Aakriti Bahuguna & Others vs Uttarakhand Public Service Commission & Others

Ramesh Ranganathan, CJ

In all these three writ petitions, the petitioners claim to be eligible, and to be entitled, to appear in the "Main Examination", as they belong to Uttarakhand women category, and have secured more than the minimum cut-off marks prescribed for "Uttarakhand women" i.e. of 135.25 marks; they should have been called to appear in the Main Examination; and their exclusion, from the process of selection by the State Public Service Commission is arbitrary and illegal.

While the marks secured by Mrs. Anurita Singh Gupta is 150.5, Ms. Semmy Tyagi secured 137.25 marks and Ms. Aakriti Bahuguna secured 136.75 marks.

Mr. V.K. Kohli, learned Senior Advocate assisted by Mr. Arvind Kumar Sharma, Mr. Sudhir Kumar and Dr. Kartikey Hari Gupta, learned counsel for the petitioners, would contend that, for the fault of the Public Service Commission in not stipulating that reservation is available even within the unreserved category, the petitioners cannot be penalized; in their application forms, the petitioners have stated that their domicile is in Uttarakhand, and they belong to the unreserved category; the application form is misleading; while it discloses reservation in favour of the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, it does not provide a separate column for horizontal reservation; the Public Service Commission is not justified in denying the petitioners the opportunity to appear in the main examination, though they secured more than the minimum cut-off marks, on hypertechnical grounds; and since the exercise undertaken by the Public Service Commission is to identify the most meritorious among the eligible candidates, and as the petitioners have, admittedly, secured more than the cut-off marks, they should have also been invited to appear in the main examination, along with the other eligible candidates.

As it appeared to us that the petitioners, all of whom belonged to the "Uttarakhand women category", had been deprived of their opportunity to appear in the main examination, despite having secured more than the minimum cut-off marks, we had asked Mr. B.D. Kandpal, learned counsel for the Public Service Commission, to produce the application forms of the petitioners.

Today Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service Commission, has placed for our perusal not only copies of the application forms of all the three petitioners, but also a copy of the application form submitted by Ms. Manisha Rawat who had claimed the benefit of reservation applicable to "Uttarakhand women" category, and was in fact provided the benefit of such reservation. According to the learned Standing Counsel, the petitioners have only filed copies of the application forms, submitted by them for one-time registration; and they have not filed a copy of the application form submitted by them to appear for selection to the post of Civil Judge (Jr. Div.).

Before taking note of the contents of the application forms submitted by the petitioners, it is also necessary to note that, in the advertisement issued by the Uttarakhand Public Service Commission on 28.12.2018, it was made clear that the applicants should indicate the Reservation Category/Sub Category in the application form; and failure to claim the benefit of reservation in the application form would disable them from claiming such a benefit later. The advertisement also records the following table:-

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The aforesaid table contains details of the Sub Category in each of the categories of posts sought to be filled up. Of the total twenty-nine posts in the unreserved category, 09 were reserved in favour of Uttarakhand women and 01 in favour of Uttarakhand Ex-servicemen. Unlike vertical reservation which can be provided under Article 16(4) of the Constitution of India, the source of power to provide horizontal reservation in each of the categories, including in those categories in whose favour vertical reservation is provided, is under Article 16(1) of the Constitution of India read with Article 15(3) thereof.

The application forms submitted by the petitioners, no doubt, show that the petitioners had filled up the column "Whether Domicile of Uttarakhand?", by answering "Yes". However, in the column "whether they wanted to claim the benefit of Reservation Category/Sub Category", all of them answered in negative saying "No". It is their case, however, that, since they fell in the unreserved category, they were under the impression that the aforesaid column related only to vertical reservation, and not horizontal reservation in the unreserved category; and, consequently, they ought not to have been denied the benefit of horizontal reservation provided, under the unreserved category, in favour of Uttarakhand women.

Yet another contention is regarding Computer malfunctioning. It is the petitioners' case that the moment the applicant records the applicant's birth place, as outside the State of Uttarakhand, the online application form does not show the column relating to reservation being provided in favour of Uttarakhand women.

Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service Commission, has placed before us a copy of the application form submitted by one Ms. Manisha Rawat whose birth place is shown as New Delhi. She filled up the column "as to whether she is a domicile of Uttarakhand" answering it as "Yes". In reply to the column, "Do you want to claim the benefit of Reservation Category/Sub Category?", she again answered "Yes"; in the column relating to Category/Sub Category she filled up as "Uttarakhand Female"; and in the column "whether she claimed reservation", she answered "Yes".

It is clear from the application form submitted by Ms. Manisha Rawat that, with respect to all those who claimed the benefit of reservation, a table popped-up in the online application form relating to Category/Sub Category. It is only because the petitioners had said "No" with respect to the column "Do you want to claim the benefit of Reservation Category/Sub Category" that the online application form did not disclose the Sub-Category of "Uttarakhand Female".

The submission urged, on behalf of the petitioners, that their disclosure that they were a domicile of Uttarakhand can only mean that they were Uttarakhand women, does not merit acceptance. It is not as if all Uttarakhand women are obligated to avail the benefit of reservation provided for "Uttarakhand women", for it is always open to a candidate, belonging to the Uttarakhand women category, to refuse the benefit of reservation and to claim to be considered for selection on her own merit under the unreserved category.

A similar question fell for consideration before a Division Bench of this Court in Yamini Joshi Vs. State of Uttarakhand and another (order in Special Appeal No.76 of 2010 dated 08.06.2010), wherein the applicant had also stated that she was a female and was a domicile of the State of Uttaranchal. She had also answered in the negative as to whether she claimed the benefit of reservation. It is in this context that a Division Bench of this Court observed:-

"..................We have considered the solitary contention advanced by the learned counsel for the appellant. All those candidates, who were desirous of being considered by way of reservation, were required to respond to column No.12. Column No.12 envisaged reservation for Scheduled Castes, Scheduled Tribes, Other Back Ward Categories, Defence Personnel, Ex Service Men, Sports Persons, Government Servants earlier employed in the State of Uttaranchal, Uttaranchal Females, Physically Handicap candidates, whether they were possessing low vision, hearing impairment or locomoter disability. Every candidate, who was desirous of being considered for any of the aforesaid reserved categories, was liable to respond to column No.12 of the OMR sheet depicting the particular reservation the candidate was claiming. Undisputedly, the appellant herein did not fill up column No.12 so as to claim reservation as an Uttaranchal female. As such, the learned Single Judge declined the claim of the appellant, by passing the impugned order dated 05.05.2010, to issue a direction to the respondent to consider the appellant against the reserved category of Uttaranchal Females. We find no infirmity in the instant determination rendered by the learned Single Judge. It is apparent that the appellant did not choose to claim appointment by way of reservation, in as much as, she did not fill up column No.12. Having failed to fill up column No.12, so as to claim reservation as an Uttaranchal female, even though she may have been awarded more marks than other Uttaranchal females who sought such reservation, her claim cannot be evaluated from the reserved category of Uttaranchal Females, as she never applied for the same............"

(emphasis supplied)

A similar question again fell for consideration before another Division Bench of this Court in "Babli Gaur Vs. Uttarakhand Public Service Commission" (order in WPSB No. 130 of 2018 and batch dated 02.05.2018), wherein the Division Bench, following the order passed by the earlier Division Bench in Yamini Joshi Vs. State of Uttarakhand and another (order in Special Appeal No.76 of 2010 dated 08.06.2010) observed:-

"......................In the first place, we must notice that in the advertisement itself, the Commission has specifically indicated the number of vacancies, which are available in various categories/disciplines. In the last column, it is indicated under the heading 'General', the following subcategories: the first is Uttarakhand Female. The next subcategory is Handicapped. The third subcategory is ex-servicemen. Then the last category is dependants of freedom fighters. Similarly under various categories, namely, Scheduled Caste, Scheduled Tribe, OBC, these subcategories and the number of vacancies available under the advertisement are clearly indicated.

Therefore, it may not be correct to say that the candidates did not know about the subcategories. The petitioners are before this Court seeking a writ of mandamus. This is on the basis that they had a legal right and there is a corresponding duty on the part of the Commission. The petitioners, if they wish to seek a mandamus, should fulfill the requirements under which the right would accrue to them and the right can be enforced. It is trite that be it horizontal or vertical reservation, without there being a claim in the application, it is not open to a candidate to demand of the recruiting body that their claim be considered. It is open to a candidate belonging to any of the reserved categories or falling within any of the horizontal reservation categories to not claim reservation. If he/she seeks benefit, he/she must necessarily lay a claim; the claim must be made in the manner known to law.

The argument of the petitioners that they have complied with the terms of Clause -10 cannot be accepted in the facts of these cases. The purport of Clause-10 is clear from its terms. It indicates that vertical and horizontal reservation will be admissible to the residents of the State of Uttarakhand only as per the prevailing orders. We do not see how this will advance the case of the petitioners. Further declaration is that the candidates belonging to the various reserved categories be it vertical or horizontal, who are not residents of the State of Uttarakhand, shall not be admitted to the benefit of reservation and they can apply only under the unreserved General category. Lastly, it is indicated that if the candidates claim for reservation for more than one subcategory then he/she will be entitled to get the benefit only in that subcategory, which is the most beneficial to him/her. On scanning these provisions of Clause-10, we are unable to accept the argument of the petitioners that they have laid a claim for horizontal reservation in the category of Uttarakhand women, when in Clause-1, which we have already noticed, a condition has been inserted very clearly that in terms of the Bench decision of this Court, not mentioning of the subcategory will be fatal to the claim of reservation.

Coming to the argument that the judgment of the Division Bench of this Court is distinguishable, we see equally no merit in the same. The first aspect, which is mentioned, is that in the said case, the Court was confronted with the OMRs. The fact that the applications in these cases are online and the contents in those cases were contained in the OMRs, in our view, hardly makes a distinction as far as substance of the matter in these cases is concerned. The further fact that in the OMRs involved in those cases, subcategories were separately, expressly enumerated and in the online application, there is no enumeration of the subcategory also in our case will not suffice for us to not apply the dictum laid down by the Bench in the said case. As we have already noticed, the question is relating to the manner of setting of a claim for reservation. In the online application, as we have noticed, there is a column, which provides for category and the subcategory. Nothing prevented the petitioners from indicating the subcategory. They are persons, who are claiming the benefit of horizontal reservation under the subcategory. If that be so, they must lay a claim for the same. But the column 'subcategory' is not filled up. The subcategory in all these cases was clearly known to the petitioners as they are laying a claim for reservation under the said subcategory. The subcategories are easily discernible also from the advertisement, which we have already noticed, namely, 'Uttarakhand Female'. Having filled up part of the column, namely, category with the entry 'general', the fact that they have left the subcategory unfilled, will clearly attract the caution and the warning which was sounded in Clause-1 of the advertisement, which we have indicated. This is also to be read in the context of the judgment of this Court, which the Public Service Commission has taken care to incorporate as a clause in the advertisement. Therefore, we would think that we cannot accept the contentions of the petitioners in these cases that the application merely for the reason that it contained the details regarding gender and domicile will fulfill the requirement of the notification. We also draw support from the Admit Cards, which have been issued by the Commission. Admit Cards, in no uncertain terms, have been issued on the basis of the contents of the online applications and it is clear that the candidates were being treated merely as General candidates. Therefore, the Commission has acted in terms of its advertisement and denied the benefit of horizontal reservation to them strictly in terms of Clause-1 of the advertisement and they cannot be accused of any illegality in not calling the petitioners for further process of selection.

The last aspect, which we must deal with, is about the 'asterix'(*) in the online application form. The requirement in the online application form is that the columns, which carry an 'asterix'(*) are mandatory and that the columns relating to category/subcategory does not have an 'asterix'(*). The 'asterix'(*) is there, as pointed out by the learned counsel for the Commission, in regard to columns, which relate to basic eligibility. As we have noted, the candidates, who may be entitled to the benefit of vertical or horizontal reservation, need not claim reservation. It is entirely optional for a candidate to claim reservation. Therefore, a category and subcategory can certainly not be made a mandatory condition and, therefore, if they do not wish to lay a claim for reservation, then they would certainly be entitled to be considered as a 'General' candidate. This alone would be the result..........."

(emphasis supplied)

Yet another Division Bench in "Chandra Prakash Vs. State of Uttarakhand (order in Special Appeal No. 149 of 2019 dated 03.04.2019) has taken a similar view following the law laid down by the Division Bench in Yamini Joshi Vs. State of Uttarakhand and another (order in Special Appeal No. 76 of 2010 dated 08.06.2010).

While reliance is placed on behalf of the petitioners on a Division Bench Judgment of the Delhi High Court in Union of India Vs. Sumit Kumar (order in Petition No. 4829 of 2017 dated 10.08.2017), and to the judgment of the Division Bench of the Rajasthan High Court in Anil Kumar Vs. State of Rajasthan and others (order in Writ Petition No. 657 of 2012 dated 02.01.2013), we must bear in mind that, unlike judgments of other High Courts which have persuasive value, judgments of Coordinate Benches of this Court would bind us. We see no reason to take a view different from that taken by the earlier three Division Benches of this High Court. While we are conscious of the fact that the order now passed by us has resulted in more meritorious candidates not being considered in the process of selection, judicial discipline would require us to follow the law laid down by the earlier Division Bench judgments of this Court.

The writ petition fails and is, accordingly, dismissed. No costs.