Gujarat High Court
Alpesh Surendrasinh Rathod vs State Of Gujarat on 17 August, 2020
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/1246/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1246 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 9990 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1246 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copyNo
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
ALPESH SURENDRASINH RATHOD
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MEHUL SHARAD SHAH (773) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,2,3,4,5,6,7,8,9
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER ASSISTED
BY MR DM DEVNANI, AGP for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date :17/08/2020
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH) Page 1 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
1. The issue involved for consideration in this appeal is as to whether the respondents have correctly applied the horizontal reservation meant for the Ex-Servicemen in the 2018 recruitment process for the Gujarat Police Force, Class-III posts. The Lokrakshak Recruitment Board issued advertisement on 14.08.2018 inviting applications for 6189 posts (which was subsequently enhanced to 9713 posts) for selection of Unarmed Police Constables, Armed Police Constables and Jail Sepoy. As per the advertisement, 10% posts were reserved for Ex-servicemen as a special reservation to be applied horizontally. Accordingly, 971 posts were available for Ex- Servicemen category across the board i.e. all the categories of social reservation and open category.
2. The selection process was in two stages. First is a written examination and second is a physical efficiency test / physical standard test. The present appellants who are the original writ petitioners had qualified in the written examination and were therefore called for the physical efficiency test / physical standard test in which also they had qualified. In all, under the category of Ex-servicemen, 131 candidates had qualified in the written examination and after the physical efficiency test, 83 Page 2 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT had qualified. The present appellants fall in the list of these 83 candidates in the category of Ex-servicemen. However, when they were not being called for document verification and not being provided appointment, they approached the High Court by way of Special Civil Application No.9990 of 2019. The learned Single Judge by means of judgment and order dated 13.06.2019 dismissed the writ petition. Aggrieved by the same, the present appeal has been preferred.
3. We have heard Shri Mehul Sharad Shah, the learned counsel for the appellants and Ms. Manisha Lavkumar Shah, the learned Government Pleader assisted by Shri Dharmesh Devnani, the learned Assistant Government Pleader for the State respondents.
4. We first deal with the statutory provisions incorporating the reservation for Ex-Servicemen, the Recruitment Rules and other relevant provisions including the advertisement. The Gujarat Civil Services (Reservation of Vacancies for Ex- Servicemen in Class-III and Class-IV Posts and Service) Rules, 1975 (hereinafter referred to as "the 1975 Rules"), provide for the reservation for Ex-Servicemen. Since there is no issue that the writ petitioners - appellants are not Ex-Servicemen, we Page 3 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT need not go into the definitions clause. We straightaway come to Rule-3 which provides that this rule would apply to all the Gujarat Civil Services Class-III and Class-IV posts. Rule-4 provides for reservation of vacancies. Sub-rule (1) of Rule-4 provides for reservation over 10% of the vacancies in each of the cadre of Class-III and Class-IV posts. Sub-rule (2) of Rule-4 provides that there should be reservation for the candidates of Scheduled Castes and Scheduled Tribes also from the Ex- Servicemen. Rule-5 provides for special provisions regarding age limit. Rule-6 provides for special provisions regarding educational qualifications. Rule-6A provides for lowering of standards for selection of Ex-Servicemen. Rule-7 provides for amendment of Recruitment Rules, according to which, the said reservation rules would be applicable to all Recruitment Rules for recruitment of Class-III and Class-IV posts and services under the Government of Gujarat. There are no issues relating to relaxation of age limit and educational qualifications. However, the interpretation and understanding of Rule-4 and Rule-6A of the 1975 Rules would be relevant, as such, the same are reproduced below :
"4. Reservation of vacancies :
(1) Ten per cent of the vacancies in each of the categories of Class-III posts and of such posts in each Page 4 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT Class III service and Twenty percent of the vacancies in each of the categories of Class IV posts and of such posts in each Class IV service including permanent vacancies filled initially on a temporary basis and temporary vacancies which are likely to be made permanent and or are likely to continue for three months and more, to be filled in by direct recruitment in any year shall be reserved for being filled by ex-servicemen:
Provided the percentage of reservation so specified for ex-servicemen in a category of posts shall be increased or decreased, in any one recruitment year to the extent to which the total number of vacancies reserved for ex-servicemen, Scheduled Castes and Scheduled Tribes (including the carried forward reservations for Scheduled Castes and Scheduled Tribes) and for any other categories taken together, falls short or is in excess, as the case may be, of fifty per cent of the vacancies in that category of posts filled in that year :
Provided further that in case of an increase in the reservation for the ex-servicemen under the preceding proviso, the additional vacancies so made available for them shall be utilised first for the appointment of disabled ex-servicemen and if any such vacancies still remain unfilled thereafter the same shall then be made available to other ex-servicemen.
(2) Out of the vacancies reserved for being filled by ex-
servicemen, vacancies shall be reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes in accordance with orders as are issued in this behalf by the Central Government from time to time :
Provided that if any ex-serviceman belonging to a Scheduled Caste or Scheduled Tribe is selected, his selection shall be counted against the overall quota of reservations that shall be provided for the Scheduled Castes or Scheduled Tribes in accordance with the orders issued by the Government from time to time.
6A. Lower Standard for Selection :
In the case of direct recruitment if sufficient number of candidates belonging to the ex-servicemen is not Page 5 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT available on the basis of general standard to fill all the vacancies reserved for them, candidates belonging to the category of ex-servicemen may be selected under a relaxed standard of selection to make up the deficiency in the reserved quota subject to the condition that such relaxation will not affect the level of performance by such candidates."
5. Invoking the powers conferred under Section 5(b) of the Gujarat Police Act, 1951, Section 21 of the Gujarat State Reserve Police Force Act, 1951 and Section 59(1) of the Prisons Act, 1894, the Government of Gujarat in supersession of all the rules made earlier in that behalf, vide Notification dated 06.02.2016, notified the rules called as Police Constable, Class- III (Combined Competitive Examination) Rules, 2016 (hereinafter referred to as "the 2016 Rules"). It is these rules under which the recruitment is to be made by the Lok Rakshak Recruitment Board for the category of posts already referred to above. Rule 9 of the aforesaid Rules provides for the two stages and mode of examination. It provides for written examination as also physical efficiency test / physical standard test. Rule 9 is reproduced below :
"9. Stages and Mode of examination. -
(a) The examination shall be held in two successive stages in the following manner, namely:-
(i) Written Examination,
(ii) Physical Efficiency Test and Physical Standard Test.Page 6 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
(b) The Board shall, after receiving the applications from the candidates, scrutinize the applications in accordance with these rules and call the eligible candidates to appear in the written test.
(c) The candidates who have obtained the minimum qualifying marks in the written test, as determined by the Board, shall be called for Physical Efficiency Test and Physical Standard Test, to be held by the Board.
(d) The number of candidates called for Physical Efficiency Test and Physical Standard Test shall ordinarily be eight times the number of vacancies requisitioned.
(e) Physical Efficiency Test and Physical Standard Test shall be held for ascertaining the physical standard of candidates as specified in Appendix III.
(f) The candidate shall be given the marks on his performance in the Physical Efficiency Test and Physical Standard Test as specified in Appendix-III. Marks obtained shall be added to the marks obtained in Written Examination.
(g) The candidates who qualify in the Physical Efficiency Test and Physical Standard Test shall be called for document verification. The number of candidates called for document verification shall ordinarily be two times the number of vacancies requisitioned.
(h) A candidate who desires to have his marks of written test rechecked may apply to the Board along with such fees as may be determined by the Board within a period of 15 days from the date of declaration of result of the written test."
6. From the above, it is clear that the minimum qualifying marks in the written test is to be determined by the Board and only those candidates selected in the written examination are to be called for the physical efficiency test and physical Page 7 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT standard test. It also provides that the number of candidates called for the physical efficiency test and physical standard test would be ordinarily 8 times the number of vacancies requisitioned. The marks obtained in the written examination and the physical efficiency test / physical standard test are to be added as per the Appendix-III. Those who qualify in the physical efficiency test and physical standard test would be called for document verification. The number of the candidates called for document verification would be ordinarily twice the number of vacancies requisitioned. Rule 11 provides for the qualifying standard and marks. The qualifying standard is to be fixed by the Board and standard of physical test is also to be determined by the Board and if necessary it could be separate for reserved and unreserved categories. It is further provided that under no circumstances the minimum qualifying standard in the written test would be less than 40% of marks. Rule 11 is reproduced below :
"11. Qualifying Standard and marks. -
The qualifying standard for written test shall be determined by the Board from time to time, and standard for physical test shall be determined by the Board from time to time. If necessary separately for reserved and non-reserved categories of candidates. However, minimum qualifying standard determined by the Board shall not in any case be less than 40% of marks in the written test."Page 8 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
7. Rule 17 prescribes the procedure for preparation of select list and order of preference and Rule 18 prescribes for preparation of the select list. Both the said rules are reproduced below :
"17. Procedure for preparation of select list and order of preference. -
(1) The final result of all the candidates shall be arranged by the Board in the order of merit on the basis of aggregate marks finally awarded to each candidate in the Written Test, Physical Efficiency Test and Physical Standard Test and weightage of additional marks as specified in Appendix IV, specifying their names, seat numbers and total marks obtained by the candidates and the same shall be caused to be published on the notice board and /or on website and the copy of the result so published shall be sent to the Government in Home Department and to the Director General and the Inspector General of Police.
(2) The Board shall call the candidate individually as per their merit in the manner as may be decided by the Board.
(3) A candidate shall be required to give, at the time of document verification in his own handwriting, the order of preference for the posts as specified in Schedule I to which he desires to be considered for appointment, in the manner as may be prescribed by the Board:
Provided that the preferences once given by the candidate shall be treated as final and no request for revision, or change in the preference shall be entertained by the Board.
(4) The candidate who belongs to the reserved category and selected on his own merit but according to his choice, he does not get the concerned post if the post of concerned reserved category is available or, as the case may be, such candidate of reserved category, then such candidate shall be allocated to that post as the case may be. Such reserved post shall be treated as filled up post Page 9 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT against the reservation quota of such category.
(5) The Board shall in the first instance prepare the list for general category post and then prepare a list for reserved category post of Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes for the concerned department/Service or, as the case may be, for concerned district, to the extent of the number of vacancies requisitioned.
(6) Where a candidate has not given preference for any post, or the candidate has given preference only for a few posts and the number of posts for which he has given preference are not available to accommodate the candidate as per his preference, such candidate shall be considered for appointment to any of the remaining posts after the process of appointment to the other candidates, who have given their preference for all the posts specified in the Schedule I, is completed.
(7) The appointment of a candidate to a particular post shall be subject to the fulfillment of the provisions of recruitment rules as in force relating to that post.
(8) Where the candidate has been appointed to a particular post, no request shall be entertained by the competent authority for a change of appointment to another post.
18. Preparation of select list. -
(1) The Board shall prepare a select list in accordance with rule 17 for the concerned post, as the case may be, in the order of merit on the basis of aggregate marks finally awarded to each candidate to the extent of the number of vacancies requisitioned.
(2) The Board shall also prepare a list of successful candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes, Women, Disabled Persons and Ex-Servicemen for concerned post, for concerned department service or, as the case may be, for concerned district, to the extent of the number of vacancies reserved for such categories and requisitioned."Page 10 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
8. We now refer to the advertisement dated 14.08.2018. The advertisement which is in the vernacular language is filed as Annexure-B. It is in consonance to the Reservation Rules and the Recruitment Rules. There is no challenge to any of the clauses of the advertisement by the writ petitioners - appellants. Rather a reference had been made to Clause 10 which provides for 10% reservation for Ex-Servicemen (horizontally). It also provides for obtaining 40% marks in the written examination and also qualifying the physical efficiency test. The advertisement itself lays down the standard for the physical efficiency test which is also in consonance to the Recruitment Rules. So, with the above background of the reservation and the procedure prescribed for the selection, we now proceed to record the respective arguments advanced by the learned Counsels for the parties.
9. Shri Mehul Sharad Shah, the learned counsel for the appellants submitted that all the writ petitioners - appellants had obtained 40% or more marks which were the qualifying marks in the written examination. Since the number of Ex-Servicemen applicants who had qualified in the written examination was less than the total number of vacancies in their category, only 131 as against 971 vacancies, all were Page 11 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT called for the physical efficiency test/ physical standard test. As per the minimum standard fixed for the physical efficiency test/physical standard test, according to the rules and the advertisement, out of 131 candidates, only 83 qualified and the above 18 appellants are included in the list of 83 Ex-Servicemen category candidates who had qualified in the written examination as well as the physical efficiency test and the physical standard test. The above fact is not disputed by the State in its counter affidavit nor during the course of arguments.
10. The grievance of the appellants is that at the time of preparing the final selection list, the Board started treating the appellants to be at par with the last selected candidate in the vertical reservation category of unreserved candidates as also the reserved category candidates. The respondent Board started fixing cut off marks for the Ex-Servicemen at the time of document verification.
11. It is also stated by the appellants' counsel on the basis of the averments made in the writ petition that out of 83, only 36 candidates from the Ex-Servicemen category were called for document verification and the remaining 47 have not been called. Page 12 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
12. The submission advanced by Shri Mehul Sharad Shah, the learned counsel for the appellants is that the 83 candidates of the Ex-Servicemen category who had qualified in the written examination as also the physical efficiency test and their number being much less than the number of posts available in that category, there was no justification for fixing any further cut off marks for them at the stage of document verification.
13. According to him, as per the relevant Rules, both 1975 and 2016, the appellants along with all other remaining candidates (total 83) ought to have been called for document verification and upon successful verification of the documents they should have been provided appointment.
14. Shri Shah submitted that once the Recruitment Board following the relevant rules had fixed the cut off marks in the written examination and the appellants having qualified in the written examination as also the physical efficiency test and the physical standard test, there could be no justification for excluding them or comparing their merit with the candidates of the unreserved and vertical reservation categories. Page 13 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
15. In support of his submissions, Shri Mehul Sharad Shah, the learned counsel for the appellants has placed reliance upon the following three judgments.
(i) Anil Kumar Gupta and others vs. State of U.P. and others, reported in (1995) 5 SCC 173.
(ii) P. V. Indiresan vs. Union of India and others, reported in (2011) 8 SCC 441.
(iii) Digvijaysinh Mahendrasinh Chavda and others vs. State of Gujarat, reported in 2015 (0) AIJEL-HC 232718.
16. On the other hand, the learned Government Pleader Ms. Manisha Lavkumar Shah vehemently submitted that there is no illegality on the part of the Recruitment Board. The Recruitment Board has strictly followed both the rules, the 1975 Rules for reservation and the 2016 Rules for recruitment. According to her, the learned Single Judge has rightly dismissed the petition and therefore, the present appeal also deserves to be dismissed.
17. Ms. Shah further submitted that the relaxation standards as were permissible in law have already been provided at various stages and therefore the present appellants having not fallen within the merit after twice relaxation of 10% was extended, cannot claim any further relaxation, as the same would be contrary to the Rules in particular Rule-6A of the 1975 Rules. Page 14 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
18. According to Ms. Shah, the general standard to fill all the vacancies would be the minimum cut off marks available in the general / unreserved category or any other category of vertical reservation and if the present appellants could not meet the said standard, even after extending the relaxation as provided under Rule 6A, they could not be adjusted as it would adversely affect the level of performance and such lowering of standards would fall exclusively and only in the domain of the Recruitment Board.
19. Ms. Shah further submits that as per the averments contained in the counter affidavit (referring to paragraphs-13, 14 and 15), as per the cut off marks in respective categories, only 1 candidate from the Ex-Servicemen category could qualify in the General category and 2 candidates could qualify in the Socially and Educationally Backward Class (SEBC) category. It was therefore that the cut off marks were relaxed by 10% under Rule 6A of the 1975 Rules which allowed 12 Ex- servicemen to be included in the select list i.e. 4 in General, 1 in Scheduled Caste and 7 in SEBC category. The Recruitment Board thereafter gave another second relaxation of 10% which extended further benefit and brought the figure to 36 i.e. 24 more candidates were included with a total of 16 in General Page 15 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT category, 3 in Scheduled Caste, 3 in Scheduled Tribe and 14 in SEBC.
20. The Board thereafter decided not to further lower the standard as it would adversely affect the level of performance.
21. She further submitted that this Court cannot under Article 226 of the Constitution assess as to whether further lowering of cut off marks would adversely affect the level of performance or not. We have no hesitation in accepting the last statement of the learned Government Pleader that this Court may not go into the question of any further lowering of cut off marks, but at the same time, this Court can always examine as to whether the selection procedure has been carried out strictly in accordance to the Recruitment Rules and whether the Recruitment Board has correctly interpreted the Reservation Rules or not.
22. Ms. Shah, the learned Government Pleader further submitted that even at the time of the written examination, the Recruitment Board had lowered the qualifying marks for the Ex-Servicemen class. For the said purpose, she has referred to paragraph-9 of the counter affidavit. In all 6,59,001 Page 16 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT candidates appeared in the written examination. Since 8 times the number of vacancies, were to be called for the physical efficiency test, approximately 76000 candidates were to be called. In the General category, Scheduled Caste, Scheduled Tribe, SEBC, apparently there were more number of candidates than 8 times who had scored 40 or more marks in the written examination. However, in all the four reserved categories of vertical reservation in the Ex-Servicemen category, there were much less number than the posts reserved for them.
23. As per the chart provided in paragraph-9 of the counter affidavit, 28,728 candidates were called for the physical efficiency test in the General male category with the minimum cut off marks at 65. Similarly, for General female category, 12,703 candidates were called for physical efficiency test with cut off marks at 47. In the Scheduled Caste male category, 3,466 candidates were called with cut off marks at 58.25 and for the Scheduled Caste female category, it was 41 marks for 1733 candidates. For Scheduled Tribe male category, 8,190 candidates were called with cut off marks at 46.25, whereas in the female Scheduled Tribe category, only 1,857 candidates with 40% cut off marks were called. In the SEBC male category, 13,840 candidates with cut off of 58.75 marks and Page 17 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT for the female SEBC 5,364 candidates with cut off of 40 marks were called. However, for the Ex-Servicemen in all four categories, 40% marks were the minimum provided under the Rules and as per the advertisement, only 131 candidates qualified.
24. Similarly, in the physical efficiency test, the minimum standard was prescribed under the 2016 Rules as per the Appendix and the same was also spelled out in the advertisement. The Appendix contains certain relaxation for certain categories including Ex-Servicemen which has been extended to them. Out of these 131 candidates, only 83 had qualified and the rest had disqualified.
25. Ms. Shah thus submitted that sufficient and adequate relaxations had been provided to the category of Ex-Servicemen in the initial two stages. According to her, the Recruitment Board was much liberal in extending further relaxation of lowering of marks by 10% twice at the stage of document verification.
26. After referring to the above factual position, Ms. Shah, the learned Government Pleader placed reliance on the Page 18 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT following three judgments in support of her submissions:-
(i) Andhra Pradesh Public Service Commission vs. Balaji Badhavath and others, reported in (2009) 5 SCC 1.
(ii) Union of India and others vs. M. Selvakumar and another, reported in (2017) 3 SCC 504.
(iii) Judgment of this Court in the case of Prajapati Ishwarbhai Joitaram and others vs. State of Gujarat and others, being Letters Patent Appeal No.1350 of 2012, rendered on 20.03.2013.
27. Before dealing with the respective arguments of the learned counsels for the parties, we may briefly refer to the concept and the law as developed with respect to horizontal reservation.
28. Article 16 says that all citizens shall be equal in matters relating to employment or appointment to any office under the State. In Indra Sawhney vs. Union of India reported in 1992 Supp (3) SCC 217 (reference paragraph no.'733'), Justice B.P. Jeevan Reddy speaking for the majority of Judges has clarified that Article 16(1) is a facet of Article 14. Just as Article 14 permits reasonable classification, so does Article 16(1). A classification may involve reservation of seats. The argument that clause (1) of Article 16 permits only extending of preferences, concessions and exemptions, but does not Page 19 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT permit reservation of appointments/posts has not been accepted. The question whether clause (1) of Article 16 permits any reservation has been answered in the negative and it was observed:
"741. ...............Article 16(1) being a facet of the doctrine of equality enshrined in Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion, the view taken by the majority in Thomas is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality............
745. 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.......".
29. The observations in paragraph no.812 of Indra Sawhney (supra) are relevant for our purposes and are extracted herein below:-
"812 .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 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)] Page 20 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT 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 that 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."
30. Thus, it is evident that the reservation in favour of the physically handicapped, dependents of freedom fighters and Ex-servicemen is relatable to Article 16 (1) and can be referred to as horizontal reservation. Such reservation has been granted on the principle of reasonable classification embraced in Article 16(1) for ensuring attainment of the equality of opportunity assured by it. It is just the same as Article 14 which permits reasonable classification on the doctrine of equality enshrined in it.
31. As has been held in Indra Sawhney (supra) noted above, the persons selected against the quota of physically handicapped, dependents of freedom fighters and Page 21 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT Ex-servicemen are to be placed in the appropriate category to which they belong by making necessary adjustment so that the rule of 50% (percentage of reservation) is adhered to. The horizontal reservation, thus, cuts across the vertical reservation.
32. In Anil Kumar Gupta and others vs. State of U.P. and others reported in 1995 SCC (5) 173, Supreme Court explained the procedure to be adopted regarding the vertical reservation and horizontal reservations in following terms:
"The proper and correct course is to first fill up the O.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...."
33. In Sunaina Tripathi vs. State of U.P. reported in 2012 (3) ADJ 463, the issue which came up before the Court was "whether horizontal reservation for women provided under the Government Order dated 26th February 1999 is restricted to each of the categories or is general in nature". The Court Page 22 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT placing reliance upon Indira Sawhney vs. Union of India 1992 Supp (3) SCC 217, Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others reported in 2007 (8) SCC 785, Anil Kumar Gupta (supra) culled out the following principles:
(i) vertical reservations cannot exceed 50% in an year;
(ii) provision of reservation made for women (dependents of freedom fighter and ex-servicemen) is horizontal reservation;
(iii) the proper and correct course is to fill up the general (open) category quota on the basis of merit and then fill up each of the reserved category quotas of the Scheduled Castes, Scheduled Tribes, Other Backward Class, and thereafter, find out how many candidates belonging to the special reservations/horizontal reservations have been selected on the above basis. If the quota fixed for horizontal reservation is already satisfied, in case it is an overall horizontal reservation, no further question arises and if it is not satisfied, the requisite number of the special reservation candidates under the horizontal reservation have to be taken and adjusted/accommodated against their respective categories by deleting the corresponding number of candidates therefrom.
34. The Supreme Court in Public Service Commission, Uttaranchal vs. Mamta Bistand others reported in AIR 2010 SC 2613, observed that the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of the reserved category candidates. The Court placing reliance on Page 23 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT the observations made in the case of Rajesh Kumar Daria (supra) repelled the contention:
"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 the}' 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 v. State of Punjab, 1995 (2) SCC 745), Union of India v. Virpal Singh Chauvan, 1995 (6) SCC 684 and Ritesh R. Sah v. 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 Page 24 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT quota will be counted against the horizontal reservation for women."
35. Article 16(4) contemplates vertical (social) reservation for SC/ST/OBC, which cannot exceed 50% of the total vacancies. These reservations are not communal reservation, therefore, candidates belonging to the SC/ST/OBC may compete for non- reserved/open category (OC) post and if they get selected on the OC post on merit, their numbers will not be counted against the reserved quota for the respective social class. The entire reservation quota shall remain intact and be available in addition to those selected under OC.
36. The principle applicable to horizontal (special) reservation is different and distinct from the principle applicable to vertical reservation. The special reservation provided to women, Ex-servicemen etc., under Articles 15(3) and 16(1) is horizontal reservation. Horizontal reservation cuts across the vertical reservation, otherwise, it will be vertical reservation breaching the 50% bench mark, which is prohibited. The horizontal reservation is provided to the special class of persons i.e. Ex- servicemen/dependents of freedom fighters irrespective of their social class SC/ST/OBC. Such persons on being selected in the OC or in SC/ST/OBC quota will necessarily be counted Page 25 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT against the vacancy reserved for them on horizontal basis irrespective of the social category to which they belong for the reason that the persons belonging to special class may constitute a class in themselves, but as a class they do not enjoy the benefit of vertical reservation. They have not been classified as backward class. They would, therefore, have to be adjusted in the social category to which they belong after making necessary adjustment. For instance, 10 posts of Ex- servicemen are to be filled up on horizontal reservation basis and if that many number of Ex-servicemen are included in the merit list of selected candidates prepared vertically i.e. OC/SC/ ST/OBC, then nothing further is required to be done. But against 10 Ex-servicemen only 5 could make it to the merit list, then in that event 5 Ex-servicemen, if available, will have to be adjusted in the respective social category i.e. OC/OBC/ST/ST to which they belong by replacing the last male candidate from that category. If the suitable Ex-servicemen are not available then as per the impugned rule, the vacancy is to be carried forward.
37. It is, thus, evident that the concept of vertical and horizontal reservation is based on different and distinct principle in application. The candidates seeking reservation on Page 26 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT horizontal basis are to be adjusted against their respective social categories to which they belong and the principle of adjustment is by replacing the last candidate from the merit list of that category.
38. In the present case, 9713 posts were advertised, out of which, 10% were reserved for Ex-Servicemen as a special reservation to be treated as horizontal reservation. The selection process was in two stages, first written test and then, physical efficiency test (PET)/physical standard test (PST) and thereafter from among those who qualify in the second stage, list would be prepared as per the rules and depending upon number of candidates having been successful in the PET/PST. If the number of candidates in different categories were found to be less than the vacancies advertised, they will all be entitled to be called for document verification as per Rule 9(g) of the 2016 Rules. However, if there were more number of candidates who had qualified in PET/PST, then twice the number of vacancies would be called as per Rule 9(g) of the 2016 Rules and then their comparative merit would be prepared and more meritorious candidates would be placed in the final selection list and accordingly given appointment.
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39. The horizontal reservation cuts across vertical reservation, meaning that those selected in the category of horizontal reservation would be fitted in their respective categories of vertical reservation and the unreserved category. If the number of vacancies of horizontal reservation were filled up by candidates competing in the general merit of different categories, there would be no question of any further horizontal reservation being provided. However, if in the general merit of different categories, there was no representation of horizontal reservation category, then, those selected in the horizontal category would replace the general candidates of the respective category. In the present case, there were 971 posts reserved for Ex-Servicemen. In the written test, 131 candidates had qualified and after PET/PST, only 83 candidates had qualified which was less than 10% of the number of vacancies reserved for them. It would be worthwhile to mention that in none of the categories of vertical reservation, there were not enough candidates representing the horizontal reservation category of Ex-servicemen. Even those 131 candidates who had been selected also did not exceed any of the categories of their reserved seats in each of the vertical reservation category.
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40. It is the action of the Recruitment Board at the time of document verification that has given rise to the present petition. At the time of physical verification of documents, the candidates who had qualified in PET/PST in different categories were to be called for physical verification of documents in such numbers as prescribed under the Rules. The Recruitment Board has fixed cut off marks for unreserved category and other reserved categories where there were more candidates than the number of vacancies. This is a fair and reasonable approach taken by the Recruitment Board. In fact, it would be the only mode for the Recruitment Board to proceed where number of candidates who had qualified in PET/PST were more than number of vacancies in different categories. But where there were less number of candidates than the vacancies available, there would be no question of fixing any cut off marks at the stage of physical verification of documents. But surprisingly, the Recruitment Board even for the categories where there were lesser number of candidates than the posts available for that category, has fixed cut off marks equivalent to the unreserved category of male and female and all reserved categories under the vertical reservation. This meant that the candidates falling under the horizontal reservation were to compete or perform better than those selected Page 29 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT candidates in vertical category. This is where the petitioners were aggrieved and have approached this Court. This arbitrariness is because of the instructions issued by the Recruitment Board dated 03.05.2019.
41. We shall now look into the instructions issued by the respondent No.2 - Board dated 3rd May 2019 with respect to the verification of the documents. The relevant portion reads thus:
"(1) The Physical Efficiency Test will be conducted from 26th February 2019 to 8th March 2019 and the result will be declared on 19th March 2019.
(2) It has been decided that about 1.5 (One and half) of candidates of the category wise vacant posts will be called for the document verification from the candidates qualified in the Physical efficiency Test on the basis of the merit of total marks obtained from (1) total marks of written examination, (2) Additional marks (sports, NCC "C" Certificate, Raksha Shakti University and widow) and (3) the marks of Physical Efficiency Test. The category wise cut-off marks of the total marks is as follow. (Cut-off marks means the total marks obtained by the last candidate of the respective categories):
Category Male Candidates Female Ex-serviceman Candidates Cut- number of Cut- number of Cut- number of off candidates off candidates off candidates marks Page 30 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT marks marks GENERAL 88.25 5427 70.50 2381 70.60 16 SC 81.75 646 62.75 332 65.40 3 ST 71.00 1502 59.50 696 56.80 3 SEBC 84.50 2625 64.50 1246 67.60 14 TOTAL -- 10200 -- 4655 -- 36 (3) In case of Ex-serviceman candidates, the cut-off has been decided after reducing 20% of the cut-off from the respective category."
42. This litigation could have been easily avoided by the State Government, but for its erroneous interpretation of Rule 6A of the 1975 Rules not following the procedure prescribed in the 2016 Rules in particular Rules 9, 17 and 18 thereof referred to above and also the incorrect application of the principle of horizontal reservation to a special class of candidates.
43. It is necessary to understand what exactly the respondent did at the time of finalizing the recruitment. It is not in dispute that 10% posts were kept reserved for the Ex-servicemen. It is also not in dispute that in all, 9713 posts of Page 31 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT Armed and Unarmed Police Constables and Jail Sepoy were to be filled up and with 10% reservation for the Ex-servicemen, 971 posts were reserved for the Ex-servicemen. The advertisement made it very clear that all the candidates, who would secure minimum 40% marks in the written examination, would be given a chance to appear for the Physical Efficiency Test / Physical Standard Test. 10 marks were fixed as the minimum qualifying marks to be secured in the physical examinations.
44. The most important aspect of this matter is that the appellants qualified for both, written examination as well as the physical examination as against the total reserved posts of 971 posts. The Rule 9 of the 2016 Rules, more particularly, Rule 9(g) makes it clear that all those candidates, who would qualify in the Physical Efficiency Test and Physical Standard Test would be called for the document verification. The number of candidates to be called for the purpose of document verification would oridinarily be two times the number of vacancies requisitioned. Rule 11 of the 2016 Rules further makes it clear that a qualifying standard for the written test would be determined by the Board and the standard for the physical test would also be determined by the Board. It further Page 32 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT provides that if required, the qualifying standard for the reserved and non-reserved category of candidates may be separately provided. Rule 11 clarifies that in any event, the minimum qualifying standard determined by the Board may not be less than 10% of the marks in the written test.
45. When the time came to call the appellants for the verification of their documents, the Board introduced the concept of qualifying marks. Clause 10 of the advertisement provides that relaxation may be given to the Ex-servicemen if sufficient number of candidates are unable to obtain the minimum qualifying marks. It is suggestive of the fact that the relaxation, which was intended to be given as per the condition of the recruitment was in context with the minimum qualifying marks i.e. 40% as referred to above and not the qualifying marks, that may be fixed by the Board for other category of the candidates for the purpose of preparing the final select list on merit. Clause 10 in the advertisement has been provided with a purpose and with definite intention. The intention is to provide employment to the Ex-servicemen and to call for as many candidates as possible from the category of Ex-servicemen against the reserved posts. In this context, the decision of the Supreme Court referred to above in the case of Page 33 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT P.V. Indresan and others (supra) assumes significance. The respondents faltered at this stage. The respondents relied upon Rule 6A for the purpose of providing qualifying marks applicable even to the Ex-servicemen. We have already quoted Rule 6A of the 1975 Rules above. It is stated therein that in the case of direct recruitment, if sufficient number of candidates belonging to the category of Ex-servicemen are not available on the basis of general standard to fill all the vacancies reserved for them, the candidates belonging to the category of Ex-servicemen may be selected under a relaxed standard of selection to make up the deficiency in the reserved quota subject to the condition that such relaxation should not affect the level of performance of such candidates. This Rule 6A rather is apparently making a provision for selecting Ex-servicemen under the relaxed standard to make up the deficiency. This Rule 6A cannot be read to nullify the appointment of the reserved category of Ex-servicemen. If the stand of the respondents is accepted, the very purpose of horizontal reservation would stand frustrated. It is settled law that the horizontal reservation has to be provided by cutting across amongst the vertical reservation and if a candidate having a right of selection under any of the horizontal reservation categories, secures lesser marks than the last Page 34 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT candidate in the vertical reservations category, the candidate from horizontal reservation shall be pulled up for filling up the last seat in that category of vertical reservation. The benefit of horizontal reservation could not have been denied to the appellants herein merely because the last candidate in the select list was higher in merit even after providing 20% relaxation to the Ex-servicemen. The provisions of Article 335 of the Constitution shall not be attracted for filling the seats amongst the reservationists of the horizontal category vis-a-vis the vertical category.
46. It is also very vociferously argued before us on behalf of the respondents that after prescribing the qualifying marks for the candidates of the general category, 20% relaxation was given to the appellants herein being the Ex-servicemen. Despite such relaxation, the appellants could not make it in the final select list. It has also been very vociferously argued that the respondents are within their rights to prescribe the qualifying marks even at the stage of preparing the final select list although there may not be any reference of such qualifying marks in the advertisement and the appellants being unable to fulfill that criteria have rightly not been included in the final select list. We do not agree with such stand of the respondents. Page 35 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT
47. The 2016 Rules provide for the procedure for preparation of the select list, order of preference as also the preparation of the select list. Rule 17 provides for the procedure and Rule 18 provides for the preparation of select list. Rule 18(2) requires the Board to prepare list of successful candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes, Women, disabled persons and Ex-servicemen for the concerned post, for concerned department service as the case may be to the extent of the number of vacancies reserved for such categories and requisitioned. The list prepared is of the successful candidates. The successful candidate here would clearly mean who has qualified in the written test and has also passed in the physical efficiency test / physical standard test. This flows from Rule 11 of the 2016 Rules which deals with qualifying standard and marks. The candidate who has successfully qualified in the written test and has also qualified the standard for the physical test as may be determined by the Board and as prescribed in the Rules, would be entitled to be included in the preparation of the merit list. If the candidates who are successful are more than the number of vacancies reserved then depending upon the number of vacancies, the candidates having higher merit Page 36 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT would be selected. In the category of Ex-servicemen, total 83 candidates qualified in the written test and the physical standard test as against 971 vacancies reserved for them. There was no question of preparing any further qualifying marks. It would only be the merit of these 83 candidates which would determine their inter-se seniority in their respective category and nothing more than that was required. Determination of qualifying marks at this stage for the category of Ex-servicemen considering the number of candidates who had been successful in the written test and the physical standard test, would be doing violence to Rule 9(g) as also Rules 11, 17 and 18 of the 2016 Rules.
48. It may also be worthwhile to mention that the selection was for the post of Armed and Unarmed Police Constable and Jail Sepoy for which a written test was to be held and also a physical efficiency test. There was no provision under the Rules for any other further testing or level of examination in the process of selection. Only 2 stages of examination were provided. There was no interview provided. After being successful in the physical test, the next stage was only of document verification. In the absence of any other further stage of testing having been laid down, any further step taken by the Recruitment Board in eliminating the Page 37 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT reserved category candidates of Ex-servicemen who had been successful as per the Rules would be violative of Articles 14 and 16 of the Constitution.
49. The strong reliance placed on the Division Bench decision of this High Court in the case of Prajapati Ishwarbhai Joitaram (supra) is also completely misplaced. In Prajapati Ishwarbhai Joitaram (supra), the principal contention on behalf of the appellants was that the cut-off marks for the purpose of inclusion in the select list or waiting list ought to have been fixed by the respondents at the time when the examinations were held and it was not open for the respondents to fix the cut-off marks at a later stage. It was also argued that even if the cut-off marks could have been fixed by the respondents for the respective category of the candidates in the case of horizontal reservation for Ex-servicemen, in order to accommodate all Ex-servicemen upto the post advertised, it was necessary for the respondents to go below the cut-off marks and offer employment for the purpose of selection. The facts of this case are altogether different. One distinguishing feature is that in the said case, the cut-off marks were fixed for the purpose of calling the candidates for oral interview. In Prajapati (supra), the Division Bench of this Page 38 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT Court observed two things. Firstly, that the cut-off marks although may not have been provided at the inception, yet at a later stage also, it is open for the recruitment authority to prescribe the qualifying marks, and secondly, even for the purpose of giving effect to the horizontal reservation, the minimum qualifying criteria or the standard provided by way of cut-off marks or otherwise should be met with. The Court observed that for the purpose of competing any candidate of the horizontal reservation with less merit than the minimum merit list should not be accepted. We may not enter into any debate with regard to the propositions of law as explained by the Coordinate Bench of this Court. However, distinguishing Prajapati (supra) with the case on hand, we may only observe that the minimum qualifying criteria was 40% for the purpose of written examination and 10% for the Physical Efficiency Test and both the minimum criteria has been fulfilled by the appellants. Having fulfilled the same, for the purpose of preparing a final select list, the respondents could not have asked the appellants to fulfill the criteria of minimum qualifying marks i.e. to compete with the last candidate in the final merit list. We are saying so because Rule 6A of the 1975 Rules has been misinterpreted in the present case by the respondents.
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50. The decision of the Supreme Court in the case of M. Selvakumar (supra), as relied upon by the respondents, is of no assistance. In this case, the appeals were filed in the Supreme Court challenging the judgment of the Madras High Court and the Delhi High Court respectively allowing the writ petition filed by the physically handicapped candidates belonging to the Other Backward Classes (OBC) claiming that they were entitled to avail 10 attempts instead of 7 attempts in the Civil Services Examination. The challenge before the Supreme Court was on the ground that since the attempts for the physical handicapped candidates belonging to the general category had been increased from 4 to 7 with effect from 2007 Civil Services Examination, there ought to have been a proportionate increase in the attempts to be taken by the physical handicapped candidates belonging to the OBC category. Having regard to the issue involved, the Supreme Court in paras 47 and 48 observed thus:
"47. There is one more reason due to which we are unable to subscribe to the view taken by the Madras High Court and Delhi High Court. The horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination, is a matter of Governmental policy and the Government after considering the relevant materials have extended relaxation and concessions to the Physically Handicapped Page 40 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT candidates belonging to the Reserved Category as well as General Category. It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 of the Constitution.
48. This court in NTR University of Health Sciences, Vijaywada versus G. Babu Rajendra Prasad and Another (2003) 5 SCC 350 has held that how and in what manner reservation is granted, should be made a policy matter of decision for State. Such a policy decision normally would not be challenged. Following has been stated in Para 13 of the said judgment:
"Article 15 and 16 of the Constitution of India provide for enabling provisions. By reason thereof the State would be entitled to either adopt a policy decision or make laws providing for reservations. How and in what manner the reservations should be made is a matter of policy decision of the State. Such a policy decision normally would not be open to challenge subject to its passing the test of reasonableness as also the requirements of the Presidential Order made in terms of Article 371-D of the Constitution of India.""
51. Thus, by relying upon the aforesaid decision of the Supreme Court, it is sought to be argued that how and in what manner the reservation should be provided being a policy matter, is for the State to decide. It is not in the domain of the Courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. It is sought to be argued that if the respondents took a decision to ask the Ex-servicemen to Page 41 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT secure minimum qualifying marks, as prescribed after 20% relaxation for the purpose of inclusion in the final select list, then there was nothing wrong in such policy matter decision.
52. Well, we may only say that in what manner the reservation should be given no doubt is a policy decision, but that does not mean that if wrong principles of law are made applicable for the purpose of providing reservation under Articles 16(1) and 16(4) respectively of the Constitution of India, then the writ Court should not entertain the petition. We have explained in details the incorrect method adopted by the respondents in the case on hand, contrary to the statutory Rules framed for the purpose.
53. The decision of the Supreme Court in the case of Andhra Pradesh Public Service Commission (supra), as relied upon on behalf of the respondents, is also of no assistance. The observations made in paras 29, 32 and 44, upon which reliance is placed, read thus:
"29. Indisputably, the preliminary examination is not a part of the main examination. The merit of the candidate is not judged thereby. Only an eligibility criterion is fixed. The papers for holding the examination comprise of General Studies and Mental Ability. Such a test must be held to be necessary for the purpose of judging the basic eligibility of the candidates to hold the tests. How and in what manner the State as also the Commission would Page 42 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT comply with the constitutional requirements of Article 335 of the Constitution of India should ordinarily not be allowed to be questioned."
"32. Judging of merit may be at several tiers. It may undergo several filtrations. Ultimately, the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, times without number, to select candidates and/ or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor."
"44. As we have entered into the merit of the matter, in our opinion, it is not necessary to determine the question as to whether the writ petitioners - respondents having appeared in the examination were estopped and precluded from filing the writ petition."
54. By relying upon the aforenoted observations of the Supreme Court, it is sought to be argued that the written test and the Physical Efficiency Test cleared by the appellants could not be said to be part of the main examination. The merit of the candidate is not judged thereby, but only an eligible criteria is fixed. It is only when the cut-off marks as prescribed are obtained, the final merit of the candidates is, accordingly, determined. In our opinion, the facts in the case before the Supreme Court were quite different. This decision has no bearing at all so far as the facts and the issues involved in the case on hand are concerned. In fact the observations of the Page 43 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021 C/LPA/1246/2019 CAV JUDGMENT Supreme Court in the last sentence of para 32, to the effect that the disadvantaged group or socially backward class will have to pass the basic minimum criteria helps the present appellants.
55. The learned Single Judge dismissed the petition only on the finding that prescription of cut off is in the realm of policy and has to be best left to the executive. We have no qualms with this reasoning which we have already observed above while dealing with the submission of the learned Government Pleader. However, for the other reasons recorded above the appeal deserve to be allowed. In view of the above discussion, we are of the view that the judgment of the learned Single Judge cannot be sustained.
56. The writ petitioners - appellants are thus entitled to the reliefs claimed. Accordingly, the appeal is allowed. The impugned judgment and order of the learned Single Judge is set aside and the writ petition stands allowed. The respondents are directed to consider the case of the appellants in accordance with law in light of the observations made above, within a period of 2 months from the date of production of a certified copy of this order. There shall however be no order as to costs.
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57. In view of the final disposal of the main matter, the connected Civil Application also stands disposed of.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) gaurav/subbu/ abdulvahid a shaikh Page 45 of 45 Downloaded on : Mon Feb 22 03:02:57 IST 2021