Brijendra Deo Mishra vs Public Service Commission, U.P.

R. Dayal, J.—The Public Service Commission, U.P. issued an advertisement bearing number A-1/E-1/94-95 for Combined State/Upper Subordinate Service (Preliminary) Examination, 1994 notifying 375 vacancies which later became 384. The Petitioner appeared in the aforesaid examination but was not declared successful for the main examination. He has claimed himself to be a dependant of a Freedom Fighter, Sri. Badri Pal Mishra, being his grandson, and has asserted that since the Respondent-commission, fixed 40% marks as pass marks in preliminary examination and he has secured more than that percentage, he ought to have been declared successful, as the dependants of freedom fighters are entitled to reservation of 2% of the vacancies in view of the provisions of Section 3 of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereinafter referred as 1993 Act) and of the Government Order No. 18/1/95-Ka-2/95, dated 4.3.1995 issued by the Secretary to U.P. Administration.

In order to appreciate the controversy involved, it is necessary at this stage to refer to the relevant statutory provisions and also the Government orders. Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (hereinafter referred as 1994 Act) provides for reservation in favour of persons belonging to these classes in public services and posts at the stage of direct recruitment as per following percentage of vacancies:

(a) in the case of Scheduled Castes-21%,

(b) in the case of Scheduled Tribes-2%,

(c) in the case of other Backward Classes of citizen 27%.

Section 3 of the 1993 Act provides for reservation of vacancies in favour of physically handicapped, dependents of freedom fighters and Ex-Servicemen. Sub-sections (1) to (3) of Section 3 which are material for the present case, read as under:

(1) In public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacancies at the stage of direct recruitment in favour of-

(i) physically handicapped,

(ii) dependents of freedom fighters, and

(iii) ex-servicemen.

(2) The respective quota of the categories specified in Sub-section (1) shall be such as the State Government may from time to time determine by a notified order.

(3) The persons selected against the vacancies reserved under Sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments: if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; If he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments.

A notification bearing No. 18/l/95-Ka-2/95, dated 4.3.1995 was issued by the State Government in exercise of the powers conferred by Section 3(2) of 1993 Act providing for reservation quota for the three categories mentioned in Sub-section (1) as under:

(1) Physically handicapped - 2% (2) Dependants of freedom fighters - 2% (3) Ex-Servlcemen - 1%

The Petitioner has alleged that after declaration of preliminary examination result, the commission disclosed the following vacancies:

Deputy Collector 15

Dy.S.P. 34

Superintendent Jails 2

A.L. Comr. 2

T.O. /AO. 15

D.C.H.G. 5/73

B.D.O. 261

E.E.O. 3

D. Panchayat Ofr. 5

Asstt. E.E.O. 12

A.A.O. 30/311

Total 384

He has urged that if reservation at 2% admissible for the dependants of freedom fighters (D.F.F.) is calculated, there should be one post reserved for them in the State services and sic posts in the upper subordinate services. He has claimed a writ of mandamus, order or direction in the nature of mandamus commanding the Respondent, the Public Service Commission, U.P. to admit the Petitioner as a D.F.F. candidate to the Combined State/Upper Subordinate Services (Main) Examination, 1994 and also some other consequential reliefs. The Respondent has admitted In Its counter-affidavit that 40% marks was fixed as a policy decision to make a candidate eligible to be considered for the main examination of 1994, but has asserted that the candidates are called as per the merit list in the ratio of 1: 25 per vacancy and since sufficient numbers of candidates were not available In the scheduled caste category, all the candidates belonging to that category who secured 40% marks were admitted to the main examination of 1994, but in the other categories merit of the last candidate called was very high.

According to the Commission the Petitioner is a general category candidate and in that category the last candidate called for main Examination-1994 secured above 70% marks and since the Petitioner got less marks than those obtained by the last successful candidate in that category, he could not be declared successful for the main examination. Further, the Commission has stated that firstly the vacancies are divided into three reserve categories, i.e., Scheduled Castes, Scheduled Tribes and other backward classes and one general category and after that the reservations for D.F.F., physically-handicapped and ex-servicemen are calculated in the respective category. For example, if there are 34 posts of Dy.S. Ps., reservation for three reserve categories and one general Category would be as under:

Scheduled Caste - 7 Scheduled Tribes - 1 Other Backward Classes - 9 General � - 17

After that, quotas of D.F.F., physically-handicapped and ex-servicemen are fixed in their respective caste category. As such, there would be no reservation for D.F.F. candidates in general category, since 2% of 17 posts come to 0.34%, which is less than 0.50%. Further, it is alleged that the Supreme Court has observed that reservation quota cannot exceed 50% and if the reservation for D.F.F., physically handicapped and ex-service personnel is not calculated in the above manner the reservation quota would exceed 50%.

We have heard Sri. Yar Mohammad. Advocate, for the Petitioner and Sri. V.M. Sahai, Advocate, for the Respondent.

The main question that falls for decision is whether quotas for D.F.F., physically handicapped and ex-servicemen are to be calculated as a percentage of total vacancies in a particular service or as a percentage of the vacancies in the respective category, (i.e. Scheduled Castes, Scheduled Tribes and other Backward Classes or General) to which the candidate belongs. Sub-section (I) of Section 3 of 1993 Act provides reservation for the physically handicapped, D.F.F. and Ex-servicemen at 5% of the vacancies, in other words, as a percentage of the total vacancies. After the persons are selected against the vacancies reserved under Sub-section (1) of Section 3, they are under Sub-section (3) of Section 3 to be placed in appropriate category to which they belong. For example, if a selected person belongs to Scheduled Caste category, he is to be placed in that quota by making necessary adjustments. Similarly, if he belongs to open competition category, he is to be placed in that category by making necessary adjustments. A combined reading of Sub-sections (1) and (3) makes it clear that the quotas of the vacancies for physically handicapped, D.F.F. and ex-seivicemen are to be calculated as a percentage of total number of vacancies and it is after the persons are selected against the vacancies reserved under Sub-section (1), they have to be placed in the respective caste category by making necessary adjustments.

Our interpretation is in accordance with para 95 of the Supreme Court decision in Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., . which reads as under:

We are also of the opinion that this ruie of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this Juncture: 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 inter-locking 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 this quota will be placed in the appropriate category if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, If he belongs to open competition (O.C.) 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. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.

It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be-indeed cannot be applicable to exemptions, concessions or relaxations, if any, provided to ''Backward Class of Citizens'' under Article 16(4).

We see no Justification for the view expressed by the Commission that if quota of reserved vacancies stipulated in Section 3(1) and the notification issued u/s 3(2) of 1993 Act is calculated as a percentage of the total number of vacancies and if after the persons selected against the vacancies reserved under Sub-section (1) are placed In the appropriate categories to which they belong, reservation will exceed 50% of the total vacancies. Our view also finds support from the decision of a Division Bench of this Court rendered on 8.7.1996 in Civil Misc. Writ Petition No. 12916 of 1996, Sheo Shanker Singh v. Public Service Commission. U.P.,where three vacancies were reserved for ex-servicemen, but they were divided in such manner that one vacancy was for general ex-servicemen, another for scheduled caste ex-servicemen and the remaining one was for other Backward Class Ex-servicemen. It was held that dividing "vacancies reserved for ex-servicemen and allocating them to Scheduled Castes, Scheduled Tribes, Backward Classes and General Candidates is without jurisdiction. All Ex-Servicemen, who applied against their reserved quota have to be treated as persons belonging to the one and the same class and all of them are to be considered against all the vacancies reserved for them strictly on the basis of the merit irrespective of the caste/class to which they belong."

In the result we allow the petition and direct the Respondent. The Public Service Commission, U.P. to process the matter about admission of the Petitioner as a dependant of a freedom fighter to the combined State/Upper Subordinate Service Main Examination, 1994 by calculating the number of vacancies reserved for the candidates of the dependants of freedom fighters at 2% of the total number of vacancies in each services. There shall be no order as to cost.