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2014 DIGILAW 1882 (HP)

Vikas Kumar v. State of H. P.

2014-12-11

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. The petitioner applied for the post of constable under the OBC category, while the respondents No. 4 and 5, who too belonged to OBC category, applied under the category of OBC reserved for Antodaya and IRDP categories. The relative marks obtained by the parties are as under:- Petitioner = 71.33% Respondent No.4 = 71.83% Respondent No.5 = 68.67% The total number of posts and their break up is as under:- Category Break up of posts as per vertical reservation Ex- Serviceman IRDP Sportsman Wards of Freedom fighter Home Guard Other General 33 4 5 1 - 6 17 SC 11 2 1 - - 1 7 ST 1 - - - - - 1 OBC 10 1 1 - - 1 7 Total 55 7 7 1 - 8 32 2. It appears that respondent No. 4, who admittedly, had secured higher marks than the petitioner was considered for the post of OBC (IRDP) category, but then in view of his higher percentage, he was considered against the IRDP in general OBC category and respondent No. 5 who had obtained only 68.67% marks came to be appointed in the OBC (IRDP) category. The grievance of the petitioner is that the candidature of respondent No. 5 could not have been considered against the post of OBC (IRDP) category because that slot had already been occupied by respondent No. 4, as admittedly respondent No. 4 had applied under the OBC (IRDP) category and not in OBC (Un-reserved) category. 3. The official respondents in their reply filed to the petition contended that both the respondents No. 4 and 5 belong to the OBC (IRDP) category and because the respondent No. 4 secured 71.83 marks, his candidature was considered against OBC (Un-reserved) post as per the rules of reservation and instructions of the government. The rules provide that in case a person from the reserved category secures more marks from the candidates of unreserved category, the candidature of such candidate could be considered against the unreserved post. The petitioner had secured 71.33% marks, which was less than the marks secured by respondent No. 4 and therefore he could not be selected against the OBC (unreserved) category, whereas the respondent No. 5 though had secured less marks than the petitioner, but he was selected against the OBC (IRDP) category and not against OBC (unreserved) category. 4. The petitioner had secured 71.33% marks, which was less than the marks secured by respondent No. 4 and therefore he could not be selected against the OBC (unreserved) category, whereas the respondent No. 5 though had secured less marks than the petitioner, but he was selected against the OBC (IRDP) category and not against OBC (unreserved) category. 4. I have heard Mr. Vijay Bhatia, learned counsel for the petitioner and Mr. Shrawan Dogra, learned Advocate General assisted by S/Sh. Virender Kumar Verma, Rupinder Singh, learned Additional Advocate Generals and Ms. Parul Negi, learned Deputy Advocate General for respondents No. 1 to 3, and Mr. V.D.Khidtta, learned counsel for respondent No. 5. 5. At the very out set this court has no hesitation to observe that respondents have totally misconstrued and misinterpreted the very concept of horizontal and vertical reservation. The principle of horizontal reservation was explained by the Hon'ble Supreme Court in the celebrated case of Indra Sawhney vs. Union of India 1992 Supp (3) SCC 217 in the following terms:- "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 - what 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 the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) 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." 6. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same." 6. The method of implementing the special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by the Hon'ble Supreme Court in Anil Kumar Gupta vs. State of U.P. (1995) 5 SCC 173 , in the following terms:- "The proper and correct course is to first fill up the Open Competition 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 overall 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. (If, however, it is a case of compartmentalized 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.). [Emphasis supplied]? 7. Now what would be the difference between the nature of vertical reservation and horizontal reservation has been succinctly dealt with by the Hon'ble Supreme Court in Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others (2007) 8 SCC 785 , in the following terms:- ?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 nonreserved 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. 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 nonreserved 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. 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.]? 8. The controversy regarding vertical and horizontal reservation again came up for consideration before Hon'ble Supreme Court in Public Service Commission, Uttaranchal vs. Mamta Bisht and others (2010) 12 SCC 204 , wherein 35 posts of Civil Judge (Junior Division) had been advertised with the stipulation that number of vacancies may be increased or decreased. It was clarified that reservation policy adopted by the State in favour of SC/ST/OBCs and horizontal reservation in favour of physically handicapped and women etc. belonging to Uttaranchal would be applicable. Respondent Mamta Bisht applied and sought benefit of reservation in favour of Uttaranchal women. She qualified the written examination and faced interview held by the Commission. The final result of the selection was declared on 31.7.2003 and respondent No.1 was not selected. Instead of filling up 35 vacancies, the recommendation to fill up 42 vacancies was made as the decision had been taken in this regard prior to the declaration of the result. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates, some women candidates stood selected in the general category while the other was given the benefit of horizontal reservation being residents of Uttaranchal. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates, some women candidates stood selected in the general category while the other was given the benefit of horizontal reservation being residents of Uttaranchal. Respondent Mamta Bisht being aggrieved, preferred writ petition before the High Court of Uttaranchal seeking quashment of select list mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in the general category and had it been done so she would have been selected in the reserved category being woman of Uttaranchal. The High Court accepted her submission and came to the conclusion that the last selected woman candidate who was given the benefit of horizontal reservation for Uttaranchal woman had secured marks higher than the last selected candidate in the general category. Thus the said candidate ought to have been appointed against the general category vacancy while the respondent Mamta Bisht ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal woman. In appeal, the Hon'ble Supreme Court held as follows: ?11. All the 42 vacancies had been filled up, implementing the reservation policy. All the women candidates selected from reserved category indisputably belong to Uttaranchal and none of them is from another State. 12. The High Court decided the case on the sole ground that as the last selected candidate, receiving the benefit of horizontal reservation had secured marks more than the last selected general category candidate, she ought to have been appointed against the vacancy in general category in view of the judgment of this Court in Indra Sawhney Vs. Union of India, AIR 1993 SC 477 , and the Division Bench judgment of High Court of Uttaranchal in Writ Petition No.816/2002 (M/B) (Km. Sikha Agarwal Vs. State of Uttaranchal & Ors.) decided on 16.4.2003, and respondent no.1 ought to have appointed giving benefit of reservation thus, allowed the writ petition filed by respondent No.1. 13. Union of India, AIR 1993 SC 477 , and the Division Bench judgment of High Court of Uttaranchal in Writ Petition No.816/2002 (M/B) (Km. Sikha Agarwal Vs. State of Uttaranchal & Ors.) decided on 16.4.2003, and respondent no.1 ought to have appointed giving benefit of reservation thus, allowed the writ petition filed by respondent No.1. 13. In fact, 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 reserved category candidates (social) as it held as under: "In view of above, Neetu Joshi (Sl.No.9, Roll No.12320) has wrongly been counted by the respondent No.3/Commission against five seats reserved for Uttaranchal Women General Category as she has competed on her own merit as general candidate and as 5th candidate the petitioner should have been counted for Uttaranchal Women General Category seats." Admittedly, the said Neetu Joshi has not been impleaded as a respondent. It has been stated at the Bar that an application for impleadment had been filed but there is nothing on record to show that the said application had ever been allowed. Attempt had been made to implead some successful candidates before this Court but those applications stood rejected by this Court.? 9. The reservation in favour of OBC classes is under Article 16 (4) of the Constitution and would be termed as vertical reservation, whereas the reservation thereafter in favour of other categories like Ex-serviceman, IRDP and Home Guard within the OBC category would be considered as horizontal reservation. The horizontal reservations cut across the vertical reservations what is called as interlocking reservations. The persons selected against the quota will be placed in that quota by making necessary adjustment. Therefore, even after providing for these horizontal reservations, the percentage of reservations in favour of OBC would still remain the same and should remain the same. 10. The proper and correct course for the respondents in this case was to have first filled up all the ten vacancies on the basis of merit and then fill up the special reservations i.e. Ex-serviceman, IRDP and Home Guard. If the quota fixed for horizontal reservation was already satisfied, no further question would arise. 10. The proper and correct course for the respondents in this case was to have first filled up all the ten vacancies on the basis of merit and then fill up the special reservations i.e. Ex-serviceman, IRDP and Home Guard. If the quota fixed for horizontal reservation was already satisfied, no further question would arise. But in case there was a shortfall and the reservation had not been satisfied, the requisite number of special reservation candidates were required to be taken and adjusted/accommodated against their respective categories i.e. Ex-serviceman, IRDP and Home Guard by deleting the corresponding number of candidates therefrom. 11. This admittedly having not been done, it can safely be concluded that respondents have not correctly applied the vertical and horizontal reservations. The name of respondent No. 4 could not have been considered against the OBC (unreserved) category and consequently the seat so vacated by him could not have been offered to respondent No.5. The respondent No. 4 had already occupied the slot reserved for OBC (IRDP) and his case thereafter could not have been considered for the post of OBC (unreserved). Likewise respondent No. 5 could not have been considered against the post of OBC (IRDP) by pushing up and considering the case of respondent No. 4 in the category of OBC (unreserved). After respondent No.4 had been appointed to the post of OBC (IRDP) then the seat vacated by him was essentially required to be filled up from OBC (unreserved) category. Indisputably the petitioner was next in merit and was therefore required to be appointed in place of respondent No.5. 12. In view of the aforesaid discussion, there is merit in this petition and the same is allowed and official respondents are directed to consider and appoint the petitioner to the post of police constable against OBC (unreserved) category. Accordingly, the appointment of respondent No. 5 to the post of OBC (IRDP) is quashed and set-aside. Similarly, the appointment of respondent No. 4 to the post of OBC (General) is also quashed and set-aside and he will be considered to have been appointed to the post of OBC (IRDP). This order be complied with within six weeks and needless to say that petitioner shall be entitled to all consequential benefits. 13. Similarly, the appointment of respondent No. 4 to the post of OBC (General) is also quashed and set-aside and he will be considered to have been appointed to the post of OBC (IRDP). This order be complied with within six weeks and needless to say that petitioner shall be entitled to all consequential benefits. 13. At this stage, it may be noticed that there has been no misrepresentation on the part of respondent No.4 and even otherwise no fault can be attributed to him as he came to be appointed by the official respondents by wrongly applying the principle of horizontal and vertical reservations. The petitioner has been working with the respondents for the last more than four years. The Hon'ble Supreme Court in V. Balasubramaniam and others vs. Tamil Nadu Housing Board and others (1987) 4 SCC 738 in similar circumstances while allowing a claim for promotion which would have resulted in the reversion of the promoted candidate had directed that instead of reverting the candidate a supernumerary post, if necessary, be created till such time he becomes eligible to be promoted to the said post. It will be apt to reproduce para-18 of the judgement, which reads thus:- ?18. We, however, make it clear that if in the process of reviewing the promotions already made in accordance with the directions issued by the learned single Judge it becomes necessary to revert any Junior Engineer from the post which he is now holding we direct that he shall not be so reverted but he shall be continued in the post which he is now holding by creating a supernumerary post, if necessary, until such time he becomes again eligible to be promoted to the said post. The continuance of such Junior Engineer in the post which he is now holding as per this direction shall not, however, come in the way of the petitioners in the writ petitions or any other employee of the Board getting the promotion due to him and the seniority to which he is entitled in accordance with law. These appeals are accordingly allowed. There shall, however, be no order as to costs.? 14. These appeals are accordingly allowed. There shall, however, be no order as to costs.? 14. In N.T. Devin Katti and others vs. Karnataka Public Service Commission and others (1990) 3 SCC 157 the Hon'ble Supreme Court in similar circumstances after setting aside the appointment of respondent had directed the State government to create a supernumerary post, as would be clear from the following observations:- ?15. During the pendency of the writ petition before the High Court, appointments were made to the posts of Tehsildars on the basis of the revised list prepared by the Commission in accordance with the directions of the State Government dated 23rd of the High Court the appointment orders contained a specific term that the appointments would be subject to the result of the writ petition filed by the appellants. Since the appellants have succeeded, the respondents' appointment is liable to be set aside. The respondents have been working for a period of about 14 years, it would cause great hardship to them if their appointment is quashed, and they are directed to vacate the office which they have been holding during all these years. At the same time the appellants have been wrongly denied their right to the posts of Tehsildars. Having regard to these facts and circumstances, we are of the opinion that. it would be expedient in the interest of justice not to interfere with the respondents' appointment but at the same time steps should be taken to enforce the appellants' right to the posts of Tehsildars. In this view, we direct the State Government to appoint the appellants on the posts of Tehsildars with retrospective effect, but if no vacancies are available the State Government will create supernumerary posts of Tehsildars for appointing the appellants against those Posts. We further direct that for purposes of seniority the appellants should. Be placed below the last candidate appointed in l976 but they will not be entitled to any backwages. The appellants will be entitled to promotion if otherwise found suitable.? 15. Similarly in S.B.Sarkar and others vs. Union of India and others (1990)3 SCC 168 , the promotions already made were not disturbed by the Hon'ble Supreme Court and it was further held that in case there was any short-fall, the adequate number of additional posts be created, as would be clear from the following observations:- ?11. 15. Similarly in S.B.Sarkar and others vs. Union of India and others (1990)3 SCC 168 , the promotions already made were not disturbed by the Hon'ble Supreme Court and it was further held that in case there was any short-fall, the adequate number of additional posts be created, as would be clear from the following observations:- ?11. In the result this appeal is disposed of by directing that the respondent authorities shall grant promotional benefit to those 204 SMswho had exercised option before 1983 in the same manner as it would have been if option had not been abolished in accordance with the earlier procedure provided they fulfilled the other requirements. While doing so those who had been promoted shall not be disturbed as directed by this Court on 30th July, 1987. Further if as a result of this exercise posts in higher grade fall short, the respondents shall create adequate number of additional posts to overcome the difficulty. The respondents are further directed to complete all this exercise within six months. Persons promoted in pursuance of this order shall be entitled to all consequential benefits from the due dates. Appellants shall be entitled to consolidated costs which are assessed at Rs. 5,000 to be payable by respondent No. 2.? 16. In Ram Sewak Prasad vs. State of U.P. and others AIR 1991 SC 1818 the promotions of the candidates who otherwise were required to be reverted were protected and the State government was directed to create additional post to accommodate the petitioner and other similar persons, as would be clear from the following observations:- ?12. We make it clear that none of the respondents who have already been promoted to the higher rank of Excise Superintendents or Assistant Excise Commissioners be reverted to accommodate the petitioner or any other person similarly situated. The State Government shall create additional posts in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the petitioner and other similar persons, if necessary.? 17. Though this court has quashed and set-aside the appointment of respondent No.5, however, the official respondents may consider the desirability of not dispensing with his services and may consider his case by creating a supernumerary post or adjust the said respondent against some future vacancy. The writ petition is allowed in the aforesaid terms, leaving the parties to bear their own costs.