Rajasthan High Court - Jaipur
Rajesh Kumar Khati vs State (Agricultural Depart)Ors on 20 December, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.20612/2012 Rajesh Kumar Khati Versus The State of Rajasthan & Ors. DATE OF ORDER : 20/12/2012 HON'BLE MR.JUSTICE M.N. BHANDARI Mr. Yogendra Jain, for petitioner
Mr. Pradeep Kalwania, Addl. Govt. Counsel *** This writ petition pertains to selection to the post of Agriculture Supervisor.
The allegation of petitioner is regarding excess reservation to the ex-servicemen in OBC category. It is stated that out of 897 posts, reservation to the ex-servicemen is 12%. However, respondent has given appointment to the ex-servicemen by placing them more in OBC category than to other categories. The ex-servicemen should not have been given placement in OBC category more than 12%. Accordingly, action of the respondents is illegal and contrary to the principle of horizontal reservation.
Learned Counsel for respondents submits that as against 897 posts, 112 posts were reserved for ex-servicemen. After selection, only 61 ex-servicemen are available with the respondents. Their placement was considered to provide reservation and for that purpose, they were placed in the category to which they belong say Open, SC/ST & OBC. It may be that ex-servicemen are more in OBC category than to other two categories, but there is no provision to maintain 12% horizontal reservation for ex-serviceman category-wise rather aforesaid applies only for special reservation to the female which is 30% to each category namely; Open, SC/ST & OBC. Similar provision to provide category-wise reservation does not exist for ex-servicemen rather it is overall 12% reservation to the post. In view of the above, no illegality exists in the action of the respondents.
I have considered the rival submissions of learned Counsel for parties.
The issue regarding vertical and horizontal reservation has been dealt with by Hon'ble Apex Court with illustration in the case of Rajesh Kumar Daria Vs. RPSC & Ors., (2007) 8 SCC 785. Relevant Paras of the said judgment are quoted hereunder:
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.
10. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 women candidates, which was equal to the quota for 'General Category - Women'. There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven women candidates selected on their own merit (candidates at Sl.Nos.2, 3, 4, 5, 9, 19, 21, 25, 31, 35 & 41 of the Selection List) and another eleven (candidates at Sl.Nos.54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the Selection List) included under reservation quota for 'General Category-Women'. This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation.
Perusal of above paras reveals that how vertical and horizontal reservation is to be applied. As per illustration and direction given therein, respondents are required to prepare list of open category at the first instance. After preparing the aforesaid, they are required to prepare list for vertical reservation, which is for SC/ST and OBC. While preparing list for vertical reservation known as social reservation, those finding place in the first list of open category on their own merit should not be counted towards social reservation say SC/ST and OBC. After preparation of list as indicated above, the horizontal reservation is to be applied. The horizontal reservation is of two types, one for female which is provided in each category separately and known as compartmentalised reservation. Other is reservation to the ex-servicemen, disabled person, etc., it is without the specific category and thus, known as non-compartmentalised reservation. While applying special reservation to female of each category, they are provided reservation as per illustration given in the case of Rajesh Kumar Daria (supra). To simplify that if vertical list of OBC candidates is drawn and reservation to the female is to be provided, then exercise to be undertaken at the first instance is that after drawing list for vertical reservation, if 30% female in OBC category are found then special reservation for female in OBC category get satisfied in view of horizontal reservation. In that case, list prepared for OBC candidates while providing vertical reservation is to be maintained as it is. In case there is a shortfall of female OBC candidate to provide reservation to the extent of 30% than to the extent of shortfall, candidate from vertical list are to be taken out from bottom to make a room for horizontal reservation of female. The aforesaid exercise specify horizontal reservation for female candidates which is category-wise. So far as other special reservation like reservation for disabled, ex-servicemen, etc. are concerned, those reservation are not category-wise and accordingly, one is required to see entire list which is meant for Open category and for SC/ST & OBC based on vertical reservation. If number of candidates belonging to the disabled category or ex-servicemen find place to the size of reservation required than special reservation meant for them, being horizontal get satisfied. The horizontal reservation in that case is not for each category, but it is overall reservation, thus, it may be that ex-servicemen find place more in one category than equally distributed. There is no provision that they should also be provided reservation in each category say Open, SC/ST & OBC. In fact, reservation to the ex-servicemen and disabled, etc. is known as non-compartmentalised reservation.
In the background aforesaid, plea raised by learned counsel for petitioner cannot be accepted. According to him, 12% reservation to the ex-serviceman is to be provided in each category say Open, SC/ST and OBC.
The aforesaid argument is not tenable in the light of clarification made above and in view of the judgment of Hon'ble Apex Court in the case of Rajesh Kumar Daria (supra) and in the case of Anil Kumar Gupta Vs. State of U.P., reported in (1995) 5 SCC-173 wherein issue of compartmentalised and non-compartmentalised reservation has been dealt with. Relevant paras of the said judgment are quoted hereinunder.
15. On a careful consideration of the revised notification of December 17, 1994 and the aforementioned corrigendum issued by the Lucknow University, we are of the opinion that in view of the ambiguous language employed therein, it is not possible to give a definite answer to the question whether the horizontal reservations are overall reservations or compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered.
16. Now coming to the revised notification of December 17, 1994, it says that "horizontal reservation be granted in all medical colleges on total seats of all the courses....". These words are being interpreted in two different ways by the parties; one says it is over-all reservation while other says it is compartmentalised. Paragraph 2 says that the candidates selected under the aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/General to which they belong. For example, if a candidate dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he will be adjusted against the seat reserved for Scheduled Castes". This is sought to be read by the petitioners as affirming that it is a case of compartmentalised reservation. May be or may not be. It appears that while issuing the said notification, the Government was not conscious of the distinction between overall horizontal reservation and compartmentalised horizontal reservation. At any rate, it may not have had in its contemplation the situation like the one which has arisen now. This is probably the reason that this aspect has not been stated in clear terms.
17. It would have been better - and the respondents may note this for their future guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that the Uttar Pradesh Government was not aware of this distinction between "overall horizontal reservation" and compartmentalised horizontal reservation, since it appears from the judgment in Swati Gupta that in the first notification issued by the Government of Uttar Pradesh on May 17, 1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are comparmentalised in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out hereinabove, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C. category alone - and none from the O.B.C. or for that matter, from S.C. or S.T. It can well happen the other way also in a given year.
18. Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas). 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 rreservation 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 compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota.
Perusal of paras quoted above reveals difference between special reservation to the female and two other categories in the instant case. It is coincidence that ex-servicemen are selected more in the category of OBC than to any other category, but for that reason, they cannot be ousted from the list of OBC candidates and if it is allowed, then 12% reservation meant for them cannot be satisfied because horizontal reservation does not permit migration from one category to another. Considering issue from all angles, no case is made out in favour of petitioner.
Accordingly, writ petition is found devoid of merit, hence, dismissed. Stay application is also dismissed.
[M.N.BHANDARI], J.
FRBOHRA/20612CWP2012.doc Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, P.A