Rajasthan High Court - Jaipur
Kumari Sheela Phogawat vs State Of Raj & Ors on 15 July, 2011
Author: Mn. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.5689/2011 Kumari Sheela Phogawat Versus The State of Rajasthan & Ors. Date of Order : 15th July, 2011 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.R.N.Mathur, Sr. Adv. with Mr.Sanchit Tamra, for the petitioner. By the Court:
Learned counsel for the petitioner submits that a legal issue has been raised in this writ petition, thus facts are not required to be focused.
The issue pertains to special reservation to the female in general caste. The reservation to different categories are of two types. First is the vertical reservation and other is horizontal reservation. The vertical reservation is a social reservation provided to reserve caste like SC/ST, OBC etc. whereas horizontal reservations are called as reservation within reservation or special reservation like reservation to female, physically challenged person, ex-service man etc. The Hon'ble Apex Court while considering the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. reported in (2007) 8 SCC 785 extensively discussed the issue regarding vertical and horizontal reservation that too in regard to special reservation to the female. The same issue has recently been considered again by the Hon'ble Apex Court in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisth & Ors. reported in (2010) 12 SCC 204. In both judgments, a difference has been given out between horizontal and vertical reservation.
As per the principles laid down in those judgments, vertical reservation is considered to be social reservation and thereby a candidate getting his merit position with general candidate is not to be counted towards reservation. In other words, reserve caste candidates may compete for un-reserve post and if they are appointed against un-reserve post on their own merit then they are not counted towards reservation. Though the candidate may be belonging to reserve cast. The aforesaid principle is applicable in vertical reservation. In view of the aforesaid, shifting of candidate from one category to another i.e. from reserve to un-reserve is permissible. The Hon'ble Supreme Court, however, disapproved the application of the same principle while horizontal reservation is given.
Learned counsel for the petitioner submits that principles as laid down by the Hon'ble Apex Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. (Supra) are applicable if a female belongs to reserve caste and not to a general caste. If a female of general caste gets merit position qua other male members then she should not be counted in reservation toward female as such female candidate is getting appointment based on her own merit and that too comparative to the merit of other successful candidates in the main list. The respondents have not applied the aforesaid principle treating it to be horizontal reservation but without making difference between a female of reserve caste than a female of general caste. When the Hon'ble Apex Court in the case of Indra Sahni held that a meritorious candidate should not be counted towards reservation then petitioner being a female of general caste is entitled to the benefit of aforesaid ratio. Accordingly, prayer is made not to count female towards special reservation if they have competed qua others in order of merit of general candidates and if that principle is applied, the petitioner is entitled for the relief as prayed for in the writ petition.
I have considered the submissions made by learned counsel for the petitioner and scanned the matter carefully.
It has not been disputed by the learned counsel for the petitioner that there exists difference between vertical and horizontal reservation. The counsel is fair enough to refer two judgments of the Hon'ble Supreme Court where the aforesaid issue was considered extensively making out difference between vertical and horizontal reservation. The Hon'ble Apex Court in those cases considered the matters pertaining to female of reserve caste. If ratio is looked into, a difference has been made out between vertical and horizontal reservation. While vertical reservation is applied, a reserve caste candidate can claim appointment against un-reserve post, if he has secured high merit position to compete with the un-reserve caste members. The aforesaid analogy or principle has not been applied for horizontal reservation. Para 9 of the judgment in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. (supra) is quoted hereunder for ready reference:
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.] Perusal of the para quoted above clarifies as to what is the difference between horizontal and vertical reservation. The judgment referred to above provides complete assistance on the issue herein. In fact where special reservation is to a female or to a physically challenged person or to a ex-service man, it is considered to be horizontal reservation. The principle as applicable to the vertical reservation, cannot be applied in horizontal reservation. Even if a physically challenged person has obtained merit position qua a general caste candidate, he is still counted towards reservation because shifting of candidates from reserve to un-reserve is not permissible while providing horizontal reservation. If the arguments raised by the learned counsel for the petitioner is accepted then the same would be even discriminatory in nature, inasmuch as, a female candidate belonging to SC/ST and OBC would be deprived to get benefit as applicable to vertical reservation whereas a female belonging to general caste category would be entitled for the benefit as applicable to the vertical reservation and thereby, amongst female, there would be discrimination in treatment.
To clarify the aforesaid, a female belonging to SC category would not be entitled to seek benefit of reservation after ignoring those females getting merit position in the main list of the SC candidates. In fact, if three females are to be given reservation in SC category and while drawing the main list of the SC candidates, three females find place then it is considered to be in satisfaction of reservation to the female. However, if the arguments of the learned counsel for the petitioner is accepted then while drawing the list of general caste candidate, a female candidate getting merit in the main list, if not counted towards reservation then double standards are to be applied to the female itself only because of their caste. The aforesaid is not even possible rather it will remain discriminatory in nature and hit by Article 16 of the Constitution of India. When special reservations are considered to be horizontal reservation, all horizontal reservations are to be considered by one yardstick which has otherwise been clarified by the Hon'ble Apex Court in the case referred to above.
In the light of the aforesaid, I am not in agreement with the arguments raised by learned counsel for the petitioner that a female of general caste candidate, even if obtained merit position in the main list, is not to be counted towards reservation and even if sufficient females find place in the main list of general caste candidate, then also it should not to be taken in satisfaction to the reservation of the female.
In view of the aforesaid clarification and discussion made above, the issue raised by the learned counsel for the petitioner is decided and answered in negative. The writ petition is dismissed accordingly.
Since the writ petition itself has been dismissed, the stay application also stands dismissed.
(MN. BHANDARI),J.
Item NO.106 Preety/Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A