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2021 DIGILAW 356 (HP)

Neelam v. State Of Himachal Pradesh & Ors.

2021-06-23

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - CMP No.6516 of 2021 Notice. Learned Additional Advocate General, accepts notice on behalf of the non-applicants. By way of this application, a prayer has been made to place on record the Matriculation Certificate of the petitioner, which stands appended with the petition as Annexure-X as well as abstract of the copy of the Advertisement dated 19.12.2018, which is annexed with the application as Annexure-Y. Learned Senior Counsel for the applicant/ petitioner submits that in case the application is allowed and these documents are ordered to be taken on record, they will facilitate the adjudication of the case. Learned Additional Advocate General submits that he has no objection in case the application is allowed and the documents appended therewith are ordered to be taken on record. Accordingly, this application is allowed and the documents appended with the same are ordered to be taken on record, which shall be treated as part of the pleadings. CWP No.492 of 2021 Brief facts necessary for the adjudication of the present petition are as under:- According to the petitioner, she completed her graduation in the year 2018 and in the course of her college years, was selected to represent the State of Himachal Pradesh in the Inter- University Kabaddi Championship, which took place in New Delhi in the year 2017. The team, of which the petitioner was a part, won Bronze Medal in the said Inter-University Championship, as is evident from Annexure P-1, appended alongwith the petition. She was again selected to represent Himachal Pradesh University in the year 2018 and the team again won a Bronze Medal in All India Inter University Kabaddi Tournament held in M.D. Rohtak, as is evident from Annexure P-2. The petitioner was also selected for Himachal Pradesh State Kabaddi team and represented the State in the 66th Senior National Kabaddi Championship, held at Patliputra Sports Complex, Patna and the team won a Bronze Medal. Copy of the Certificate of merit awarded to the petitioner is evident from Annexure P-3. The State of Himachal Pradesh has taken a policy decision to provide 3% reservation to distinguished sports persons in the post/services to be filled up by way of direct recruitment. This reservation is provided in the course of direct recruitment to Class-III and Class-IV categories in all the Government Departments, Boards, Corporation etc. The State of Himachal Pradesh has taken a policy decision to provide 3% reservation to distinguished sports persons in the post/services to be filled up by way of direct recruitment. This reservation is provided in the course of direct recruitment to Class-III and Class-IV categories in all the Government Departments, Boards, Corporation etc. The Department of Youth Services and Sports Himachal Pradesh has also framed Rules of employment cell for distinguished sports persons (Annexure P-5). These Rules were amended vide Annexure P-6 to some extent, as per notification, dated 10.02.2011. In terms of the Rules, the Department of Youth Services and Sports set up a sports person employment cell, which maintains a live register with respect to the eligibility of sports persons for the purpose of appointment. The Recruiting Department sends a requisition to the Department of Youth Services and Sports for sponsoring the names as per vacancies from the live register according to priority. Thereafter, the Requisitioning Department recruits the person whose name has been sponsored. The sport of Kabaddi finds mention at serial No.21 of Annexure-A of the Rules/Scheme framed by the department concerned and medal winners in recognized Senior National Championship (Women) fall in the Category-III of the same. 2. Further, as per the petitioner, respondent No.2 sent a requisition to respondent No.3 to sponsor the names of the distinguished sports persons (women) in the sport of Kabaddi, for the post of Sub-Inspector of Police on regular basis and in response thereto, the name of the petitioner was also sponsored by respondent No.3 for the post in issue vide communication, dated 07.10.2020, appended with the petition as Annexure P-7. In terms of the same, the name of the petitioner was sponsored in Category-III. After the recommendation, nothing was done by the Requisitioning Department for about two months. Thereafter, vide Annexure P-8, dated 10.12.2020, respondent No.2 wrote to respondent No.3 to sponsor the name of a General Category candidate for the post in issue on the plea that as the post of Sub-Inspector (Women) from amongst sports persons quota was to be fulfilled from General Category candidates, whereas the petitioner belonged to Schedule Caste Category. 3. Thereafter, vide Annexure P-8, dated 10.12.2020, respondent No.2 wrote to respondent No.3 to sponsor the name of a General Category candidate for the post in issue on the plea that as the post of Sub-Inspector (Women) from amongst sports persons quota was to be fulfilled from General Category candidates, whereas the petitioner belonged to Schedule Caste Category. 3. According to the petitioner, issuance of Annexure P-8 by respondent No.3 is arbitrary and not sustainable in law in view of the fact that the reservation provided for sports persons is Horizontal reservation and not-considering the name of the petitioner for the post in issue against the quota of sports persons simply on the ground that petitioner belongs to Schedule Caste Category, is not sustainable in law as the petitioner has a right to be appointed against the post in issue in her capacity as a sports person, if she fulfills the requisite eligibility criteria. It is in this background, that the petition has been filed by the petitioner, inter alia, praying for quashing of impugned communication, dated 07.10.2020 (Annexure P-7) and with further prayer for issuance of direction to the respondents to implement the recommendation made by respondent No.3, dated 07.10.2020 (Annexure P-7) and issuance of a writ of mandamus to the respondents to issue an appointment order in favour of the petitioner against the post of Sub-Inspector of Police. 4. Reply to the petition has been filed by respondents No.1 and 3, in which their stand is that as far as respondent No.3 is concerned, it has to sponsor the name of sports person to the Requisitioning Agency, which was done in the present case also and as and when requisition is received from any department, the name of eligible sports person is sponsored on the basis of sports merit and not category wise as no such record is maintained by the department. 5. A separate reply has been filed on behalf of respondent No.2, though it is reflected to be reply filed on behalf of respondents No.1 and 2. The stand of respondent No.2 in the reply, as is evident from the averments made in the preliminary submissions is that the requisition sent to respondent No.2 was with the request to sponsor the name from general category, because as per the roster, two posts falling in the share of sports persons were 'reserved for general category'. The stand of respondent No.2 in the reply, as is evident from the averments made in the preliminary submissions is that the requisition sent to respondent No.2 was with the request to sponsor the name from general category, because as per the roster, two posts falling in the share of sports persons were 'reserved for general category'. Yet the name of the petitioner was sponsored by respondent No.3, who was from Schedule Caste category. It is further the stand of said respondent that the petitioner had completed her Bachelor of Arts (BA-Honours) Degree Programme in June, 2018, whereas the eligibility was required to be fulfilled by the candidate concerned for the post of Sub-Inspector (Women) of Police as on 01.01.2018. It is on these grounds that the petition is opposed by respondent No.2. 6. I have heard learned counsel for the parties and have also gone through the pleadings. 7. Today, vide a miscellaneous application, the matriculation certificate of the petitioner as well as relevant extract of the Advertisement in issue have been ordered to be taken on record. 8. The post in issue was advertised by the Himachal Pradesh Staff Selection Commission, Hamirpur, District Hamirpur, H.P. vide Advertisement No.34-2/2018, dated 19.12.2018. As per the Advertisement, the opening date of submission of online recruitment application form was 23.12.2018. The closing date for submission of the same was 22.01.2019. 9. It was mentioned in the Advertisement that the date for determining eligibility of the candidates in respect of education qualification, experience, if any, shall be the 'prescribed closing date for submission of online recruitment applications form, i.e. 22.01.2019 till 11.59 p.m.." Against the column of age, it was mentioned that for the post in issue, minimum and maximum age was between 21 to 26 years, which was to be reckoned as on 01.01.2018. The minimum qualification required for the post was graduation. 10. The code of the post in issue is 729 in terms of the Advertisement. In all, thirty three posts of Sub-Inspector of Police were advertised. The break of the post falling to the share of various category is mentioned as under:- 31. Police Sub Inspector of Police (on regular basis) Rs.10300-34800+ 4600GP 729 Gen (UR)-14, Gen. (BPL)-03, SC (UR)-06, SC (BPL)-01, SC (WFF)-01, ST (UR)-02, OBC (UR)-05, OBC (BPL)-01 Age: 21 to 26 years 11. The break of the post falling to the share of various category is mentioned as under:- 31. Police Sub Inspector of Police (on regular basis) Rs.10300-34800+ 4600GP 729 Gen (UR)-14, Gen. (BPL)-03, SC (UR)-06, SC (BPL)-01, SC (WFF)-01, ST (UR)-02, OBC (UR)-05, OBC (BPL)-01 Age: 21 to 26 years 11. There is no dispute that the date of birth of the petitioner is 20.06.1996, as is evident from her matriculation certificate. Thus, the petitioner was above 21 years and below 26 years in age as on 01.01.2018. 12. The stand of respondent No.2 that the petitioner was not eligible for appointment against the post in issue on the ground that the cut off date to assess the educational qualification eligibility of the candidate in terms of the Advertisement was 01.01.2018, is not at all sustainable. In fact, it is contrary to the terms of the Advertisement itself. In terms of the Advertisement, the date of determining the eligibility of all the candidates in respect of eligibility of educational qualification etc. was mentioned as the closing date of submission of online recruitment application form, i.e. 22.01.2019, till 11.59 p.m. That being the condition of the Advertisement, respondent No.2 could not have arbitrarily held the petitioner ineligible for the post in issue by taking the stand that the eligibility was to be seen as on 01.01.2018. This date i.e. 01.01.2018 was to determine the minimum and maximum age of the candidate and not to determine the eligibility in respect of essential qualification which obviously includes the educational qualification. It is not in dispute that the petitioner completed her Graduation-Honour Degree in June 2018. That being the case, by no stretch of imagination, it could be said that she was not fulfilling the eligibility criteria in respect of education qualification, because as per the Advertisement, this criteria was to be fulfilled as on 22.01.2019, at 11.59 p.m. and not 01.01.2018 as is the stand of respondent No.2. 13. In view of the findings returned hereinabove, the stand of respondent No.2 that the petitioner was not fulfilling the eligibility criteria in terms of the Advertisement, i.e. the last date prescribed therein, is rejected. 14. 13. In view of the findings returned hereinabove, the stand of respondent No.2 that the petitioner was not fulfilling the eligibility criteria in terms of the Advertisement, i.e. the last date prescribed therein, is rejected. 14. Now, coming to the stand of respondent No.2, that the name of the petitioner could not have been sponsored for the posts of sports person "reserved for General Category candidates" as the petitioner belongs to Schedule Caste Category, all that can be said is that this stand is nothing but deplorable. It is an admitted case of the parties that out of the total posts advertised for Sub-Inspector (Women) of Police, two were to be filled in from amongst the category of sports persons. 15. There are two kinds of reservations, Vertical and Horizontal. In common parlance posts which are reserved for Schedule Caste, Schedule Tribe and Other Backward Class etc., are termed as vertical reservations, whereas the posts which are reserved under the category of sports persons, ex-serviceman, persons with physical disability etc., are said to be horizontally reserved. This is for the reason that whereas the candidates belonging to open category cannot compete for a seat reserved for Schedule Caste or Schedule Tribe Category, however, any person belonging to any caste or tribe, can compete for the post which is horizontally reserved, provided he or she fulfills the eligibility criteria. 16. Incidently, the stand of respondent No.3 is also very clear that when the requisition is received from a department for sponsoring the name of eligible sports person, the name is sponsored by respondent No.3 in terms of the live register maintained by it from amongst the eligible sports persons and this register is maintained purely on the basis of sports merit and no category wise register is maintained. 17. As the post in issue i.e. a reserved post for a sports person, falls under the category of horizontal reservation, then the eligibility has to be assessed of that of a sports person, for the post in terms of his or her sports merit, and a candidate who is otherwise eligible for appointment against the post in issue, cannot be held to be ineligible simply on the ground that as the posts were advertised for General Category, therefore, Schedule Caste Category candidate cannot be appointed against the same. 18. 18. Incidently, it is not the case of respondent No.2 that though there were other more meritorious candidates than the petitioner belonging to the open category available for the post in issue, yet the name of the petitioner was sponsored, ignoring them. This means that for the two posts in issue, solely on the basis of sports merit, the petitioner was found eligible for appointment by respondent No.3 and therefore, her name was sponsored by respondent No.3 to the Requisitioning Department for appointment against the post in issue. Therefore, the act of respondent No.2 of overlooking the name of the petitioner for appointment against the post in issue simply on the ground that the post was 'reserved for Open Category', is arbitrary and not sustainable in law. 19. It is relevant to mention, at this stage, that in fact in service jurisprudence, there is no 'reservation of post for General Category'. The posts advertised are either open or reserved. A post which is not reserved, is an open post. A candidate belonging to reserve category, may be Schedule Caste or Schedule Tribe, has a right to compete for an open category post and if selected on merit, has a right to exhaust an open category post and cannot be said to have exhausted the reserved post if he or she scores higher merit than the open category candidate. This principle of service jurisprudence has also been ignored by respondent No.2 by trying to carve out an artificial classification by terming open seats as 'posts reserved for General Category'. 20. Thus, in view of the discussion held hereinabove, this writ petition is allowed. Annexure P-8, issued by respondent No.2, dated 10.12.2020, is quashed and set aside. It is held that rejection of the name of the petitioner by respondent No.2 for the appointment against the post of Sub-Inspector (Woman), reserved for sports person, is arbitrary and bad in law. 21. A mandamus is issued to respondent No.2 to offer appointment to the petitioner against the post of Sub-Inspector, reserved for sports person, from the same date and on the same terms of which the other incumbent namely Ms.Khila Devi was appointed. The seniority shall be granted to the petitioner as from the date of appointment of Ms. Khila Devi, but other benefits shall be notional as up to the date of passing of this judgment. The seniority shall be granted to the petitioner as from the date of appointment of Ms. Khila Devi, but other benefits shall be notional as up to the date of passing of this judgment. It is clarified that inter se seniority of Ms. Khila Devi and the petitioner shall be in terms of their inter se merit as determined by the department. 22. The petition stands disposed of in the above terms, so also pending miscellaneous applications, if any. Interim Order, if any, stands vacated.