Rajasthan High Court - Jaipur
Naresh Kumar Sharma And Ors vs State Of Raj And Ors on 20 September, 2011
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. S.B. Civil Writ Petition No.3414/2009 Naresh Kumar Sharma & Ors. Versus State of Rajasthan & Anr. 2. S.B. Civil Writ Petition No.7995/2010 Leela Dhar Sahal & Ors. Versus Rajasthan Public Service Commission & Anr. 3. S.B. Civil Writ Petition No.11483/2009 Mahesh Kumar Sharma & Ors. Versus State of Rajasthan & Anr. 4. S.B. Civil Writ Petition No.11482/2009 Mahendra Kumar Sharma & Ors. Versus State of Rajasthan & Anr. Date of Order :: 20th of September, 2011 PRESENT HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Akhil Simlote for petitioners. Mr.S.N. Kumawat, Addl.A.G. for State-respondents. <><><> By the Court:
The petitioners' grievance in the present matter is regarding extension of vertical reservation to the female though they are entitled for horizontal reservation. On account of application of vertical reservation, excess appointment has been given to the female towards reservation.
Learned counsel for petitioners submits that respondent - Rajasthan Public Service Commission (for short 'the RPSC') had issued an advertisement on 30.10.2006 calling for applications for two different posts in different districts. All the petitioners are eligible and therefore made applications for their appointment on the post of Teacher Grade-III. They were allowed to appear in the selection and thereupon respondent RPSC declared the result. Petitioners were surprised to notice that while preparing merit list of general category known as 'other category', female candidates find place in the merit list on account of their merit were not counted towards reservation meant for them. Aforesaid action of the respondents was as if they are providing social reservation to the female, which is otherwise meant for SC, ST & OBC category candidates. Social reservation to the SC, ST & OBC category candidates is vertical in nature thereby candidates find place in the merit of general category/other category are not to be counted towards reservation, but same analogy cannot been adopted for female candidates as they are entitled for horizontal reservation. The principle of horizontal reservation is to count even those candidates who find place in the general list on account of their merit and if there exists shortfall, then to make up the reserved seat meant for them, appointment only to the extent of shortfall have to be given from the female candidates left out in order of merit. The issue of horizontal reservation came up for consideration before Hon'ble Apex Court in the case of Anil Kumar Gupta & Ors. Versus State of U.P. & Ors. reported in (1995) 5 SCC 173. Therein, issue was clarified giving out as to how horizontal reservation is to be applied. Contrary to judgment aforesaid, respondents have given reservation to female candidates and thereby around 686 female candidates have been given appointment in excess. This is on account of wrong application of reservation policy for them. Resultantly, petitioners were deprived to get appointment despite their merit position. Aforesaid issue was later on clarified by Hon'ble Apex Court in the case of Rajesh Kumar Daria Versus Rajasthan Public Service Commission & Ors. reported in (2007) 8 SCC 785 and has taken same view as was taken earlier in the case of Anil Kumar Gupta (supra). Looking to aforesaid, action of respondents is held to be illegal and a direction be given for appointment to the petitioners. Even recently, Hon'ble Apex Court has decided a matter in regard to reservation for female candidates in the case of Jitendra Kumar Singh & Anr. Versus State of Uttar Pradesh & Ors. reported in (2010) 3 SCC 119. Therein judgment in the case of Rajesh Kumar Daria has been reiterated.
Per contra, learned Additional Advocate General, Mr. S.N. Kumawat for respondents has supported the action of respondents. It is submitted that judgment in the case of Rajesh Kumar Daria (supra) was pronounced on 18.7.2007 whereas selection and declaration of result is prior to aforesaid judgment. Respondents accordingly allowed benefit of reservation to female candidates with the formula as is applicable to vertical reservation. In fact, respondent RPSC was not inclined to apply vertical reservation to female, however, they were compelled to do so in view of the Division Bench's judgment in the case of Hari Om Aswathi & Ors. Versus Rajasthan Public Service Commission & Ors. reported in 2000 (3) WLC (Raj.) 551. Therein, respondent RPSC was commanded with direction not to count those female towards reservation, who fall in the merit of general candidates/other category candidates and accordingly, respondents were left with no option but not to count those female who could find place in the merit list of general category candidates on account of their own merit. On pronouncement of the judgment in the case of Rajesh Kumar Daria (supra), respondents have stopped applying formula evolved and direction given in the case of Hari Om Awasthi (supra). In the aforesaid background, their action is wholly justified more so when the Division Bench of this Court in the case of Ramzan Ali & Anr. Versus State of Rajasthan & Ors. - D.B. Civil Writ Petition No.8637/2007 decided on 29.2.2008, allowed the same formula for providing reservation to female as was applied prior to judgment in the case of Rajesh Kumar Daria (supra). Hence, this Court may dismissed the writ petitions filed by petitioners after holding application of the judgment of Rajesh Kumar Daria (supra) to be prospective in nature.
I have considered the rival submissions of the parties and scanned the matter carefully.
It is a case where respondents conducted selection for the post of Teacher pursuant to the advertisement of the year 2006. Result thereupon was declared followed by appointments. While preparing select list, it was first for general category strictly in order of merit irrespective of caste and gender. On preparation of aforesaid list, respondents prepared the list for other category candidates to provide reservation, which is SC, ST & OBC and even female candidates etc. To provide reservation to the female candidates to the extent of 30%, it was decided that those female who could find place in the merit list of general category, may not counted towards reservation. By virtue of the aforesaid, it has been admitted by both the parties that female reservation was applied vertically though in view of the judgment of the Hon'ble Apex Court in the case of Rajesh Kumar Daria (supra), it has to be applied horizontally. It has further been admitted by respondents that now female are provided horizontal reservation i.e., if any female candidates find place in the merit list of general category on account of their merit, they are counted towards reservation and after counting their number, if shortfall exists, then to make up the reservation to the extent of shortfall, candidates are given benefit of appointment to complete the reservation quota of female.
The only argument of learned Additional Advocate General is that judgment in the case of Rajesh Kumar Daria (supra) is the first judgment on the issue, thus it has to be applied prospectively. This is more so when not only selection but declaration of merit list is prior to judgment in the case of Rajesh Kumar Daria (supra) dated 18.7.2007 though appointments were made thereafter. Other argument is that they were bound to follow the judgment of the Division Bench of this Court in the case of Hari Om Awasthi (supra) and even in the case of Paras Mal Jain & 7 Ors. Versus The State of Rajasthan & Ors. reported in 2002 (2) WLC (Raj.) 1. They have supported their argument by the judgment in the case of Ramzan Ali (supra).
I have also considered the aforesaid submissions of learned Additional Advocate General.
First question raised by respondents is regarding prospective application of judgment in the case of Rajesh Kumar Daria (supra). Aforesaid submission made by respondents cannot be accepted because law in regard to the horizontal reservation was not propounded therein for the first time. Special reservations are vertical or horizontal had been settled by the Hon'ble Apex Court in the case of Anil Kumar Gupta (supra). Since the legal position was clarified in the aforesaid judgment, it became applicable. Para 18 of the said judgment is quoted hereunder hereunder for ready reference:-
Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.B.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas). The proper and correct course is to first fill up the O.B.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 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.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota.
Perusal of para quoted above clarifies as to how special reservation is to be applied, which exists in the present matter in favour of female candidates. Same view was taken by the Hon'ble Apex Court in the case of Swati Gupta (Ms.) Versus State of U.P. & Ors. reported in (1995) 2 SCC 560. Thus, it is not correct to state that the first judgment on the aforesaid issue was in the case of Rajesh Kumar Daria (supra). Even if, argument of respondents regarding prospective application of the judgment is accepted, the law in regard to the horizontal reservation and treatment thereupon was settled by the Hon'ble Apex Court in the year 1995 itself. The judgment in the case of Rajesh Kumar Daria (supra) is nothing but reiteration of the same principle as laid down by the Hon'ble Apex Court earlier in the year 1995. In the case of Rajesh Kumar Daria (supra), the legal position was summarized and it was held that female candidates are not entitled to vertical reservation and by giving an example, the Hon'ble Apex Court clarified as to how reservation to female candidates is to be given. The relevant paras 7, 9, 10 and 12 of the aforesaid judgment are quoted hereunder for ready reference:-
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 reservations, was explained by this Court in Anil Kumar Gupta vs. 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]
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 Chauvan (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 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.)
10. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 women candidates, which was equal to the quota for 'General Category - Women'. There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven women candidates selected on their own merit (candidates at Sl.Nos.2, 3, 4, 5, 9, 19, 21, 25, 31, 35 & 41 of the Selection List) and another eleven (candidates at Sl.Nos.54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the Selection List) included under reservation quota for 'General Category-Women'. This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation.
12. The appellants' grievance that the selection process adopted by RPSC was contrary to the reservations policy contained in Rule 9(3) is justified. But the question is whether the entire selection should be set aside and whether all appellants should be granted relief. On completion of the selection process, 97 candidates were appointed in the year 2002 and have been serving as Judicial Officers for more than five years. There has also been a subsequent selection and appointments in the year 2005. Further all the selected candidates are not impleaded as parties. Even from among the original ten writ petitioners, only seven are before us. On the facts and circumstances, we do not propose to disturb the selection list dated 30.12.2001 or interfere with the appointments already made in pursuance of it. We will only consider whether the appellants before us are entitled to relief. We find that even if the selection list had been prepared by applying horizontal reservation properly, only the appellant (Rajesh Kumar Daria) in this appeal, and appellant Nos.3 and 6 in the connected appeal (Mohan Lal Soni and Sunil Kumar Gupta) will get selected. The other appellants were not eligible to be selected.
Perusal of the paras quoted above clarifies about the application of the horizontal and vertical reservations and same view has been reiterated by the Hon'ble Apex Court in the case of Jitendra Kumar Singh (supra). Aforesaid judgment has been rendered by considering earlier judgment of the Hon'ble Apex Court, thus a new law has not been propounded by the Hon'ble Apex Court first time in the case of Rajesh Kumar Daria (supra) or in the case of Jitendra Kumar Singh (supra). The respondent RPSC was under an obligation to apply the ratio propounded by the Hon'ble Apex Court in the case of Anil Kumar Gupta (supra). Accordingly, first argument regarding prospective application of the judgment of the Hon'ble Apex Court in the case of Rajesh Kumar Daria (supra) has no application in the present matter.
The fact now comes regarding the judgment of this Court in the case of Hari Om Awasthi as well as Paras Mal Jain (supra). In those cases, a view was taken by the Division Bench of this Court, which was different than settled by the Hon'ble Apex court in the case of Anil Kumar Gupta (supra). Judgment of the Division Bench in the case of Hari Om Awasthi (supra) was accordingly reversed by the Hon'ble Apex Court in the appeal preferred by Rajesh Kumar Daria & Ors. The judgment in the case of Hari Om Aswathi (supra) was contrary to the settled law in view of the judgment in the case of Anil Kumar Gupta (supra), that too, pronounced in the year 1995. This is more so when respondent RPSC was knowing it well that the judgment in the case of Hari Om Awasthi (supra) has not attained finality as appeal preferred by Rajesh Kumar Daria was pending before the Hon'ble Apex Court and the judgment therein was even reversed.
The appointments in the present matter are admittedly subsequent to the judgment in the case of Rajesh Kumar Daria (supra), thus respondents were expected to provide appointments after applying the judgment in the case of Rajesh Kumar Daria (supra), if at all they were having some compulsion to apply judgment of this court in the case of Hari Om Awasthi earlier. The respondents ignoring the judgment in the case of Rajesh Kumar Daria (supra) made appointments by providing vertical reservation to the female candidates whereas they could have denied the benefit of vertical reservation to the female candidates keeping in mind the judgment in the case of Rajesh Kumar Daria (supra) having been pronounced prior to the appointments. The State should have called the list afresh as per judgment in the case of Rajesh Kumar Daria (supra). The action of the respondents thus cannot be held justified in the aforesaid circumstances. The same is the position regarding other judgment in the case of Paras Mal Jain (supra).
So far as the judgment in the case of Ramzan Ali (supra) is concerned, the facts considered therein were entirely in reference to the case of Rajesh Kumar Daria (supra) and are not in reference to the judgment earlier given by the Hon'ble Apex Court in the case of Anil Kumar Gupta (supra). In fact, counsel appearing for the appellants therein failed to cite the judgment of the Hon'ble Apex Court rendered earlier to Rajesh Kumar Daria's case. The Division Bench of this Court dismissed the appeal, therein taking note of the fact that process of selection was completed in the year 2005 and appointments have also been made, thus selection and appointment were not disturbed, though it was noticed that judgment in the case of Hari Om Awasthi (supra) is not held good. Thus, facts of this case are distinguishable than the facts involved in the case of Ramzan Ali (supra). Herein petitioners have not prayed for disturbing the selection but prayer is to give them appointment in order of merit to avoid injustice caused to them on account of appointment to the female candidates in excess to their reservation quota, that too, appointments have been made herein after the judgment of the Hon'ble Apex Court in the case of Rajesh Kumar Daria (supra).
In the background aforesaid, respondents cannot be allowed to take benefit of their own defaults as learned Additional Advocate General could not satisfy this court as to why appointments were given to female candidates by applying the reservation vertically more so when judgment of the Hon'ble Apex Court in case of Rajesh Kumar Daria (supra) came on 18.7.2007 itself and appointments are after that.
The fact, however, remains that appointments were given almost three years back, thus while not disturbing the selection as well as appointment made in favour of the candidates, I direct the respondents to consider the case of the petitioners for appointment in order of merit, if 686 female candidates would not have been given appointment in excess to the reservation. If any of the candidates come in the merit list as against the excess reservation in favour of the female candidates, then respondents are directed to give the appointment to the petitioners. It is clarified that if any of the candidates fall at a lower place in the merit list, if 686 female candidates would not have been given appointment in excess to reservation, that petitioners would not be entitled for appointment. Direction aforesaid has been given in the light of the judgment of the Hon'ble Apex Court in the case of Anil Kumar Gupta (supra). Therein also while clarifying the issue of horizontal reservation, a direction was given to provide admission to the petitioners to complete the justice. Thus, direction for appointment to the petitioners is given accordingly. Direction aforesaid may be complied with within a period of three months from the date of receipt of certified copy of this order.
With the aforesaid directions, all these writ petitions so as the stay applications are disposed of.
(M.N. BHANDARI), J.
Item No.163-167 Sunil/JrPA All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
(Sunil Solanki) P.A