Madhya Pradesh High Court
Sachin Gupta vs The State Of Madhya Pradesh on 21 March, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 21 st OF MARCH, 2023
WRIT PETITION No. 21624 of 2017
BETWEEN:-
SACHIN GUPTA S/O SHRI SHAMBHOO DAYAL GUPTA,
AGED ABOUT 30 YEARS, OCCUPATION: BLOCK
DEVELOPMENT OFFICER, JANPAD PANCHAYAT REHLI,
DISTT. SAGAR (M.P.) VILL. AND POST ESHANAGAR,
DISTT. CHHATARPUR (M.P.) (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MAHENDRA PATERIYA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY PANCHAYAT AND RURAL
DEVELOPMENT MANTRALAYA VALLABH
BHAWAN BHOPAL (M.P.) (MADHYA PRADESH)
2. MP PUBLIC SERVICE COMMISSION RESIDENCY
AREA NEAR DALY COLLEGE (MADHYA PRADESH)
3. CHAIRMAN PUBLIC SERVICE COMMISSION,
IN D OR E RESIDENCY AREA INDORE, (MADHYA
PRADESH)
4. NAVMI DAS CHOUKIKAR JABALPUR (MADHYA
PRADESH)
5. RAMSEVAK MEENA CEO JANPAD PANCHAYAT
NIWARI (MADHYA PRADESH)
6. LALITA GARG ASSISTANT DIRECTOR FINANCE
MORENA (MADHYA PRADESH)
7. MINI AGRAWAL DISTRICT LABOUR OFFICER
Signature Not Verified
SAN
INDORE INDORE (MADHYA PRADESH)
Digitally signed by VAIBHAV YEOLEKAR
Date: 2023.03.23 18:10:18 IST .....RESPONDENTS
(SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE FOR
2
RESPONDENT NO. 1/STATE)
(SHRI NIKHIL BHATT - ADVOCATE FOR RESPONDENT NOS. 2 AND 3)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This writ petition is filed by the petitioner being aggrieved of decision of the respondent Public Service Commission in appointing private respondent no. 4 on the post of District Registrar under the Orthopedically handicapped category despite the fact that he belongs to Scheduled Caste category and, therefore, could not have been placed in the unreserved category list.
Petitioner's contention is that this post was meant to be reserved for a unreserved category candidate and, therefore, a person belonging to scheduled caste category could not have migrated to the unreserved Category list to occupy a seat meant for unreserved Category Orthopedically handicapped person.
Shri Nikhil Bhatt in his turn submits that petitioner had secured 810 marks whereas private respondent no. 4 Shri Choukikar had secured 826 marks, therefore, in terms of the judgment of the Supreme Court in Saurav Yadav and others Vs. State of U.P. and others (2021) 4 SCC 542 , a person belonging to a reserved category being more meritorious will find place in the unreserved category list and after migration of such more meritorious candidates, horizontal reservation is to be accorded and accordingly private respondent on the basis of his own merit could migrate to the unreserved category list, and was incidentally orthopedically handicapped was given appointment under the category of Scheduled Caste orthopedically Signature Not Verified SAN handicapped within the list of unreserved category.
Digitally signed by VAIBHAV YEOLEKAR Date: 2023.03.23 18:10:18 ISTTo demonstrate this, it is pointed out that Shri Premnandan Singh whose 3 name appears in the select list at serial no. 4 also belongs to Scheduled Tribe category and on the strength of his merit where he had secured 833.75 marks, he was permitted to migrate from reserved category to unreserved category.
Shri Mahendra Pateriya places reliance on the decision of the Division Bench of this Court in Chairman, Public Service Commission and another Vs. Dr. Sanjeev Khemariya and others decided on 12/01/2018 W.A. No. 420/2017 wherein the issue raised was that when a candidate opts to take a competitive examination not as a general category/unreserved category but as a reserved category candidate belonging to SC/ST/OBC, as the case may be, thus, competing amongst the candidates of his/her category, if obtained marks higher than obtained by the candidates of a general category can be permitted to include in the unreserved category, in other words, whether a candidate having opted to participate in a competitive examination as a reserved category candidate can be permitted to migrate to the unreserved category.
Answering this, the Hon'ble Division Bench refers to another Division Bench decision in W.A. No. 414/2017 Surendra Singh Yadav Vs. State of M.P. and others and W.A. No. 940/2017 Madhya Pradesh Public Service Commission Vs. Dr. Nabhi Kishore Choudhary and others wherein the Hon'ble Division Bench has upheld the view of the Single Judge that when a reservation is horizontal, then the candidate selected on the basis of reservation in any category has to be fixed in the said category and cannot be allowed to migrate to other category. The concept of migrating from one category to another on the basis of merit may hold good in vertical reservation but in Signature Not Verified horizontal reservation, the same is not applicable.
SAN Digitally signed by VAIBHAV YEOLEKARPlacing reliance on this judgment, it is submitted that a private respondent Date: 2023.03.23 18:10:18 IST could not have been allowed to migrate to the category of orthopedically 4 handicapped unreserved category candidate.
After hearing learned counsel for the parties and going through the record, when decision of the Supreme Court in Saurav Yadav (supra) is taken into consideration, it is held that vertical reservation is sanctioned by Article 16(4).
It is provided that in case of migration from reserved to open category, vacancy in reserved category is to be filled by another person from same category and where vacancies cannot be filled by specified categories due to shortfall of candidates, vacancies are to be carried forward or dealt with appropriately by rules. In the present case, admittedly the private respondent migrated to the unreserved category list by virtue of his merit, that was a vertical movement from Scheduled Caste category to unreserved category. Once, he was allowed to migrate on the strength of vertical reservation, then in the list of unreserved category candidates after having find place, the post was required to be filled as per the category because firstly vertical reservation is completed and then horizontal reservation is to be applied. Since, respondent no. 4 on the strength of vertical reservation migrated to the list of unreserved category and when horizontal reservation was applied, he was placed in the category of orthopedically handicapped, that cannot be said to be illegal or arbitrary.
Infact, the ratio of the judgment in W.A. No. 420/2017 only deals with horizontal reservation overlooking the aspect of vertical reservation whereas facts of the present case are that upon achieving the vertical reservation and its completion, candidates who found place in the list of unreserved category were Signature Not Verified SAN placed horizontally under the various categories for which horizontal reservation Digitally signed by VAIBHAV YEOLEKAR Date: 2023.03.23 18:10:18 IST is meant like woman, ex-armyman, differently abled persons etc. There is no 5 illegality in the impugned action of the respondents calling for interference especially in the light of the judgment of Supreme Court in Saurav Yadav (supra).
Before parting, it will not be inappropriate to point out that the law laid down by the Supreme Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others (2007) 8 SCC 785 also deals with the same aspect but by virtue of the authority vested in the Hon'ble Supreme Court had directed for creation of three additional posts instead of covering the excessive reservation for woman. That power being exercised under Article 142 of the Constitution which is not available to the High Court, parity cannot be drawn from the judgment in case of Rajesh Kumar Dariya (supra).
Accordingly, the petition fails and is dismissed.
(VIVEK AGARWAL) JUDGE vy Signature Not Verified SAN Digitally signed by VAIBHAV YEOLEKAR Date: 2023.03.23 18:10:18 IST