Rajasthan High Court - Jaipur
Dr Usha Yadav vs R P S C Ajmer And Ors on 26 November, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.18660/2012 (Dr.Usha Yadav Versus RPSC, Ajmer & Ors.) Date of Order :: 26th November, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.S.P.Sharma, Sr. Adv. with Mr.Gaurav Sharma, for the petitioner/s. By the Court:
By this writ petition, a challenge is made to the documents at Annex.7 and 8.
It is stated that for the post of Assistant Professor, selection was conducted by the respondent/s followed by declaration of result vide Annex.7. A candidate bearing roll No.400071 has been shown as selected against OBC (General) Category whereas she should have been shown in the open category looking to his higher merit position, which can be equated with the general category candidates. If said candidate is shifted from OBC to open category then the petitioner is the next candidate in OBC to get appointment. It is further stated that in all 39 posts were advertised, out of which, 22 posts were kept for open category and therein, six posts are for female. Eight posts are meant for OBC, out of which, two posts are for OBC (Female). In view of figures given above, the respondents were expected to draw merit list at Annex.8 whereby first 22 candidates should have been arranged strictly in order of merit for open category and if any candidate of reserve caste comes therein then not to be counted towards their social reservation. If the aforesaid exercise is applied, then also the petitioner gets chance of appointment by getting placement in the merit list instead of reserve list.
It is lastly contended that after the names of first 22 candidates, the name of Sindhu Sudha Gaur was wrongly placed at No.23 despite a general caste female candidate, who should not have been placed to occupy the seat meant for reserve category. Accordingly, if her name is also taken out, the petitioner gets chance of appointment.
I have considered the submissions made by learned counsel and perused the record.
Before dealing with the issues raised by the learned counsel for the petitioner, it would be necessary to clarify that two types of reservation exist. One is vertical reservation known as social reservation and other is horizontal reservation, which is special reservation. In the vertical reservation, if any reserve category candidate finds place in the list of the open category due to his/her high merit then he/she would not be counted towards reservation. In the present matter, Anil Kumar, a candidate of OBC, could find place in the open category due to higher merit position, he cannot be counted towards reservation meant for OBC candidate/s. The vertical reservation is provided for all the categories counted towards social reservation, which are SC/ST and OBC. As against the aforesaid, female reservation and other reservation, say, Ex-serviceman, disabled person/s, etc. are horizontal reservation. Therein, if any candidate finds place in merit, i.e., in the open category then also counted towards reservation. It is clarified by the Hon'ble Apex Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. reported in (2007) 8 SCC 785. Relevant para Nos.6 to 9 of the aforesaid judgment is quoted hereunder for ready reference :
6. 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 India1992 Supp (3) SCC 217, the principle of horizontal reservation reservation was explained thus: (SCC pp.735-36, para 812) 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 Article16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article16] 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 Article16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he 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.
7. A provision for women made under Article15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertial reservations, was explained by this Court in AnilKumarGupta v. State of U.P. (1995) 5 SCC 173 thus (SCC p.185, para 18).
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 per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)
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.
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 Article16(4)are vertical reservations. Special reservations in favour of physically handicapped, women, etc. under Articles16(1)or15(3)are horizontal reservations. Where a vertical reservation is made in favour of a Backward Class under Article16(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 respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, their number will not be counted against the quota reserved for 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 Indra Sawhney, R.K. Sabharwal v. State of Punjab Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul. 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 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. 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 the four SC woman candidates, then there is no need to disturb the list by including any further SC woman 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 woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that SC women have been selected in excess of the prescribed internal quota of four.) In view of judgment aforesaid, those who were entitled for the special reservation, like female, if find place in the merit list for open category and for their own category then to be counted towards their own reservation. If the principle aforesaid is applied then in the instant case, candidates at item Nos.10,11,15,16,17,20 and 21 are the female of backward class, though they have been placed in order of merit as per their marks but it is to be counted towards reservation meant for female backward class being horizontal reservation. If that is to be done, then two posts meant for backward class female gets satisfied towards their reservation. Now remains only six posts for the backward class, which is to be filled purely from that category, ignoring or leaving those who could find place in the first list of 22 candidates of open category though, it should of sixteen as six posts are for Female (General). Accordingly, name of Mr.Anil Kumar cannot be counted while drawing reservation list of backward class. There argument of learned counsel for petitioner is accepted. If the name of candidates after merit No.22 downwards is taken note of, there seven backward class candidates find place in the list at No.24, 25, 31, 32, 33, 36 and 39 as against six required. Therein, the candidates of both the gender exist and six posts meant for backward class are called as Backward Class (General). This is to identify difference between OBC (General) and OBC (Female). In the background aforesaid, six posts meant for OBC are also satisfied if name of the candidates are counted from No.22 downwards. Thereby, the petitioner has no room to get her name in the main list.
Learned counsel, however, pointed out that a candidate at No.23 needs to be ignored as she is general caste candidate.
Therein, also the argument is worth acceptance as she should not have been placed at No.23 but then it would be not to the benefit of the petitioner because six posts for Backward Class (General) and two for female OBC have already been satisfied if the list at Annex.8 is looked into. Accordingly, the petitioner, who is reserve caste candidate of backward class has not chance to get her name in the merit list even if name of candidate at No.23 is deleted because below her all SC/ST or backward class. In fact, shortfall is of a candidate of SC/ST Category and not of OBC if name of candidate at No.23 is deleted.
It is not stated that if name of candidate is deleted from No.23 then next candidate would be the petitioner, inasmuch as, after item No.22, only six posts has to be given to the backward class candidates because two posts meant for female backward class stand satisfied with the existence of female of backward class in the main list of open category. The petitioner cannot be accommodated beyond the size meant for OBC candidate otherwise, very principle for horizontal reservation is violated.
In the light of the discussion made above, I do not find any ground to accept the prayer of the learned counsel for the petitioner. In fact, even deletion of name of candidate at serial No.23 does not improve the position of the petitioner and the same is the position in the case of Anil Kumar because this Court has made calculation after considering case of Anil Kumar in the open category.
It is, no doubt true that grievance may be allowed at the instance of those reserve categories, who are short by one number due to placement of a candidate at item No.23, namely, Sindhu Sudha Gaur, which is to be given to the SC/ST candidate as their number of posts have not been filled but in any case, no room exists for OBC category.
In view of the discussion made above, the writ petition so as the stay application are dismissed.
(M.N. BHANDARI), J.
S/No.77 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.