Ashish Kumar vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

The application seeking condonation of delay is not opposed by the learned counsel for the respondents and the delay is, therefore, condoned.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 763 of 2016 dated 25.04.2017. The appellant herein invoked the jurisdiction of this Court seeking a writ of certiorari to quash the impugned order dated 19.11.2015 wherein the petitioner's name was not included; and for a mandamus directing the respondent-authorities to appoint the petitioner to the post of Forest Constable (Van Arakshi).

A notification dated 11.08.2015 was issued by the 3rd respondent which was published in the newspapers on 14.08.2015 inviting applications for 21 posts of Forest Constable (Van Arakshi) (Temporary Workmen). Of these 21 posts, 12 posts were to be filled up from the general category, and 09 posts were earmarked for the Scheduled Castes, of which 01 post was reserved in favour of the Uttarakhand Andolankari category. 30% horizontal reservation was provided for women in each of these categories. The petitioner, a general category candidate, also applied for appointment to the said posts. After completion of the written test, a merit list of 22 candidates was published wherein the petitioner's name was reflected at serial no. 13. Since no member of Scheduled Castes, belonging to the Uttarakhand Andolankari category had applied, only 08 posts, earmarked for the Scheduled Castes, was required to be filled up from the said category. The petitioner's complaint is that, since only 08 Scheduled Caste candidates were selected, all eight of them should have been appointed in the 08 posts earmarked for the Scheduled Castes; and appointment of one of the eight Scheduled Caste candidates, to posts earmarked for the general/unreserved category, had resulted in the petitioner, a general category candidate, being deprived of the opportunity of being appointed to said post.

Reliance is placed by Sri Pankaj Miglani, learned counsel for the appellant-writ petitioner, on the government proceedings dated 19.02.1981, relating to the counting of Service Group Reservation for candidates selected in the competitive examination, which deals with cases where Scheduled Caste candidates are selected in excess of the quota earmarked in their favour.

In the order under appeal, the learned Single Judge took note of the contents of the Government Order dated 19.02.1981, and observed that, in terms thereof, reserved candidates were to be selected from the bottom of the merit list keeping in view the vacant posts in their respective categories; reserved candidates, who secured higher position in the merit list along with the other unreserved candidates, were to be given appointment against unreserved posts; and candidates from lower merit were to be given appointment against reserved posts. The learned Single, then, observed that the petitioner was not entitled to be appointed under the general category, to a post occupied by the Scheduled Castes, on his merit; and since he stood at 13th in the overall merit list, and the first 12 (including 01 member from the Scheduled Castes) had secured higher marks than him, they were rightly appointed to the post of Forest Constable (Van Aarakshi).

Sri Pankaj Miglani, learned counsel for the appellant-writ petitioner, would submit that the understanding of the learned Single Judge, on the scope and purport of the Government Order dated 19.02.1981, is erroneous; it is only in case where the number of Scheduled Caste category candidates are selected in excess of the quota prescribed for the said category, are those, who are found to be in excess, required to be adjusted against posts in the general category; in the present case, since there were only 08 selected candidates from the Scheduled Castes, and there were 08 posts earmarked in their favour, it was wholly unnecessary for the State to adjust one of these Scheduled Caste candidates in posts under the general/unreserved category; and, consequently, the said Scheduled Caste candidate should be adjusted against the quota earmarked in favour of the Scheduled Castes, and the post, vacated by him in the general category, should be filled up appointing the petitioner to the said post.

We must express our inability to agree as the very premise, on which these contentions are based, is flawed. The premise that posts under the unreserved/or the general category are available only to those who do not belong to the reserved category (Scheduled Castes, Scheduled Tribes & OBC) is erroneous. All candidates, irrespective of their caste/category status, are eligible to compete to posts in the general /unreserved category strictly in the order of merit. In the present case, 01 candidate, from the Scheduled Castes category, stood 8th in the overall merit list, and was therefore appointed to one of the 12 posts under the general/unreserved category. Consequently, 07 of the remaining selected candidates from the Scheduled Castes category were appointed to 07 of the 08 posts earmarked for the Scheduled Castes, and the remaining one post earmarked for the Scheduled Castes was, evidently, carried forward to the next recruitment.

Accepting the submission of Sri Pankaj Miglani, learned counsel for the appellant-writ petitioner that Scheduled Caste candidates must first be appointed to posts earmarked in their favour, and only if they are found in excess should they be adjusted against posts under the general/unreserved category, would result in communal reservation; and require general/ unreserved category posts to be treated as those earmarked for persons other than those from the reserved category. Vertical reservation, in favour of the socially and educationally backward sections of society, is in addition to merit. It is only after candidates are first selected strictly in the order of merit, would those lower in merit, and belonging to the reserved category, then be required to be adjusted against posts earmarked in their favour. The candidate, who stood 8th in the overall merit list, was rightly selected and appointed as general/unreserved category candidate strictly in the order of merit, and not on the basis of his caste status or to posts earmarked for the Scheduled Castes. The respondents were justified in treating the said individual as a general/unreserved category candidate, and in filling up 07 of the 08 posts earmarked in favour of the Scheduled Castes from among the Scheduled Castes, and in carrying forward the other post, reserved in favour the Scheduled Castes, to the next recruitment. The Government order dated 19.02.1981 deals with the manner in which Scheduled Caste candidates should be allotted, if the selected Scheduled Caste candidates exceed the quota earmarked/reserved in their favour. The converse is the situation prevailing in the present case. The Government Order dated 19.02.1981 has, therefore, no application.

Interference in an intra-Court appeal would be justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in the order under appeal. The appeal fails and is, accordingly, dismissed. No costs.