Research › Search › Judgment

Madhya Pradesh High Court · body

2024 DIGILAW 751 (MP)

Krishna Kuamr Yadav v. State of Madhya Pradesh

2024-12-03

SANJEEV SACHDEVA, VINAY SARAF

body2024
ORDER : Vinay Saraf, J. 1. The instant writ petition has been preferred by the petitioner assailing the action of the respondent whereby the respondent had cancelled the appointment of the petitioner on the post of Peon (open category) on 09.11.2017. 2. With the consent of parties, the matter is heard finally. 3. The facts of the case are that an advertisement was issued by the High Court of M.P. Jabalpur for various posts interalia three posts of Peons in open category for the District Court, Katni out of which one post was reserved for woman (unreserved category). In the advertisement, it was mentioned that reservation of the post for women shall be horizontal and compartmentalised. As per advertisement, last date for application was 27.10.2016. The petitioner applied for the post of Peon and secured the third position in merit list. Consequently, he was appointed on 17.03.2017 by District and Sessions Judge, Katni. He joined on the same day. 4. It appears that thereafter the objections were submitted by respondent no.3, Smt. Deepshikha Kesharwani that respondent no.5, Smt. Shashi Kumari Vishwakarma had applied under the OBC category and was appointed against the open seat, therefore, her appointment cannot be considered against the seat reserved for woman (unreserved). She claimed that as she scored 21 marks in selection process, she be appointed against the reserved post for women (unreserved) and appointment of respondent no.5 be treated against unreserved seat. Learned OSD (District Establishment) issued a letter to District and Sessions Judge, Katni on 08.11.2017 on the basis of the amended wait list dated 29.07.2017 and directed to consider the appointment of respondent no.5 Smt. Shashi Kumari Vishwakarma in OBC category and to cancel the appointment order of petitioner after affording opportunity of hearing. 5. Consequently on the next day, District and Sessions Judge Katni terminated the services of the petitioner by order dated 09.11.2017. However, it is mentioned in the order that sufficient opportunity was granted to the petitioner. 6. The respondent no.3 was appointed by order dated 18.05.2017 against the reserved seat for woman (unreserved) as the respondent no.5 Smt. Shashi Vishwakarma, who secured top position in merit list was treated as OBC candidate. The order of cancellation of appointment of the petitioner and process adopted for reservation are challenged by the petitioner as well as the appointment order of respondent no.3 dated 18.05.2017. 7. The order of cancellation of appointment of the petitioner and process adopted for reservation are challenged by the petitioner as well as the appointment order of respondent no.3 dated 18.05.2017. 7. Learned counsel for the petitioner submits that process adopted by the employer was erroneous as only three posts for the peon at Katni were advertised and out of three posts, two were open and one was reserved for woman of unreserved category and the reservation was horizontal therefore, the appointment of respondent no.5 could not be considered against OBC category as no posts for OBC was advertised. He further submits that when one post of open category was horizontally reserved for the woman, the respondent no.5 who secured top position in merit list, her appointment ought to have been considered against the reserved seat of woman in open category and therefore, the respondent no.3 who was not in top three candidates of merit list could not be appointed against reserved seat of woman and the cancellation of the appointment of the petitioner on the said ground was erroneous, incorrect, arbitrary and is liable to be set aside. 8. Learned counsel for the petitioner relied on the judgment delivered by the Supreme Court in the case of Anil Kumar Gupta Vs. State of U.P. & Ors. (1995) 5 SCC 173 and in the case of Rajesh Kumar Dariya Vs. Rajasthan Public Service Commission & Ors. (2007) 8 SCC 785 . 9. Learned counsel appearing for respondent nos.2 and 4 supported the orders passed by OSD (District Establishment) High of M.P. as well as District and Sessions Judge, Katni. It is submitted that the process for application for reservation was properly adopted and as the respondent no.5 was OBC candidate therefore, she could not be appointed against the reserved post for woman in open category and her appointment could not be considered against unreserved category reserved post for women. 10. Learned counsel appearing for respondent no.3 vehemently opposed the petition on the ground that originally the merit list was wrongly prepared therefore the respondent no.3 submitted her objection that Smt. Shashi Viswakarma (respondent no.5) had applied in OBC category and secured 25 marks and position in the merit list. However, being a OBC candidate she cannot be treated as unreserved woman candidate as the change of compartment was not permissible. However, being a OBC candidate she cannot be treated as unreserved woman candidate as the change of compartment was not permissible. It is further submitted on behalf of respondent no.3 that she is working on the post of Peon since 18.05.2017 and after such a long period she should not be removed from the post by accepting the process claimed by the petitioner. 11. Heard learned counsel for the parties and perused the record. 12. High Court of M.P. invited applications for various posts of Class IV employees to be appointed in different District and Session Courts through advertisement including three posts of Peons for District Court, Katni. All these three posts were of unreserved open category and out of these posts, one post was reserved for woman. It was specifically mentioned in the advertisement that reservation for woman shall be compartmentalized horizontal reservation. Petitioner participated in the recruitment process and secured third position. 13. Respondent no.5 stood in the merit list with 25 marks whereas Amit Kumar Mishra and the petitioner were also secured position with 25 and 23 marks respectively. All these three successful candidates were appointed. On 17.03.2017, petitioner was appointed on the post of Peon and on the same day he joined. Thereafter, respondent no.3 raised the objection that appointment of respondent no.5 could not be considered against the post reserved for woman in unreserved open category as she applied under the OBC category therefore, her appointment should be treated against open category simplicitor and cannot be treated against the post reserved for woman in unreserved category because the reservation was compartmentalized horizontal. Objection was considered and she was appointed on 18.05.2017 against the reserved post of woman in unreserved category. Later on, the appointment of petitioner was cancelled by order dated 09.11.2017 and his name was shown as wait list no.1 in amended wait list dated 29.07.2017. The action of the respondent by which appointment of the petitioner was cancelled and the respondent no.3 was appointed are under challenge in the present petition. Later on, the appointment of petitioner was cancelled by order dated 09.11.2017 and his name was shown as wait list no.1 in amended wait list dated 29.07.2017. The action of the respondent by which appointment of the petitioner was cancelled and the respondent no.3 was appointed are under challenge in the present petition. The fore most question in the present petition is that whether the appointment of respondent no.5 was against the reserved post of woman in unreserved open category or it was simplicitor in unreserved category as if the same is treated as simplicitor appointment in unreserved open category then respondent no.5 and Amit Kumar Mishra could be appointed against two posts of unreserved open category and third post which was reserved for woman could be filled up by a woman candidate who secured highest marks among other candidates. It reveals from mere perusal of the advertisement that there were only three posts advertised for District Court, Katni and these all posts were of unreserved open category. Meaning thereby, every person was entitled to apply for these posts. Therefore, the appointment of respondent no.5 could not be treated against OBC candidates and her appointment satisfied the horizontal reservation for woman in unreserved category. 14. It is trite law that if a candidate of any category secures more marks then he will be migrated into unreserved category and will be appointed in unreserved open category if secures more than cut off marks in unreserved category. Even if the respondent no.5 is treated as a candidate of OBC, as she secured 25 marks, she migrated in unreserved open category and appointed in unreserved category. Requirement of horizontal reservation was satisfied as out of three candidates, one was woman and there was no need to appoint someone else against the woman post. 15. The Apex Court in the matter of Anil Kumar Gupta Vs. State of U.P. reported in (1995) 5 SCC 173 has held that the horizontal reservation are compartmentalised and the notification inviting application should itself state not only the percentage of horizontal reservation but should also specify the number of seats reserved for them in any social reservation categories. 15. The Apex Court in the matter of Anil Kumar Gupta Vs. State of U.P. reported in (1995) 5 SCC 173 has held that the horizontal reservation are compartmentalised and the notification inviting application should itself state not only the percentage of horizontal reservation but should also specify the number of seats reserved for them in any social reservation categories. The Apex Court held that the proper and correct course to fill up the seats as per vertical reservation and thereafter consider that whether the quota fixed for horizontal reservation is already satisfied or not and in case, it is an over all horizontal reservation is satisfied no further question arises. The Apex Court held that if the over all reservation is not satisfied with the successful candidates of any particular compartment, then the requisite number of special reservation candidates should be taken or adjusted against their respective social reservation categories by deleting the corresponding number of candidates therefrom. Meaning thereby if the successful candidate satisfies the requirement of horizontal reservation then there is no need to adjust or accommodate any other candidate against the horizontal reservation. The relevant paragraph of the judgment are as under: "17. It would have been better - and the respondents may note this for their future guidance- that while proving horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that the Uttar Pradesh Government was not aware of this distinction between "overall horizontal reservation" and "compartmentalized horizontal reservation", since it appears from the judgment in Swati Gupta that in the first notification issued by the government of Uttar Pradesh on 17.5.1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty -seven percent but at the same time, it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are compartmentalised in the sense explained above. In other words, the notification inviting applciations should itself state not only the percentage of horizontal reservation (s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., ST, SC, OBC and OC. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out herein above, 110 seats out of 112 seats meant for special reservations have been taken away from the OC category alone- and none from the OBC or for that matter, from SC or ST. It can well happen the other way also in a given year. 18. Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservations seats to be filled up first and then take up the OC (merit quota (followed by filing of OBC, SC and ST quotas). The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e. SC, ST and BC; 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 it is 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. (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.) Because the revised notification provided for a different method of filing the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the OC quota." 16. The Apex court further clarifies in the matter of Rajesh Kumar Dariya (supra) that social reservations in favour of schedule castes, schedule tribes and other backward classes under Article 16(4) of the Constitution of India are vertical reservations and special reservations in favour of physically handicapped, woman etc. under Article 16 (1) or 15(3) are horizontal reservations. It is held in the judgment that if a candidate of backward class eligible for social reservation compete for non reserved post on his own merit then he will not be counted against the quota reserved for the respective backward class and he will be migrated against the unreserved open post. Complying the clarification given by the Apex court, in the present matter, the respondent no.5 would claim the seat of unreserved open category as unreserved candidate and therefore, she satisfies the requirement of specialized reservation for woman candidate of unreserved category and therefore, there is no need to appoint any further woman candidate against that post. The relevant paragraphs of the judgment are - 7. "A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P.2 thus: (SCC p. 185, para 18) "The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; 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. 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 adiusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised 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 per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)" (emphasis supplied) 8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: "For SC: 30 posts, of which 9 posts are for women." We find that many a time this is wrongly describe thus: "For SC: 21 posts for men and 9 posts for women, in all 30 posts." Obviously, there is, and there can be, no reservation category of "male" or "men". 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 underate Widores Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, womeri, 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 non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for 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 that 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. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhans and Ritesh R. Sah v. Dr. Y.L. Yamur.) 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 Caste 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 ate W 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 woman candidates, then there is no need to disturb the list by including any further SC woman 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 woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four." 17. Considering the law laid down by the Apex Court in the above cases, three candidates from the merit list could be appointed against three posts and as among three candidates, one was woman, she satisfied the requirement of reservation of one post for woman in unreserved category and therefore, the original merit list, whereby the petitioner, respondent no.5 and Amit Kumar Mishra were appointed after applying the correct procedure and thereafter the same was modified wrongly. The proposition was wrongly applied later on and respondent no.3 was appointed against the post reserved for woman in unreserved category and consequently, later on the appointment of petitioner was cancelled. 18. The provisional select list which was issued, wherein the petitioner was declared successful and the appointment of petitioner, Amit Kumar Mishra and respondent no.5 were in accordance with law. 19. Consequently, the petition is allowed and the order dated 08.11.2017 (Annexure P-1) and order dated 09.11.2017 as well as the modified wait list dated 29.07.2017 are hereby quashed. 20. We have been informed that several posts are still vacant therefore, we are not quashing the appointment order of respondent no.3 and the said issue is left open for consideration by the District and Sessions Judge, Katni and if any post is available and as per rules, the respondent no.3 can be adjusted, the District and Sessions Judge, Katni will consider the same in accordance with applicable rules as she is working since 18.07.2017. Applying the principal of 'no work, no pay, petitioner will not be entitled for pay and emoluments for the period when he was not in service because of impugned order of removal, however, he is entitled for reinstatement. 21. Let the necessary compliance for reinstatement of the petitioner be completed within 45 days from the date of passing of this order. Petitioner will be entitled to get the benefit of seniority from the original date of appointment i.e. 17.03.2017. 22. With the aforesaid direction, the present petition is allowed. There shall be no order as to costs.