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Uttarakhand High Court · body

2008 DIGILAW 136 (UTT)

Mrs. Deepali Sharma v. State of Uttarakhand

2008-03-28

J.C.S.RAWAT, V.K.GUPTA

body2008
Judgment V.K. Gupta, C.J. Mr. Alok Singh, Senior Advocate for the petitioner. Mr. Subhash Upadhyaya, Brief Holder for respondent No.1. Mr. B.D. Pandey, Advocate on behalf of Mr. B.D. Kandpal, Advocate for respondent No.2. 2. The only controversy involved in this case is as to whether reservation of 20% available to women in the selection for Uttaranchal Judicial Services was confined to woman candidates belonging to Uttaranchal State or was it available to all such woman candidates of the count who were otherwise eligible. The undisputed and un-controverted facts of this case are as under:- 3. Uttaranchal Public Service Commission invited applications for various posts of Civil Judges (Junior Division) for the Examination-2005 vide an advertisement issued and published in the Newspapers on 16th February, 2006. The last date for the receipt of application forms was 20th March, 2006. In the advertisement it was clearly mentioned that against the total 50 number of available vacancies, following vacancies were in the reserved category : i. Scheduled Castes 9 ii. Scheduled Tribes 2 iii. Other Backward Classes 7 Apart from the aforesaid 18 reserved vacancies, the advertisement also clearly stated that as per applicable Government Orders, reservation with respect to other classes would also be available. 4. The petitioner applied, citing herself as a woman belonging to Uttaranchal State and claiming reservation in the reserved category of "woman" candidates. Communication No. 1144/karmic-2-2001-53(1 )/2001 dated 18th July, 2001, whereas in para (1) thereof specified and allocated reservation at 19%, 04% and 14% respectively for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, in para (2) thereof, it clearly stated that as far as women, ex-servicemen, disabled persons and the dependents of freedom fighters are concerned, there shall be an allocated reservation of 20%,2%,3% and 2% respectively. The petitioner having applied and gone through the selection process first underwent preliminary examination, thereafter, the main examination and finally the viva voce. In the final select list published and issued by the Commission, the petitioner's name figured in serial number 2 in order of merit but despite this she was not selected. The petitioner having applied and gone through the selection process first underwent preliminary examination, thereafter, the main examination and finally the viva voce. In the final select list published and issued by the Commission, the petitioner's name figured in serial number 2 in order of merit but despite this she was not selected. Her name was not recommended by the Commission to the Government for appointment only on the ground that she was not a bona fide resident of Uttarakhand State and because the reservation in the category of "woman" candidates was available only on the Uttarakhand State women residents and not the woman candidates belonging States other than Uttarakhand. Reliance in support of this submission was placed on communication number 1968/XXX(2)/2006 dated 24th July, 2006. 5. There is no doubt that the petitioner has been wronged, discriminated against and treated arbitrarily. We have no doubt whatsoever in our minds that as far as the reservation in the category of woman candidates is concerned, it was available to all woman candidates in the country and it was not confined to the woman candidates who were resident of Uttarakhand State. Communication dated 24th July, 2006 (Supra) in para (1) thereof did make a reference to the communication dated 18th July, 2001 (Supra) but it incorrectly arid wrongly stated that the 18th July, 2001 communication had mentioned only Uttaranchal women candidates for being included in the 20% reservation category. We have very carefully seen the communication dated 18th July, 2001 and found that very unambiguously it created a category of woman candidates for providing 20% reservation in their favour. This communication did not at all anywhere specify, lay down or provide that the woman candidates for being eligible to avail 20% reservation should be belonging to or be residents of Uttarakhand State. As far as communication dated 24th July, 2006 is concerned, after wrongly mentioning the aforesaid fact in para (1), at para (2) even though it increased the women's reservation from 20% to 30% and for the first time did indicate and mention about the woman belonging to Uttaranchal State, it also at the same time clearly stated that this 10% increase in reservation with respect to the woman candidates belonging to Uttaranchal State shall not be applicable in such cases where the selection process has already begun and the advertisements have been published before the issuance of this communication. 6. 6. As we have noticed at the outset, because the advertisement in the present case was published in the Newspapers on 16th February, 2006 and actually the last date for submission of the application forms was 20th March, 2006 and because the aforesaid communication was issued on 24th July, 2006, this was not at all applicable to the present selection process. Because the 24th July, 2006 communication is not at all applicable to the present case we are not called upon to decide and determine the validity on the constitutional vires of the stipulation contained in para (2) thereof, vis that the benefit of30% reservation shall be available only to such woman candidates who belong Uttaranchal State. Since this issue does not arise or fall for our consideration in this case, we refrain from offering any comment, giving any view or expressing any option on the subject. 7. Because undoubtedly the communication' dated 18th July, 2001 was alone applicable to the present case and since this communication did not at all restrict the benefit of reservation in the category of woman candidates to women belonging to Uttaranchal and because it clearly embraced within its scope and ambit all women candidates, excluding a woman who otherwise being eligible was not a resident of, or did not belong to, Uttaranchal State was patently illegal and unconstitutional and it deprived the petitioner of her right of equality under Articles 14 and 16 of the Constitution of India. The petitioner otherwise having been selected was unconstitutionally and illegally denied the right of appointment. This was in patent being violation of Articles 14 and 16 of the Constitution of India. 8. Based upon the aforesaid, we have no hesitation in quashing and setting aside the aforesaid illegal action of the respondents whereby the petitioner was deprived of her right of selection and appointment. By hereby issuing a Writ of Mandamus, we direct and command the respondents to take all steps with respect to the selection and appointment of the petitioner in the Uttarakhand Judicial Services. 9. By hereby issuing a Writ of Mandamus, we direct and command the respondents to take all steps with respect to the selection and appointment of the petitioner in the Uttarakhand Judicial Services. 9. Since the selection process with respect to the other successful candidates already stands completed more than a month back and since other successful candidates already stand appointed in the service and actually are undergoing training, the petitioner cannot be left behind because any delay with respect to her appointment will be prejudicial to her interest as well as the Institution. We, therefore, direct respondent NO.2 to send appropriate recommendation in the light of and based on the observations and directions contained herein with respect to the selection of the petitioner to the State Government latest by 2nd April, 2008. Based upon such recommendation, we direct the State Government in turn to issue the appointment order in favour of the petitioner before 4th April, 2008.