BABLI GAUR AND OTHER vs UTTARAKHAND PUBLIC SERVICE COMMISSION HARIDWAR

K .M. Joseph, C.J

Since common questions arise in these writ petitions, we are disposing of the same by the following common judgment:

Petitioners are all women. They claim to have Domicile in the State of Uttarakhand. They applied pursuant to an advertisement, which was

issued by the Uttarakhand Public Service Commission inviting applications for filling up various vacancies of Assistant Professors in various

disciplines. They have approached this Court complaining that though they have secured more marks than the cut off marks fixed for the candidates

to be called for interview for the respective posts, in regard to which, there is a reservation for the women from the State of Uttarakhand, they are not

being called for the interview and, accordingly, they have approached the Court seeking a direction to grant the benefit of horizontal reservation under

the Uttarakhand Women quota and to treat them as selected for the post of Assistant Professor as they have obtained higher marks than the cut off

marks. Â

The stand of the respondent Commission, apparently, has been that the petitioners have not claimed the benefit of horizontal reservation in the

Application forms and, hence, their claims cannot be considered. Â

We treat Writ Petition No. 130 of 2018 (S/B) as the leading case. Â

We heard Mr. Rakesh Thapliyal, learned counsel for the petitioner therein. He also appears for the petitioner in Writ Petition No. 131 of 2018

(S/B). We further heard Mr. Sanjay Bhatt, learned counsel for the petitioners in Writ Petition Nos. 161, 142 and 170 of 2018 (S/B). We also

heard Mr. Syed Nadim, learned counsel for the petitioner in Writ Petition No. 136 of 2018 (S/B). Besides, we also heard Mr. Bhuwan Bhatt,

learned counsel for the petitioner in Writ Petition No. 154 of 2018 (S/B). Â

In all these cases, as we have already noticed, the petitioners are women candidates having Domicile of the State of Uttarakhand. Â

Mr. Rakesh Thapliyal, who led the arguments on behalf of the petitioners and whose arguments, in fact, have been adopted in other cases, would

contend with reference to the Application form, which has been given and which has been referred to in that writ petition, that in the Application

form, the petitioner has clearly indicated that the petitioner is a ‘female’.  It is further indicated in the Application form that she has

‘Domicile in the State of Uttarakhand’. He points out Clause 10 of the Advertisement, a translation of which has been made available to us,

which reads as under:

 “(10) Reservation : Vertical and horizontal reservation will be admissible to the residents of State of Uttarakhand only on the basis of prevailing

Government Orders issued by the Government. For complete details see the website of the Commission www.ukpsc.gov.in. (A) The candidates

belonging to Scheduled Caste, Scheduled Tribes, Other Backward Class, EXservicemen, physically challenged (handicapped), dependent of freedom

fighter and woman category, who are not resident of the State of Uttarakhand shall not be admissible the benefit of reservation. Such candidates

can apply only under the unreserved (general) category. (B) In case a candidate claims for reservation on more than one sub-category then he will

be entitled to get the benefit of only that sub-category which is more beneficial to him.â€​

On the basis of the said Clause, the case which is sought to be developed is that there are two mandatory conditions to get the benefit of horizontal

reservation, and those mandatory requirements have been fulfilled by the petitioner insofar as she has given a declaration in Gender as ‘Female’

and ‘Domicile of Uttarakhand’ as ‘YES’. It is the further case of the petitioner that though there is mention of category / sub category

in the Application Form, mentioning of the category details is not mandatory as the category details can be gleaned from the perusal of other contents

of the Application as aforesaid, namely, ‘Gender’ and ‘Domicile’. He would further submit that in his case, the candidate has secured

153 marks; whereas 121 marks is of the last selected candidate; whereas in Writ Petition No. 131 of 2018 (S/B), the petitioner has got 118.50 marks

out of 200; whereas the last selected candidate has secured only 100 marks. They also sought to derive support from the judgment of the Rajasthan

High Court in the case of Neetu Harsh vs. State of Rajasthan and others reported in 2017 SCC OnLine Raj 2758. Â

Mr. Rakesh Thapliyal would further submit that a perusal of the Application form would show that wherever questions are marked with

‘Asterix’ (*), they are mandatory. ‘Asterix’ (*) is not present in regard to Column “category / sub categoryâ€, therefore, he would

submit that it was not mandatory to fill up that column. Â

Mr. Sanjay Bhatt, learned counsel for the petitioners, who also adopted the arguments advanced by Mr. Rakesh Thapliyal, would further add that

a mere mistake committed should not result in deprivation of the right of horizontal reservation-the conditions for obtaining which the petitioners

fulfilled.  He would further contend that the selection procedure is still on going. He expands it by pointing out that selection procedure consists

of successfully undertaking the written examination, which the petitioners have all done and they have secured higher marks than the cut off marks in

the category concerned and they only may be permitted to undertake the interview, which is the next stage of the selection procedure.Â

Mr. Syed Nadim and Mr. Bhuwan Bhatt, learned counsel also adopted the arguments of Mr. Rakesh Thapliyal. Â

Per contra, Mr. B.D. Kandpal, learned counsel for the Commission would first draw our attention to Clause 1 of the advertisement.  Roughly

translated, there is reference to the judgment passed in Special Appeal No. 79 of 2010 Radha Mittal vs. Uttarakhand and it is indicated that the

candidates must, if they claim horizontal or vertical reservation, necessarily indicate their categories / sub categories. It is stated that in case, it is not

done, then in terms of the judgment of the High Court, they will not be entitled to the benefit of the reservation. He also draws our attention to

Clause â€" 6 of the advertisement, which forbids entertainment of any application for correction of details, inter alia, relating to reservation. Â

Mr. B.D. Kandpal, learned counsel for the Commission would rebut the argument about question being mandatory only if there is an Asterix (*) by

pointing out that ‘Asterix’ (*) is found in regard to the columns relating to essential qualifications.  He would further submit that for claiming

the benefit of reservation, the indication of the subcategory was a must. He further draws support from another important circumstance and that is

the issuance of the Admit Cards. The Admit Cards in Writ Petition No. 130 of 2018 (S/B) would show, how the mind of the Commission has

worked.Apparently, acting on the basis of the particulars furnished in the Application form (which it may be indicated was an online Application form),

Admit Cards have been issued, wherein the sub category is not mentioned and what is mentioned is only the category, namely, ‘general’, which

is, as found in the online Application. So, the Commission even at the stage of issuing Admit Cards for holding of the written examination

understood the contents of the Application as being one where the category claimed is ‘general’ and no claim for horizontal reservation based

on the sub-category was indicated. He would also necessarily rely on the Bench decision of this Court in Special Appeal No. 76 of 2010 and he

would submit that the matters in these cases are covered by the dicta in the said judgment.  We deem it appropriate to refer to the judgment in

Special Appeal No. 76 of 2010, following which Special Appeal No. 79 of 2010 was dismissed:

 “The appellant responded to an advertisement for the posts of Assistant Review Officers/Review Officers. Each applicant was required to

respond to the advertisement by filling up an OMR sheet. Column No.6 of the OMR sheet was filled up by the appellant depicting that she was a

female. Additionally, column No.8 was filled up by the appellant affirming that she was a domicile of the State of Uttaranchal. In the process of

selection she was evaluated. Consequent upon the determination of the respondents not to appoint the appellant against the advertised posts, she

approached this Court by filing Writ Petition (S/S) No. 313 of 2010. The pointed contention of the appellant before the learned Single Judge, who

adjudicated upon Writ Petition (S/S) No.313 of 20120, was that the appellant having expressly depicted in the OMR sheet, that she was a female

domiciled in the State of Uttaranchal, her candidature was bound to be considered against the seats reserved for females from Uttaranchal. While

declining the aforesaid prayer made by the appellant, the learned Single Judge, while disposing of the aforesaid writ petition, vide an order dated

05.05.2010 recorded that the appellant had not applied for being considered by way of reservation, and as such, she could not be considered for the

reserved category of females domiciled in the State of Uttaranchal.Â

Dissatisfied with the order passed by the learned Single Judge, disposing of Writ Petition (S/S) No. 313 of 2010, the appellant has again approached

this Court through the instant Special Appeal. Yet again, the pointed contention of the learned counsel for the appellant is, that it was repetitive for the

appellant to fill up column No.12 which pertains to various categories of reservation, inasmuch as, the appellant having earlier recorded in the OMR

sheet, that she was a female domiciled in the State of Uttaranchal, she was liable to be considered for the reserved category of UF i.e. Uttaranchal

Females based on her response to column Nos. 6 and 8 of the OMR sheet.Â

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, inasmuch 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.Â

For the reasons recorded hereinabove, we find no merit in the instant special appeal and the same is accordingly hereby dismissed.â€​Â

The case of the petitioners in the light of the judgment in Special Appeal No. 76 of 2010, which has been followed in Special Appeal No. 79 of

2010, is that the said judgment is distinguishable. It is contended by Mr. Rakesh Thapliyal, learned counsel for the petitioners that in the said case,

the Court may notice, the Division Bench had before it OMR sheets; whereas in these cases, the application is in the form of online application.Â

Next, he would point out that there is a crucial distinction. In that case, the contents of OMR Sheets, where there was a specification of the

subcategories in the OMR Sheets, there is no expansion of the word ‘subcategory’ in the application form and the subcategories are not

indicated clearly.  Mr. Rakesh Thpaliyal would also point out that one amongst the other subcategories, namely, ‘physically handicapped’

has been specifically articulated in the online application form; whereas other subcategories are not articulated. Therefore, he would submit that no

reliance can be placed on the said judgment. Â

What is sought in these writ petitions is a writ of mandamus asking the respondent / Commission to consider them as qualified for being called for

the interview on the basis that they have secured more marks than the marks obtained by the last selected candidate within the subcategory

concerned, namely, ‘Uttarakhand women’. The respondent in this case is Uttarakhand Public Service Commission. Public Service

Commission is a constitutional body. It is clothed with the responsibility of conducting recruitment to various posts. It issued an advertisement. In

Clause -1 of the advertisement, which we have adverted to, in no uncertain terms, the Commission has communicated to the candidates that the

candidates (who wish to claim benefits of reservation) must claim the benefit of horizontal or vertical reservation and with the details. It is

unambiguously stipulated that if application is not forthcoming with the details relating to the subcategories, as contemplated in the judgment in Special

Appeal No. 79 of 2010, the claim will not be entertained. Mr. Rakesh Thapliyal, learned counsel for the petitioners made an attempt to get over this

by pointing out that they are merely guidelines. A clear caution was sounded in Clause-1 about which there cannot be any room for ambiguity.Â

We are of the view that this cannot be brushed aside as a mere guideline. In this context, we should also remind ourselves that a claim for

reservation is one, which must be made, as provided. Essentially, in these cases, the bone of contention would be as regards the method of making a

claim for reservation.  16. On the one hand, the case of the petitioners is that it suffices that they made a claim in the manner they have done,

namely, that they have indicated that they are women and that they have domicile of the State of Uttarakhand and the reservation in the subcategory

is for women having domicile of the State of Uttarakhand. There is no quarrel with the same, but the question is, is giving these details sufficient for

the petitioners to claim reservation? Undoubtedly, in the application form, after the column, where the gender of the candidate is indicated and the

domicile is mentioned, there is a column, which provides for category and subcategory. As against the subcategory, in all these cases, there is a

resounding silence by the petitioners, whereas against the word ‘category’, they have all mentioned ‘General’. This means, they have

understood that they have to answer the word ‘category’ as ‘General’, but may be by a mistake or otherwise, they have admittedly

omitted to give any answer to subcategory. It is the effect of this that we have to answer. Â

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.Â

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.Â

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. Â

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.Â

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. Â

Mr. Rakesh Thapliyal, learned counsel for the petitioners would point out that in the application form, there is specific reference of ‘Physically

Handicapped’ persons, whereas there is no reference to other subcategories. We are of the view that this argument has no merit in it. This is

for the reason that the mere mentioning of ‘Physically Handicapped’ person, but the non-mentioning of the subcategory in question specifically

would not exonerate a candidate from the responsibility of laying express claim under the subcategory when the subcategory under which a candidate

is applying is known to her, which in these cases is ‘Uttarakhand Female’. Â

The attempt made by the petitioners to draw support from the judgment of the Rajasthan High Court also does not appeal to us. Incidentally, we

may notice that, that was a case, which involved a ‘Physically Handicapped’ person and the Court sought to draw support from the salutary

provisions of the Persons with Disabilities (Equal Opportunities, Protection and Rights and Full Participation) Act, 1995, but if it is to be understood as

laying down a proposition not consistent with what we have reasoned, we have no hesitation in saying that we cannot subscribe to the view as such.Â

It is significant to notice that the petitioners themselves accepted the fact that they have not been considered in the selection procedure in the

subcategory as they have sat for the written examination on the strength of the Admit Cards where they were not shown in the subcategory to which

they allegedly belong. Â

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. Â

Mr. Rakesh Thapliyal, learned counsel for the petitioners pointed out that the persons, who have been selected for the interview from the

subcategory do not have a legal right and the Public Service Commission can only have a recommendatory role. We are of the view that neither of

these things can have an impact on the rights of the petitioners to be considered for interview. Â

The upshot of the above discussion is that there is no merit in any of the writ petitions; they will stand dismissed without any order as to cost. Â