Punjab-Haryana High Court
Ajit Singh vs State Of Haryana And Others on 6 September, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
Date of Decision: 06.09.2011
CWP No.18738 of 2009
Ajit Singh
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: Mr. R.K.Malik, Senior Advocate, with
Mr. Kohal Dev Sharma, Advocate, for the petitioner.
Mr. Saurabh Mohunta, DAG, Haryana, for respondent No.1.
Mr. H.N.Mehtani, Advocate, for respondent No.2.
Mr. Karan Nehra, Advocate, for respondent No.3.
HEMANT GUPTA, J.
The following questions have been referred by the learned Single Judge for the decision by the Larger Bench:
(i) What would be the nature of reservation provided for Ex-servicemen i.e. would they be social reservations or would they be special reservations contemplated by Article 16(3) & 16(4) of the Constitution of India; and
(ii) Whether the posts which are reserved for Ex-servicemen category should be filled up by following the course as prescribed by law applicable to vertical reservations or by the course adopted in the cases of horizontal reservations?
The said questions have arisen in view of the fact that the petitioner applied for a post of Assistant District CWP No.18738 of 2009 2 Attorney (Group-B) in the Prosecution Department, as an Ex-serviceman. 54 posts were advertised out of which, 3 posts were meant for Ex- servicemen category. It is the contention of the petitioner that the candidate with Roll No. 2484 has obtained 442.66 marks, which is more than 442.00 marks obtained by last General category candidate, thus, the said candidate bearing Roll No.2484 has to be treated as General category candidate and consequently, he being the next in the merit-list of Ex-servicemen category is entitled to be appointed as Assistant District Attorney.
The petitioner has relied upon instructions dated 25.06.1997, whereby in respect of candidates belonging to Scheduled Castes and Backward Classes, it has been clarified that a candidate of such category is selected on his own merit, then such candidate should be reduced from the reservation quota meant for that category. Reference is also placed upon a judgment of Division Bench of this Court in CWP No.5245 of 1996 decided on 22.8.1996 titled "Mahender Singh Vs. State of Haryana and others", whereby candidates belonging to reserved categories i.e. Backward Class were ordered to be appointed against the General category on their own merit without the help of reservation. It is, thus, contended that since the candidate with Roll No.2484 has obtained more marks than the last General category candidate, therefore, such candidate is to be treated in the merit list of General category candidate and the petitioner be recommended for appointment against the 3rd post meant for Ex-serviceman.
On behalf of the Public Service Commission, it has been contended that the judgment of this Court in Mahender Singh's case (supra) is distinguishable, as it was a case of Backward Class category, whereas the petitioner belongs to Ex-serviceman category. Therefore, the ratio of the aforesaid judgment is not applicable to the facts of the present case. It is CWP No.18738 of 2009 3 contended that the argument that a candidate belonging to Reserved category, if has obtained more marks than the last open category candidate, has to be treated in open category, is applicable only in respect of reservation carved out under Article 16(4) of the Constitution of India for any Backward Class of categories and not in respect of special reservations meant for Ex-servicemen, Physically Handicapped and Women etc. The State Government in its reply supported the stand taken by the Public Service Commission and contended that the judgment referred to by the petitioner is applicable to the candidates belonging to Scheduled Castes and Backward Class categories alone.
During the course of arguments before the learned Single Judge, the petitioner relied upon a judgment of this Court in Devender Singh Vs. State of Haryana and another (CWP No.20560 of 2008 decided on 17.03.2009). On the other hand, learned counsel for the respondents relied upon the judgments of Hon'ble Supreme Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others (2007) 8 SCC 785 and of Division Bench of this Court in Ashwani Kumar Kaushik and another Vs. Haryana Public Service Commission and others (LPA No.555 of 2010 decided on 11.11.2010), to contend that the reservation for Ex-serviceman is a reservation under Article 16(1) and not social reservation as contemplated by 16(4) of the Constitution of India. The petitioner has applied against the post meant for Ex-servicemen category, therefore, he cannot cross over to any other category.
Before this court, the learned counsel for the petitioner has argued that the social reservation i.e. reservation meant for Scheduled Castes, Scheduled Tribes and Backward Classes is the vertical reservation falling within the scope of Article 16(4) of the Constitution of India, whereas CWP No.18738 of 2009 4 reservation such as for Ex-servicemen, Freedom Fighters, Sportspersons, Physically Handicapped and Women etc. is a special reservation, which is horizontal reservation. Such reservation cut across all kind of vertical reservations. It is contended that if a candidate falling within the scope of horizontal reservation belongs to one or the other social reservation (vertical reservation), he will occupy the seat meant for social reservation if he is not able to fall within the open category seats. But a candidate entitled to horizontal reservation belonging to open category will take seat firstly in the open category as per his own merit and if not meritorious then against the seats meant for such reservation. It is, thus, contended that the candidate with Roll No.2484 has to be adjusted on his merit as open category candidate without benefit of horizontal reservation. Candidates, who are lower in merit than the open category candidates alone occupy the seats meant for reserved category candidates i.e. of Ex-servicemen in the present case. Learned counsel for the petitioner has placed reliance on the judgment of Division Bench of this Court in Neelam Rani Vs. State of Punjab and others (CWP No.12275 of 2000 decided on 08.01.2010) as well as on Single Bench judgment in Devender Singh's case (supra). Reference is also made to the Hon'ble Supreme Court judgment reported as Anil Kumar Gupta and others Vs. State of U.P. and others (1995) 5 SCC 173.
On the other hand, learned counsel for the respondents has argued that the protective discrimination contemplated under Article 16(4) of the Constitution of India is for the backward classes of citizens, which are not adequately represented in the services under the State and is vertical reservation. Reliance is placed upon Indra Sawhney Vs. Union of India AIR 1993 SC 477.
CWP No.18738 of 2009 5
The Hon'ble Supreme Court in Indra Sawhney's case (supra) has upheld the right of reservation of the State for the members of the Scheduled Castes, Scheduled Tribes and Backward Classes as part of Article 16(4). Further reservations for other categories other than Backward Classes can be provided for under Clause (1) Article 16 and that the state has to satisfy, if called upon, that making of such provision was necessary. The Court held to the following effect:
Whether Article 16(4) is exhaustive of the very concept of reservations?
59. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, -- and not for all and sundry reasons -- that any further reservations, of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be a correspondingly whittled down and that is not a reasonable thing to do.
Whether clause (1) of Article 16 does not permit any reservations?
60. For the reasons given in the preceding paragraphs, we must reject the argument that clause (1) of Article 16 permits only extending of preference, concessions and exemptions, but does not permit reservation of appointments/posts. As pointed out in para (54) the argument that no reservations can be made under Article 16(1) is really inspired by the opinion of Powell, J in Bakke (1978) 57 Law Ed. 2d 250. But in the very same paragraph we had pointed out that it is not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said contention. What kind of special provision should be made in favour of a particular class is a matter for the State to decide, having regard to the facts and circumstances of a given situation -- subject, of course, to the observations in the preceding paragraph.
CWP No.18738 of 2009 6In view of the arguments raised by the learned counsel for the parties, we find that question No.1 as framed by the learned Single Judge does not arise for consideration as it is admitted at the Bar that the reservation provided for Ex-serviceman is a special reservation falling within Article 16 (1) of the Constitution of India. In fact, such is the preposition of law enunciated by the Hon'ble Supreme Court in Indra Sawhney's case (supra). The Court held to the following effect:
"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. 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. 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."
The second question which arises is as to how the seats meant for horizontal reservation are to be filled up. In Indra Sawhney's case (supra), it has been held that the horizontal reservations cut across the vertical reservations. It has been held that the persons selected against horizontal reservation quota will be placed in the appropriate category; if he belongs to CWP No.18738 of 2009 7 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.
Article 14 of the Constitution of India prohibits the State to deny equality before the law or the equal protection of the laws. Article 15(1) ensures that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 16(1) ensures that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Thus, Article 14 ensures equality before the law and the equal protection of the laws in all spheres of activities of the State; Article 15(1) prohibits the discrimination on the basis of religion, race, caste, sex and place of birth; whereas Article 16(1) ensures equality in matters relating to employment or appointment. Sub-clause (3) of Article 15 permits the State to make any special provision for Women and children, whereas sub-clause (4) of Article 15 to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 16(4) enables the State to make provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
The judgment in Indra Sawhney's case (supra), came up for consideration before the Supreme Court in Swati Gupta Vs. State of U.P. (1995) 2 SCC 560. The question raised in the aforesaid case was in respect of seats reserved for the dependants of freedom fighters; sons/daughters of deceased/disabled soldiers; Physically Handicapped candidates; candidates belonging to hill areas; and candidates belonging to Uttaranchal areas. The CWP No.18738 of 2009 8 Court found that the candidates, who are selected on merit and happen to be part of the above categories, would be liable to be adjusted in general or reserved category depending on to which category they belong and that such reservation is not contrary to what was said by this Court in aforesaid case. The court observed to the following effect:
"3. Para 2 of the circular explains that candidates who are selected on merit and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category they belong, such reservation is not contrary to what was said by this Court in Indra Sawhney Vs. Union of India AIR 1993 SC 477. Whether the reservation for such persons should have been made or not was not challenged, therefore, this Court is not required to examine it."
In Anil Kumar Gupta's case (supra), the issue was in respect of reservation of seats for the candidates belonging to hill areas and Uttaranchal areas. It was held that such reservation is a horizontal reservation falling within the scope of Article 16(1) of the Constitution of India. The Court considered that the horizontal reservation can be compartmentalized or overall reservation. The compartmental reservations were explained to mean that such reservations are in each category of vertical reservations such as separately for SC/ST and Backward Classes and are not inter-transferable. The Bench explained the procedure for filling up the seats. The proper and correct course was to fill up open category quota on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; and 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 CWP No.18738 of 2009 9 against their respective social reservation categories by deleting the corresponding number of candidates there from. It was held to the following effect:
"18. 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 OC (merit) quota (followed by filling of OBC, SC and ST quotas). 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.) 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 OC quota."
In S. Sathyapriya Vs. State of A.P. (1996) 9 SCC 466 relying upon Indra Sawhney's case (supra), the Court held that the seats reserved under Article 15(1) [corresponding to Article 16(1)] should have to be spread across the social reservation categories. In other words, while the reservations made under Article 16(4) can be broadly described as vertical reservations, the reservation provided under Article 16(1) can be described as horizontal reservations. The students admitted against horizontal reservation will necessarily belong either to open competition category or to CWP No.18738 of 2009 10 the BC/MBC/SC/ST category. They have to be adjusted against their respective quotas prescribed under Article 16(4).
In Rajesh Kumar Daria's case (supra), the question arose in respect of horizontal reservation for women. It noticed the difference between vertical and horizontal reservation and pointed out that in case of vertical reservation, the candidates belonging to the Backward Classes 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 respective Backward Class. Thus, the entire reservation quota will be intact and available in addition to those selected under open competition category. But the said principle is not applicable to horizontal (special) reservations. It held to the following effect:
"9. .....Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus, women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women."
In Jitendra Kumar Singh and another Vs. State of Uttar Pradesh and others (2010) 3 SCC 119, the question considered was whether a candidate belonging to other Backward Classes, who has applied exercising his option as a reserved category candidate can also be considered against an unreserved vacancy if he/she secure more marks than the last candidate in the General category. In the aforesaid case, there was CWP No.18738 of 2009 11 relaxation in age and in respect of payment of fee in respect of candidates falling within the scope of Article 16(4) of the Constitution of India. It was, inter alia, held that relaxation in age does not in any manner upset the "level playing field". Such concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time, when the concessions are availed, the open competition has not commenced. The open competition commences when all the candidates who fulfill the eligibility conditions, namely, qualification, age, preliminary written test and physical test are permitted to sit in the main written examination. It was, thus, held that the reserved category candidates having availed relaxation of age are not disqualified to be adjusted against the open category seats. It was held to the following effect:
"75. In our opinion, the relaxation in age does not in any manner upset the 'level playing field'. It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once, the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible and participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition."
In Shiv Prasad Vs. Government of India (2008) 10 SCC 382, the question raised was implementation and enforcement of the Women's CWP No.18738 of 2009 12 reservation. Quoting from Indra Sawhney's case (supra), it was held to the following effect:
"27. In the amended notification, it was clarified that the reservations for the candidates belonging to other categories, such as, dependants of freedom fighters, sons/daughters of deceased/disabled soldiers, physically handicapped candidates, etc. would be "horizontal" and the candidates selected in those categories would be adjusted in the categories to which they belong i.e. either reserved category of Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Class (OBC) or Open Category (OC) in "vertical" reservation and it would not violate constitutional guarantee."
In Andhra Pradesh Public Service Commission Vs. Baloji Badhavath and others (2009) 5 SCC 1, the Hon'ble Supreme Court held that the reservation for women and handicapped etc. is on horizontal basis and such reserved category candidates have two options. If they are meritorious enough to compete with the open category candidates, they are recruited in that category. The candidates below them would be considered for appointment in reserved categories. The Court held to the following effect:
"43. One other aspect of the matter must be kept in mind. If category wise statement is prepared, as has been directed by the High Court, it may be detrimental to the interest of the meritorious candidates belonging to the reserved categories. The reserved category candidates have two options. If they are meritorious enough to compete with the open category candidates, they are recruited in that category. The candidates below them would be considered for appointment in the reserved categories. This is now a well settled principle of law as has been laid down by this Court in several decision. (See for example, Union of India Vs. Satya Prakash (2006) 4 SCC 550 paras 18 to 20; Ritesh R. Shah Vs. Dr. Y.L.Yamul (1996) 2 SCR 695, SCR at pp. 700-701 and Rajesh Kumar Daria Vs. Rajasthan Public Service Commission, (2007) 8 SCC 785, SCC para 9).
xxx xxx xxx
45. Reservation of women, handicapped, etc. is on a horizontal basis.
Reservation to the category of candidates has to be given irrespective of the class of category of candidates. A final selection has to be made. If CWP No.18738 of 2009 13 such a procedure, as directed by the High Court is to be taken recourse to, the same would give rise to a complexity."
A Division Bench of this Court in Neelam Rani's case (supra), considering the judgments in Rajesh Kumar Daria's case (supra), Baloji Badhavath's case (supra) and Kasambhai F. Ghanchi Vs. Chandubhai D. Rajput, AIR 1998 SC 815, held to the following effect:
"...A candidate who is meritorious is entitled to be appointed against the post without giving him advantage of reservation. It is only when he is not able to seek employment on merit, the question of reservation and appointment comes into play."
xxx xxx xxx "As per the judgments mentioned above, a combined merit list of all the candidates is required to be prepared. If on such merit, women candidate are not selected to the extent of posts reserved for them, only then women lower in merit will be selected and appointed to fill up the requisite posts meant for such women candidates. Such course alone will be an act of horizontal reservation and in accordance with the mandate of Articles 14 to 16 of the Constitution of India."
In view of the judgments referred to above, the following principles can be culled down:
(i) The reservations for Physically Handicapped, Ex-
servicemen, dependants of freedom fighters and women etc. are the horizontal reservations.
(ii) The candidates belonging to horizontal reservations will cut across the vertical reservations in the following manner:
(a) Firstly the seats for Open Category candidates will be filled up on the basis of merit;
(b) Secondly, the seats meant for vertical reserved categories will be filled up on the basis of merit in their own quota;
(c) Thirdly, the seats equal to the number of the candidates belonging to horizontal reserved category and also falling within vertical reserved category, shall stands consumed in the vertical reserved CWP No.18738 of 2009 14 category. The candidate lower in vertical reserved category will make way for him;
(d) Fourthly, if a candidate belonging to horizontal reserved category does not belong to any of categories of reservations, a candidate in the open category will make way for such reserved category so as to satisfy quota of the seats meant for the horizontal reserved category.
(e) Lastly, in case of women candidates, who also fall within any one of special reservations or social reservations, such candidate shall be taken into consideration for determining the quota for both women and social reservations.
It is admitted that one candidate of the Ex-servicemen category resigned after joining the service. Therefore, to settle equities and with a view to avoid any hardship to respondent No.3, we recommend that the petitioner be appointed against the post which has fallen vacant.
The question of law having been answered, the matter be placed before the learned Single Judge for decision in view of the opinion, referred to above.
(HEMANT GUPTA)
JUDGE
06.09.2011 (VIJENDER SINGH MALIK)
Vimal JUDGE