
PULLA KARTHIK, J
Date : 20 -12-2024.
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