Rajesh
Kumar Daria Vs. Rajasthan Public Service Commission & Ors [2007] Insc 745 (18
July 2007)
K. G. Balakrishnan & R. V. Raveendran & Dalveer Bhandari
CIVIL APPEAL NO. 3132 of 2007 (Arising out of Special Leave Petition (Civil)
No.22510 of 2003) With Civil Appeal No 3773/2007 (Arising out of SLP(C)
No.20652 of 2003) Hari Om Awasthi & Ors. Appellants Rajasthan Public
Service Commission & Ors. Respondents K. G. Balakrishnan, CJI.
Leave Granted.
The appellant in this appeal, as also the appellants in the connected
appeal, were candidates for selection to the posts of Munsiff - Magistrate, in
the Rajasthan Judicial Service. Rajasthan Public Service Commission (for short
'RPSC'), entrusted with the responsibility of selection, issued an
advertisement dated 17.5.2001 inviting applications for filling up 116
vacancies of Munsiff - Magistrates. The details of the vacant posts were shown
as under :
Total No.
of Posts General Category Posts Reserve Posts S.C.
S.T.
O.B.C.
Men (M) Women(W) M F M F M F 116 48 11 15 4 11 3 19 5 The RPSC conducted the
written examination followed by interviews. 261 candidates were successful.
Only 97 of them could be appointed, as some vacancies earmarked for SC and ST
categories could not be filled for want of suitable candidates.
2. The appellant in this appeal (Rajesh Kumar Daria) and the third appellant
in the connected appeal (Mohan Lal Soni) were OBC candidates.
The other five appellants in the connected appeal were general category
candidates. They were not selected. According to them, women candidates were
selected in excess of their reservation quota, contrary to the Rules.
They contended that though the Rules provided for horizontal reservation of
20% for women categorywise, RPSC while preparing the selection list, had
wrongly applied the principles of vertical reservation and had selected women
in excess of the quota, thereby denying selection of the appellants and other
male candidates. It was contended that they had secured higher marks than the
selected women candidates and but for the excess selection of women candidates,
they would have been selected. The appellants in these appeals along with some
other aggrieved candidates therefore filed W.P. No.4150/2002 seeking a
declaration that the selection list dated 30.12.2001, was bad in law to the
extent of excess selection of women candidates and for a consequential
direction to fill those vacancies with male candidates. They (writ petitioners)
also sought a direction that they should be appointed if it was found that they
had secured the necessary marks.
3. The said writ petition was resisted by RPSC. It contended that the
process of listing the selected candidates, was in accordance with the
provision for reservation. The High Court dismissed the writ petition by holding
that the principles of reservation were correctly followed and applied by RPSC.
The decision of the Division Bench of the High Court of Rajasthan is challenged
before this Court. We have heard learned counsel for the appellants as well as
learned counsel for the RPSC.
4. Rule 9(3) of the Rajasthan Judicial Service Rules, 1955 ('Rules' for
short) which is relevant, reads as follows :
"Reservation for women candidates shall be 20% category-wise in the
direct recruitment. In the event of non-availability of the eligible and
suitable women candidates in a particular year, the vacancies so reserved for
them shall be filled in accordance with the normal procedure and such vacancies
shall not be carried forward to the subsequent year and the reservation treated
as horizontal reservation, i.e. the reservation of women candidates shall be
adjusted proportionately in the respective category to which the women
candidate belongs."
5. Before examining whether the reservation provision relating to women, had
been correctly applied, it will be advantageous to refer to the nature of
horizontal reservation and the manner of its application. In Indra Sawhney vs.
Union of India [1992 Supp.(3) SCC 217], the principle of horizontal reservation
was explained thus (Pr.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 - 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."
A special 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 vs. State of U.P. [1995 (5) SCC 173] thus :
" 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]
6. 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 described
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'.
7. 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 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 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. 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.]
9. In this case, the number of candidates to be selected under general
category (open competition), were 59, out of which 11 were earmarked for women.
When the first 59 from among the 261 successful candidates were taken and
listed as per merit, it contained 11 women candidates, which was equal to the
quota for 'General Category - Women'. There was thus no need for any further
selection of woman candidates under the special reservation for women. But what
RPSC did was to take only the first 48 candidates in the order of merit (which
contained 11 women) and thereafter, fill the next 11 posts under the general
category with woman candidates. As a result, we find that among 59 general
category candidates in all 22 women have been selected consisting of eleven
women candidates selected on their own merit (candidates at Sl.Nos.2, 3, 4, 5,
9, 19, 21, 25, 31, 35 & 41 of the Selection List) and another eleven
(candidates at Sl.Nos.54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the
Selection List) included under reservation quota for 'General Category-Women'.
This is clearly impermissible. The process of selections made by RPSC amounts
to treating the 20% reservation for women as a vertical reservation, instead of
being a horizontal reservation within the vertical reservation.
10. Similarly, we find that in regard to 24 posts for OBC, 19 candidates
were selected by RPSC in accordance with merit from among OBC candidates which
included three woman candidates. Thereafter, another five women were selected
under the category of 'OBC - Women', instead of adding only two which was the
shortfall. Thus there were in all 8 women candidates, among the 24 OBC
candidates found in the Selection List. The proper course was to list 24 OBC
candidates as per the merit and then find out number of woman candidates among
them, and only fill the shortfall to make up the quota of five for woman.
11. The appellants' grievance that the selection process adopted by RPSC was
contrary to the reservations policy contained in Rule 9(3) is justified.
But the question is whether the entire selection should be set aside and
whether all appellants should be granted relief. On completion of the selection
process, 97 candidates were appointed in the year 2002 and have been serving as
Judicial Officers for more than five years. There has also been a subsequent
selection and appointments in the year 2005. Further all the selected
candidates are not impleaded as parties. Even from among the original ten writ
petitioners, only seven are before us. On the facts and circumstances, we do
not propose to disturb the selection list dated 30.12.2001 or interfere with
the appointments already made in pursuance of it. We will only consider whether
the appellants before us are entitled to relief. We find that even if the
selection list had been prepared by applying horizontal reservation properly,
only the appellant (Rajesh Kumar Daria) in this appeal, and appellant Nos.3 and
6 in the connected appeal (Mohan Lal Soni and Sunil Kumar Gupta) will get
selected. The other appellants were not eligible to be selected.
12. In view of the above and in view of available vacancies, we deem it just
and proper to accommodate those three candidates without disturbing the
selections and appointments already made, to do complete justice, in the following
manner :
12.1) Sunil Kumar Gupta (general category candidate with 184 marks) and
Mohan Lal Soni (OBC candidate with 169 marks), who ought to have been selected
in the 2001 selection list, and who were denied appointment in view of excess
selection of women candidates, shall be deemed to have been selected by RPSC.
As a consequence, necessary letters of appointment shall be issued to them.
Their seniority for all purposes will however be counted only from the date of
actual appointment.
12.2) Rajesh Kumar Daria (OBC candidate with 171 marks) was also not
selected because of the selection of excess women candidates. He ought to have
been selected and appointed in the 2001 selection. We are told that Rajesh
Kumar Daria got selected in the subsequent 2005 examination and was appointed
in the Rajasthan Judicial Service on 12.2.2005. Considering the above fact, we
direct that he should be given his position in the 2001 selection list.
Interests of justice would be served if he is placed as the last candidate in
the 2001 selection list. As he worked from 12.2.2005, we make it clear that
such retrospective seniority will not entitle him to any monetary benefits, but
will only be counted for promotions and pensionary benefits.
13. The appeals are allowed accordingly in part and the order of the High
Court is set aside insofar as the said three appellants.
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