Punjab-Haryana High Court
Ankita vs State Of Haryana And Others on 28 April, 2022
Author: Arun Monga
Bench: Arun Monga
270 (2 cases)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: April 28, 2022
CWP-2493-2022 (O&M)
Ankita .....Petitioner
versus
State of Haryana and others
........Respondents
CWP-2521-2022 (O&M)
Anju Pahal ...Petitioner
Vs.
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present: Mr. Rajat Mor, Advocate,
For the petitioners.
Ms. Shruti Jain Goyal, DAG, Haryana.
*****
ARUN MONGA, J. (ORAL)
Vide this common order, I intend to dispose of the aforementioned two writ petitions, as common questions of law and facts are involved therein. For brevity, facts are being taken from CWP No.2521-2022.
2. Petitioner herein, inter alia, seeks issuance of a writ in the nature of certiorari to quash the impugned result dated 04.02.2022 (Annexure P-8) qua EWS category as well as General Category i.e., unreserved category for the post of Veterinary Livestock Development Assistant (VLDA).
3. Succinct facts First. Petitioner had applied for the Post of VLDA under EWS category. She cleared the written examination and was called for scrutiny of documents. She appeared for the same. On 04.02.2022, respondent- Commission published the impugned final result and her roll number was not there among the successful candidates under EWS category. Petitioner qua her 1 of 7 ::: Downloaded on - 24-07-2022 00:46:35 ::: CWP-2493-2022 (O&M) aforesaid grievance, submitted representations but to no avail. Hence, the instant petition.
4. Learned counsel for the petitioner(s) submits that the last selected candidate under EWS category has secured 58 marks and candidate in waiting list under EWS category has secured 56.50 marks. As per the answer key, petitioner has secured 67 marks in the written examination. He contends that she is eligible for 5 additional marks under the socio-economic criteria for no job in her family. Therefore, if said marks towards socio-economic criteria are granted to her, then her total score would come out to be 72, which is way more than the last candidate selected under the EWS category. In any case, petitioner is duly eligible to be considered in the General category because she has secured more marks than the last selected candidate in General category, he further contends.
5. Learned Deputy Advocate General contends per contra. She argues that the petitioners had since applied under EWS reserved category and cannot, therefore, be considered for general category. Their EWS certificates were found invalid, rendering them ineligible for said category. They could not, therefore, be considered for selection either in EWS reserved category or general category.
6. Having heard rival contentions, it is rather appalling to see the conduct of the respondents in denying the benefit of what is envisaged under Article 16 of the Constitution of India, which for their education is reproduced herein below:
"16. Equality of opportunity in matters of public employment (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be Page 2 of 7 2 of 7 ::: Downloaded on - 24-07-2022 00:46:35 ::: CWP-2493-2022 (O&M) ineligible for, or discriminated against in respect or, any employment or office under the State (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination."
7. It is the basic principle of reservation, which the respondents need to be aware and be careful in future, that first and foremost general category seats are to be filled from the merit list as per result and thereafter the reserved category seats are to be allocated as per the quota assigned thereto.
8. First and foremost, once the merit list is prepared of the general category and if any candidate, who has applied under reserved category and not considered eligible, but obtained higher marks than the last selected candidate in general category, even then he has a right of selection and appointment under general category. In the present case, concededly the petitioners had though applied under EWS category. Petitioners, even if not given the benefit of EWS reservation, they were/are eligible to be considered in General Category as per their marks i.e. 67 each and arrayed in the merit list of general category as per their score.
9. It is rather preposterous to argue as is being canvassed by learned State counsel that if in the scrutiny round, a candidate is found not eligible for the reservation sought by him, then he shall not be considered even in the open Page 3 of 7 3 of 7 ::: Downloaded on - 24-07-2022 00:46:35 ::: CWP-2493-2022 (O&M) (General) Category. The same goes against the very content and intent of Article 16 of the Constitution.
10. No doubt, reservation is envisaged on the basis of backward class under Sub Article (4), but in case a candidate is not found or found entitled to the reservation by no stretch of imagination Article 16 is to be interpreted so as to mean that right of a candidate to be considered in open general category is taken away. If that were to be done, same would be also violative of Article 14 of the Constitution of India, apart from Article 16 (1) itself.
11. In fact, what has been opined by me as above is trite in view of the repeated pronouncements from time to time. Reference may be had to a Supreme Court judgment dated 18.12.2020 in case titled as "Saurav Yadav and others Vs. State of Uttar Pradesh and others" in W.P. (C) No.237 of 2020. Relevant part thereof is reproduced hereinbelow:-
"22. The Principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in "Open or General Category" is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong."
"27.1 XXXX XXX .........If we go by the first view, the claim of reserved category candidates if they are more meritorious, has to be considered, in which case the candidate at Serial No. 86 will be required to be accommodated. Resultantly, the candidate at Serial No.88 must give way.
XXX XXX
28 The second view, based on adoption of a different
principle at the stage of horizontal reservation as against one accepted to be a settled principle for vertical reservation, may thus lead to situations where a less meritorious candidate, not belonging to any of the reserved categories, may get selected in preference to a more meritorious candidate coming from a reserved category.
XXX XXX
32 The second view will thus not only lead to irrational
results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open/General seats are reserved for candidates other Page 4 of 7 4 of 7 ::: Downloaded on - 24-07-2022 00:46:35 ::: CWP-2493-2022 (O&M) than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court. 33 We, therefore, do not approve the second view and reject it.
XXX XXX
54 The open category is not a 'quota', but rather available
to all women and men alike. Similarly, as held in Rajesh Kumar Daria (22), there is no quota for men. If we are to accept the second view. The result would be confining the number of women candidates, irrespective of their performance, in their social reservation categories and therefore, destructive of logic and merit.
XXX XXX
58 I would conclude by saying that reservations, both
vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid "slots", where a candidate's merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be , if the state's argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in its merit, regardless of whether reservation benefit of either type is available to her or him."
12. To summarize, it is re-emphasized that the respondents would do better in future to follow the aforesaid principles enunciated by the Supreme Court of India. In the event, it is the same selection, pursuant to the same very advertisement, then first and foremost all the candidates according to their merit are to be adjusted in open General Category. It is only after all the general category seats are filled up, that the other various vertical categories of reservation shall then open up for the reserved category candidates. Needless to say, in accordance with the merit list. The contrary conduct of the respondents, perhaps is deliberate to indulge in favouritsm, and is strongly deprecated.
13. In the parting, I would like to express my disagreement with the over emphatic reliance placed by learned counsel for the State on an Apex Court's judgment rendered in "Union of India Versus Dalbir Singh and others" reported as 2009 (4) SCT 636 which, to say the least, has not only been completely Page 5 of 7 5 of 7 ::: Downloaded on - 24-07-2022 00:46:35 ::: CWP-2493-2022 (O&M) misquoted in course of arguments, but is even otherwise, totally out of context, inasmuch as, it is noted in the judgment itself in paras 8 and 13 as below:
"8. They had also stated that, to fill up the vacancies of Mazdoors, an advertisement had been issued separately for general and OBC categories and pursuant to such advertisement, the applicant had applied against OBC category and not under general category and, therefore, his name was not considered under general category.
XXX XXX XXX
13. From the pleadings, it appears to us, that the appellants had prepared two sets of lists. The first one being the list of those candidates who had staked their claim in the general merit and the second list contains those candidates who had opted for consideration of their case under OBC category. The respondent at no point of time had taken exception to the procedure adopted by the appellants in preparing the select list. In our opinion, having opted to consider his case only under OBC category, he cannot thereafter claim that his case requires to be considered in the general merit, only because, he has scored better percentage of marks than the last selected candidate in the general merit."
It was in the aforesaid context that the Apex Court held that once a candidate had opted for and participated in selection pursuant to "separate advertisement" meant for "separate categories" in "separate selection process"
having "separate merit list", he cannot stake his claim on the basis of his merit for consideration in the general category merely because he obtained more marks than the last selected candidate in the separate selection of general category.
Per contra, in the present case, the selection process was not separate for the general category candidates vis-à-vis the EWS reserved category, but it was a common single process for all categories. Therefore, the aforesaid judgment relied upon by the learned State counsel is not applicable here in.
14. As an upshot of the discussion above, it is held that the petitioners are entitled to consideration of their claim against vacancy in General Category on the basis of their merit in the said category. Accordingly, writ petitions are allowed to that extent and respondents are directed to consider the candidature of Page 6 of 7
6 of 7 ::: Downloaded on - 24-07-2022 00:46:35 ::: CWP-2493-2022 (O&M) the petitioners in general category in accordance with the marks obtained by them and proceed further in accordance with law.
15. Needful be done within 30 days of petitioners' approaching the respondents along with copy of the instant order/judgment.
16. A photocopy of this order be placed on the connected case file.
(ARUN MONGA)
JUDGE
April 28, 2022
vandana
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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