Madhya Pradesh High Court
Dr. Sunita Thakre vs The State Of Madhya Pradesh Judgement ... on 23 October, 2013
Writ Petition No.18023/2013
23.10.2013.
Shri Ashish Trivedi, learned counsel for the petitioner.
Shri S.S. Bisen, learned Government Advocate for the
respondent-State of M.P. on advance notice.
Heard.
Public Health and Family Department, Government of Madhya Pradesh invited applications for recruitment of 1252 contract posts of Ayush Medical Officers under National Rural Health Mission. Of these, 626 posts were earmarked in favour of female candidates. These 1252 posts were further earmarked for Ayurved Medical Officer (45% = 564 posts), Homeopathy Medical Officer (45% = 564 posts) and Unani Medical Officer (10% = 124 posts). As per roster, posts of Homeopathy Medical Officer (presently we are concerned with the Homeopathy Medical Officer) was reserved as under -
Homeopathy Medical Officer : Total posts 564 Sl. Category Male Female Physically Total No. handicapped (Orthopedic) Male Female 1 Unreserved 132 132 09 09 282 (General) 2 Scheduled 42 42 03 03 90 Castes 3 Scheduled 53 53 03 03 112 Tribes 4 OBCs 38 38 02 02 80 Total No. of posts 265 265 17 17 564 Petitioner applied against the post earmarked for Other Backward Class.
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Writ Petition No.18023/2013Examination was held on 4.8.2013. Results whereof were declared on 19.9.2013.
Petitioner obtained 2222 rank with score of 49. That, category wise cut off list was published with open rank and close rank. For OBC female nil class candidates, the open and close rank were 1057 and 2202. The district cut off for Balaghat for female candidate was 52 and 8766 open and close rank respectively.
That, category wise marks cut off was also declared with maximum marks and minimum marks for OBC female unreserved as 60 and 49 respectively and the corresponding cut off marks of District Balaghat in the petitioner's category was 82 (maximum) and 27 (minimum).
The category wise cut off list and category wise marks cut-off for female OBC nil class is depicted hereunder -
Category wise cut off Homeopathic
Open Rank Close Rank
OBC x F 1057 2202
District-wise cut off (Balaghat) - Female Open Rank Close Rank 52 8766 Category wise marks cut off Max. Marks Min. Marks OBC x F 60 49 District-wise marks cut off - Female Max. Marks Minimum Marks 82 27 :: 3 ::
Writ Petition No.18023/2013That, category wise cut off and category wise cut off marks for unreserved female were 563 (open rank) and 2702 (close rank) and 68 (maximum marks) and 47 (minimum marks).
Petitioner with 2222 rank with score of 49 raised the grievance that instead of accommodating the petitioner (though OBC) in General Category, the candidates below the rank of petitioner and receiving less marks than the petitioner are being selected in General Category.
Contention on behalf of petitioner is that as per Rule 3 of Madhya Pradesh Civil Services (Special Provisions for Appointment of Women) Rules, 1997, thirty per cent of the total post in service is to be reserved in favour of women and the said reservation is horizontal and compartment wise. That being so, it is contended that since marks obtained by the female candidates are higher than those belonging to General Category, incumbent it was upon the respondents to have considered such OBC Female Candidates obtaining more marks than the last female candidate of General Class for appointment in General Category.
The Rules of 1997 which are being referred to are framed in exercise of the power conferred by the proviso to Article 309 of the Constitution of India. Rule 2 whereof stipulates that "without prejudice to the generality of the provisions contained in any service rules, these rules shall apply to all persons to public service and posts in connection with the affairs of the State. Meaning thereby that the provisions of 1997 Rules will not affect the operation of other Rules (See Standard Chartered Bank v. Director of Enforcement (2006) 4 SCC 278 Paragraphs 21 and 22). In other words, the mechanism for implementing the reservation clause has :: 4 ::
Writ Petition No.18023/2013to be in consistent with the provisions of the M.P. Lok Seva (Anusuchit Jatiyon, Anusuchit Jan-Jatiyon Aur Annya Picchade Vargon Ke Liye Arakshan) Adhiniyam, 1994, which is an Act to provide for the reservation of vacancies in public services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens and for matters connected therewith or incidental thereto.
Sub-section (2) of Section 4 of Adiniyam, 1994 stipulates the percentage of posts reserved in service in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes.
Sub-section (4) of S.4 of Adiniyam, 1994 stipulates that :-
(4) If a person belonging to any of the categories mentioned in sub-section (2) gets selected on the basis of merit in an open competition with General Candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (2).
What does it mean? Whether a candidate who opts to take up a competitive examination not as a General Category but as a reserved category candidate belonging to SC/ST/OBC, as the case may be, thus competing amongst the candidates of his category, if obtain marks higher than obtained by the candidates of a General Category can be permitted to incurs in the General Category. In other words, whether a candidate having opted to participate in a competitive examination as a reserved category candidate can be permitted to migrate to General Category?
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Writ Petition No.18023/2013In Indra Swahney vs. Union of India 1992 Supp (3) SCC 217 (Paragraph 812), it has been observed -
"812. ............: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] 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 interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of 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.
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Thus, when a reservation is horizontal, then the candidate selected on the basis of reservation in any category has to be fixed in said category and cannot be allowed to migrate to other category. The concept of migrating from one category to another on the basis of merit may hold good in vertical reservation but in horizontal reservation the same is not applicable.
In Rajesh Kumar Daria v. Rajasthan Public Service Commission AIR 2007 SC 3127, it has been held -
"7-8. 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 Art. 16(4) are 'vertical reservations.' Special reservations in favour of physically handicapped, women etc., under Art. 16(1) or 15(3) are 'horizontal reservations.' Where a vertical reservation is made in favour of a backward class under Art. 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 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 :: 7 ::Writ Petition No.18023/2013
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 women 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 :: 8 ::Writ Petition No.18023/2013
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.)"
In the case at hand, out of 564 posts of Homeopathy Medical Officers, 265 posts are reserved for women candidates of all categories i.e. horizontal reservation. Therefore, candidates of one category even if obtain higher marks than that of General Category cannot seek migration to General Category posts.
In view whereof, the mandamus sought for that the respondents be directed to adjust the petitioner against General Category seat cannot be granted.
In the result, petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE vinod