Dr. Kapil Sharma vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This application is filed seeking review of the order passed by us in Writ Petition (S/B) No. 189 of 2018 dated 12.04.2019. The review applicant herein had filed the said writ petition claiming reservation under the category of dependents of Freedom Fighters for appointment to the post of Assistant Professor (Shalya Tantra).

63 posts of Assistant Professors were advertised in 23 different departments of the respondent-University, and applications were invited from eligible candidates. The review applicant was eligible to be considered for appointment only to the post of Assistant Professor (Shalya Tantra), for which 05 posts were advertised. Of these five posts, 01 post was in the General category, 01 was reserved in favour of the Other Backward Classes, 02 were reserved in favour of the Scheduled Castes category, and 01 was reserved in favour of the Scheduled Tribes category. The review applicant belonged to the General category. Eligible candidates were called for interview in the ratio of 1:5, i.e. for the sole post of Assistant Professor (Shalya Tantra) in the General category, the five most meritorious candidates were called for interview. The review applicant stood at serial no. 19 in the merit list of candidates, in the General category, being considered for appointment to the post of Assistant Professor (Shalya Tantra) and was, therefore, not called for interview.

We had, in the order under review, noted the contentions of Mr. K.P. Upadhyay, learned counsel for the review applicant, that a separate list of dependents of Freedom Fighters should have been prepared, and appointment to the posts of Assistant Professors should have been made strictly in the order of merit from among those candidates whose names were found in the list of dependents of Freedom Fighters, irrespective of whether or not a candidate in the said list was eligible to be considered for appointment to the post of Assistant Professor in that particular department.

We had, thereafter, observed that accepting the submission of Mr. K.P. Upadhyay, learned counsel for the applicant-petitioner, would mean that a merit list of dependents of Freedom Fighters, cutting across all departments, should be prepared from among all candidates eligible for appointment under the General category; only 01 post of Assistant Professor was available, for the General category, in the department of Shalya Tantra; the respondent-University had called candidates in the ratio of 1:5, i.e. five most meritorious candidates were called for interview for appointment to the sole post of Assistant Professor (Shalya Tantra) in the general category; there were thirteen more meritorious candidates above the review applicant in the merit list; the principle of vertical reservation could not be made applicable to horizontal reservation; and appointment to a post, under the category of dependents of Freedom Fighters, could not be claimed, more so as 2% of 01 post is 0.02%, and there was no need to reserve the single available post in the General category in favor of dependents of Freedom Fighters.

This application, seeking review, is filed on the ground that we had not noticed the provisions of the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (for short the "Act"), and the law laid down by the Supreme Court, in Rajesh Kumar Daria Vs.Rajasthan Public Service Commission and others : (2007) 8 SCC 785, while passing the order under review dated 12.04.2019.

Mr. K.P. Upadhyay, learned counsel for the review applicant, would submit that, if 02% horizontal reservation for dependents of Freedom Fighters is provided department-wise, it would result in a situation where this category of reservation will never be implemented, for it is only if 50 posts are available in the post of Assistant Professors in each department, would 02% thereof constitute one post; and there is no department, in the respondent-University, which has a cadre strength of 50 Assistant Professors.

Section 3 of the Act, on which reliance is placed by Mr. K.P. Upadhyay, learned counsel for the review applicant, relates to the reservation of vacancies in favour of several categories. Under Section 3(1)(i-a) thereof, 02% of the vacancies are required to be reserved for dependents of Freedom Fighters. Section 3(3), on which emphasis is placed by the learned counsel for the review applicant, reads as under:

"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 Other Backward Classes of Citizens, 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."

All that Section 3(3) of the Act stipulates is that vacancies, reserved under Section 3(1) of the Act, shall be placed in the appropriate categories to which they belong; and, if a person belongs to an open category, he will be placed in that category by making necessary adjustments. Placing reliance on this provision Mr. K.P. Upadhyay, learned counsel for the review applicant, would contend that, irrespective of the departments, a separate list of dependents of Freedom Fighters, cutting across all departments, should have been prepared, and candidates arranged in the order of their inter-se merit; and since 02%, of the total advertised 63 posts, would require at least 01 post to be reserved in favour of dependents of Freedom Fighters, the most meritorious candidate in the said list should have been extended the benefit of reservation.

As noted hereinabove the advertisement was issued for 63 posts in 23 departments of the respondent-University. Candidates, eligible to be considered for appointment to the post of Assistant Professor in one department, were ineligible to be considered for appointment to the posts of Assistant Professors in other departments, since the qualifications prescribed for appointment as an Assistant Professor in one department was different and distinct from others. The review applicant was, admittedly, eligible only to be considered for the post of Assistant Professor (Shalya Tantra), and not for the post of Assistant Professor in any of the other 23 departments.

The submission regarding preparation of a common merit list of dependents of Freedom Fighters, cutting across all departments, is based on the premise that the merit of each candidate, irrespective of the department in which he is eligible to be appointed as an Assistant Professor, is comparable. The fallacy in this submission can be better explained by way of an illustration. Let us take the post of Assistant Professors in different subjects, like say Mathematics, History, English etc. While a student of Mathematics can secure 100% marks, a student of History or English is seldom awarded such marks. Preparing a common merit list of candidates would result in candidates, who possess the prescribed qualification in Mathematics, being automatically placed above candidates, who have the prescribed qualification in History or English, in the common merit list of dependents of Freedom Fighters from all the 23 departments of the respondent-University.

A common merit list is prepared for one homogenous class. Candidates, seeking appointment as Assistant Professor in each department, constitute a homogenous class, and not candidates seeking appointment as Assistant Professors in different departments. Candidates eligible to be considered for appointment as an Assistant Professor in one department alone, and not in any of the other 22 departments, cannot, merely for the purpose of providing reservation in favour of dependents of Freedom Fighters, be clubbed together, and be placed in one common merit list, for reservation in this category to be provided on their inter-se merit prepared on the basis of the marks secured by them in their respective subjects. This submission of Mr. K.P. Upadhyay, learned counsel, also ignores the fact that 02% horizontal reservation, in favour of dependents of Freedom Fighters, cannot be confined only to the general category, but would also be available for other categories such as the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes. As to how, preparation of one common merit list cutting across all departments, would enable horizontal reservation to be provided for these categories also, has not been explained.

Reliance placed by the review applicant on the judgment of the Supreme Court, in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others : (2007) 8 SCC 785, is also misplaced. The Supreme Court, in the said judgment, has given an illustration of the manner in which horizontal reservation should be provided in favour of women. The Supreme Court pointed out that, if 30 posts are available for members of the Scheduled Castes, one-third thereof is required to be reserved in favour of women i.e. there should atleast be 10 women candidates, from the Scheduled Castes category in the merit list of 30 candidates from the Scheduled Castes category. The action of the respondents therein, in breaking up these posts as 21 posts for men and 09 posts for women, was faulted and it was pointed out that there was no reservation in favour of men even in the Scheduled Castes category, and all the 30 posts were available for both men and women. The law laid down by the Supreme Court is that, in case 10 women are not to be found in the merit list of 30 Scheduled Castes candidates, then the last Scheduled Caste (male) candidate in the said merit list must give way; and, in his place, the next most meritorious candidate, belonging to Scheduled Castes (Women) category, should be appointed.

In Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others : (2007) 8 SCC 785, the Supreme Court was examining a case where there was a common competitive selection process. The situation, in the present case, is different. Candidates eligible to be considered for appointment as an Assistant Professor in one department, are ineligible to be considered for appointment as an Assistant Professor in any of the other 22 departments. It would be difficult for us, therefore, to accept the submission that all candidates, falling under the category of dependents of Freedom Fighters, from 23 different and distinct departments, should be clubbed together, they should then be arranged in the order of their inter-se merit, (the basis on which such a merit list should be prepared has not been explained), and the benefit of 02% horizontal reservation, provided in favour of dependents of Freedom Fighters, should be extended to the most meritorious of these candidates.

The fallacy in this submission, as noted hereinabove, is the premise that the marks secured by a candidate, who seeks appointment as an Assistant Professor in one subject, is comparable with the marks secured by another candidate, who seeks appointment as an Assistant Professor in another subject.

We, however, find considerable force in the submission of Mr. K.P. Upadhyay, learned counsel for the review applicant, that applying horizontal reservation in favour of the dependents of Freedom Fighters department-wise has resulted in reservation, for this category, not being extended at all in the respondent-University.

As the learned counsel has pointed out, in our opinion rightly so, there is no department in the respondent-University which has a cadre strength of 50 Assistant Professors, for it is only then would 02% of 50 posts constitute one post for which reservation can be provided under this category. While reservation, in favour of dependents of Freedom Fighters category, must undoubtedly be provided, the manner in which such provision should be made is a matter for the respondent-University to examine. The respondent-University must lay down a fair and reasonable procedure of providing reservation for dependents of Freedom Fighters, and ensure that the 02% reservation to which they are entitled to, is extended to them. That would, however, not justify the review applicant's claim that reservation should have been provided in his favour, and he should have been appointed as an Assistant Professor (Shalya Tantra) under the dependents of Freedom Fighters category.

Subject to the aforesaid directions, in terms of which the respondent-University is required to examine and prescribe a fair, reasonable and transparent procedure extending 02% reservation in favour of dependents of Freedom Fighters, we see no reason to interfere with the order under review.

The review application is, accordingly, dismissed. No costs.