Arpita Sahu vs The State of M.P. and Others

Short controversy involved in this case is that the petitioner who had appeared in the Pre-Agricultural Test, 2011 as an OBC candidate and claimed reservation in OBC female who could not get admission on the ground that in the same category another female candidate namely Jyoti Singh had obtained 66 marks while the petitioner could achieve only 63 marks and as such she was not found entitled for admission in B. Tech course. Contention of the petitioner before this Court is that the respondent No. 2 has given admission to three unreserved female candidates who have earned less than 63 marks but has not given admission to the petitioner who earned 63 marks. It was submitted that the petitioner was entitled for admission in B. Tech course.

Respondents No. 2 has filed reply in which it is stated that as per Para 2.10.2(a) of the rules namely PAT Examination Entrance Rules, 2011, such change over of the candidate was not permission in horizontal reservation. It was submitted that the petitioner had claimed horizontal reservation and was not entitled to revert in vertical reservation which was for unreserved category. It was submitted that in the light of the aforesaid rule, candidature of the petitioner was rightly rejected. Reliance is placed by the respondent to a judgment of the Apex Court in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, and also a Single Bench judgment of this Court in Shruti Sharma Vs. State of M.P. & others Writ Petition No. 5347 of 2001 decided on 5.2.2002, a copy of which is on record as Annexure R-2/2.

To appreciate the aforesaid contention, factual position in the case deserves to be stated. Petitioner was a candidate for B. Tech. course and entered in Pre-Agricultural Test, 2011 (P.A.T.) as an OBC candidate and claimed her reservation as an OBC female candidate. She had secured 63 marks out of 200. She was also called for counselling on 10.10.2011, but she was not given admission, resulting filing of this petition.

The reply of the respondent No. 2, in short, is that the petitioner had secured 63 marks and the last candidate under the same category had earned more marks in comparison to the petitioner. Three female candidates of unreserved category had secured less than the marks obtained by the petitioner. It was submitted that so far as vertical reservation was concerned, such switch over was possible. Three female candidates of unreserved category had secured less than marks in comparison to the petitioner but as per the rule, such change over in horizontal reservation is not possible, so the candidature of the petitioner was rightly rejected. Relevant rule is rule 2.10.2(a) and for ready reference, we quote the rule which reads thus:

Aforesaid rule specifically provides that provision for shifting a candidature to vertical reservation is possible but it will not be allowed in horizontal reservation. The controversy has been considered by the Apex Court in Rajesh Kumar Daria(supra) and the Apex Court in para 9 of the judgment held thus:-

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 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. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul.) 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 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.)

As per settled law by the Apex Court, there is no doubt that such candidate cannot be counted against the quota reserved for other candidate in Horizontal Reservation, and in view of the law laid down by the Apex Court in Rajesh Kumar Daria (supra), petitioner has no case on merits and accordingly, this petition is dismissed with no order as to costs.