Harsh Shandil vs State Of H.P. & Others

Satyen Vaidya, J

The  instant  petition  has  been  filed  for  the following substantive reliefs:-

“i) That the original application of the applicant may kindly be allowed throughout with cost and the respondents may kindly be directed to consider the candidature of the applicant for the posts of Constable (Driver Male) since three posts are still lying vacant and justice be done.

ii) That the respondents may kindly be directed to fill up the remaining three posts of Constable (Driver Male) and the applicant may kindly be offered the appointment as Constable (Driver Male) and justice be done.”

The 3rd respondent vide advertisement notice invited applications from the eligible candidates for the posts of Constable (Driver Male) to be recruited in Himachal Pradesh Police Department.

Total 112 posts of Constable (Driver Male) were shown vacant. Out of 112 posts of Constable (Driver Male), 9 posts were allocated to District Solan on population percentage basis. The breakup of these 9 posts was as under: -

Category

Category

Breakup  of posts      as per  vertical reservation

Breakup of posts as per horizontal reservation

Ex. service men

Antodaya/ IRDP

Sport s men

Wards of freedo m

fighters

Home Guard s 15%

Other s

General

4

-

-

-

-

1

3

SC

2

1

1

-

-

-

-

ST

1

-

-

-

-

-

1

OBC

2

-

-

-

-

-

2

Total

9

1

1

-

-

1

6

The petitioner belongs to general category. Petitioner being eligible applied for the post of Constable (Driver). He qualified the physical test and was called for interview. However, petitioner did not find his name in the final select list.

Only 6 posts of different categories were filled in District Solan, whereas remaining 3 posts out of which 2 posts were reserved for OBC (UR) and one post reserved for SC (Ex-servicemen) remained unfilled.

Having remained unsuccessful, petitioner has filed the instant petition for the reliefs, as noticed above. His contention is three-fold. Firstly, the selection process exceeded ratio of reservation beyond 50%, secondly, by correct application of the reservation, 5 posts should have been allocated to general category and thirdly, the breakup of the posts for Solan District was not made available in the advertisement published by the respondents.

In the above background, the petitioner has made allegations of arbitrariness and discrimination against the respondents.

By way of reply filed to the petition, the respondents have contended that the notification dated 21.3.2015, issued by 4th respondent clearly mentioned the breakup of the posts of Constable (Driver) for District Solan. It has been admitted that out of 9 posts of Constable (Driver) in District Solan only 6 posts were filled. As per respondents, the distribution of the posts had been made to the districts on population percentage basis as per provisions laid down in Clause-2 of Appendix 12.12A, notified by the Government of Himachal Pradesh vide notification dated 11.3.2011. It has also been stated that since the posts reserved under vertical-horizontal basis could not be filled within that category, hence the posts were to remain vacant.

During the hearing of the matter, the respondents were directed to reveal as to how the reservation had been applied with respect to recruitment of Police Constable (Driver) at district level. In response, the respondents have stated that the posts of Constables are sanctioned by the State Government for the entire State and not for a particular district. Out of total 112 advertised posts of Constable (Driver), 50 posts were reserved for SC/ST/OBC and 62 posts for general category and for such reason, it has been contended that the reservation had not exceeded above 50%.The posts were further divided/allocated to the districts as per the population percentage. In order to determine the roster point, register has been prepared, following 200 points. As per population percentage ratio 9.42 i.e. 9 posts of Constable (Driver) were allotted to District Solan and roster points between 95 to 103 were applied. As per respondents, the roster points were applied alphabetically district wise. In this manner, it is sought to be justified that as per applicable roster point four posts in the share of UR, 2 posts each in the shares of SC and OBC and 1 post fell in the share of ST for Solan District.

I have heard learned counsel for the parties and have also gone through the record carefully.

It cannot be disputed that the reservation in the matter of public employment cannot normally exceed 50%. In Indra Sawhney & others vs. Union of India & others, 1992 (3) (Suppl.) 217, the nine Judges Constitutional Bench of Hon’ble Supreme Court has laid down the principle as under:-

“809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.

While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in farflung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

In Dr. Jaishri Laxmanrao Patil vs. Chief Minister & others, 2021 (8) SCC, 10 the Constitutional Bench of Hon’ble Supreme Court has reiterated the principle as under:-

“688.2. The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. 50% is reasonable and it is to attain the object of equality. To change the 50% limit is to have a society which is not founded on equality but based on caste rule”.

The question, as to how the constitutional mandate of limiting the reservation to 50% should be applied and maintained, also finds answer in following extract of Indira Sawhney:

“814. The next aspect of this question is whether a year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji does not deal with this aspect but Devadasan does. Mudholkar, J speaking for the majority says :

“We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.”

On the other hand is the approach adopted by Ray, CJ in Thomas . While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, CJ would not be consistent with Article 16. True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go i.e., in a year or two. The position can be better explained by taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e., 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a short fall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all backward classes reaches 500 i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number vacancies arising each year are not many. Meanwhile, the members of open competition category would become age barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.”

The principle laid down in Indra Sawhney (supra) was explained by three Judges Bench of Hon’ble Supreme Court, in Nair Service Society vs. District Officer, Kerala Public Service Commission & others, 2003 (12) SCC 10 in following manner:-

“33. This Court in the case of Indra Sawhney etc. etc. vs. Union of India and Others etc. etc. reported in AIR 1993 SC 477, held that the reservation of more than 50% of the vacancies as they arise in any year or a carry forward Rule will be outside the protection of Art.16(4). A normal Rule is that the reservation under Art. 16(4) should not exceed 50% of the appointments or posts to be made in a particular year. This Court has also observed that the Rule of 50% a year will be taken as the unit and not the entire strength of the cadre or service as the case may be(paragraph 96). If suitable candidates are not available in the year to fill the reserved seats, the reserved quota should not be carried forward to the next year, so as to exceed the 50% limit for reservation (paragraphs 98-99).

The reserved vacancies should not be carried forward beyond the period of three years at the end of which they lapse and cannot be revived and filled retrospectively by applying the relaxed norms. State Bank of India Scheduled Caste/Tribe Employees' Welfare Association and Another vs. State Bank of India and Others [(1996) 4 SCC 119].

It is also observed in the said judgment that Article 16(4) speaks of class protection and not the protection of individuals.”

Now the question is how to apply the above principle to the facts of instant case. The total numbers of posts advertised were 112. The roster appears to have been applied by the respondents on the basis of entire cadre strength. No data is available to ascertain the year wise breakup of 112 advertised vacancies. Even if it is assumed that all the vacancies were of the year of advertisement, yet the recruitment was made district-wise. Statedly, the roster points have been applied by considering the districts alphabetically. It means that the allocation of posts category-wise in each district would not be uniform. In some districts, the unreserved posts will exceed 50% and in others, the posts for reserved categories will exceed such percentage.

At this juncture it is necessary to be reminded of the basic concept of equality. Every citizen of India enjoys the constitutional guarantee of right of equality and it cannot be disturbed even by providing adequate representation to backward classes. The 50% reservation rule has its other facet that provides guarantee of remaining 50% opportunity to the unreserved category. Again, guidance is found in the following extract of Indira Sawhney:

“808. It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision — though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the re-statements of the principle of equality enshrined in Article 14. The provision under Article 16(4) — conceived in the interest of certain sections of society — should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr Ambedkar himself contemplated reservation being “confined to a minority of seats” (See his speech in Constituent Assembly, set out in para 693). No other member of the Constituent Assembly suggested otherwise. It is, thus, clear that reservation of a majority of seats was never envisaged by the Founding Fathers. Nor are we satisfied that the present context requires us to depart from that concept.”

Thus, a candidate from UR category has a right to be considered against 50% unreserved posts. However, the bar of 50% in the reservation appears to have been breached. As noticed above, as per mandate of Indra Sawhney (supra), the principle of not exceeding reservation beyond 50% has to be applied on year basis, meaning thereby said principle would be applicable to the vacancies existing in a year. In the instant case, when the recruitment has been made district-wise, the aforesaid principle appears to be violated. For a candidate, it is important in a situation like this that the reservation percentage is maintained in every district for otherwise it amounts to violation of the constitutional mandate. If the 112 posts of Constable (Drivers Male) were advertised state wise then the percentage of general category posts was higher i.e. 62 posts as against 52 posts in reserved categories and that event the petitioner would have stood better chances of hitting the merit list. By such analogy, the manner in which, the respondents have applied the principle cannot be countenanced.

During the pendency of instant petition, it was disclosed that the petitioner was at serial number 6 of the merit list of candidates under general category. Candidate named Neeraj Chandel held 5th position in merit list, however, the said Neeraj Chandel firstly had sworn an affidavit declaring his unwillingness to join as constable (driver) even if offered the post and later in compliance to order dated 10.8.2021 passed by this court he has reiterated the same stand before the 4th respondent.

Thus, the right of the petitioner to equality will remain a distant dream unless its violation is not remedied.

In result, the petition is allowed. The respondents are directed to declare 5 out of 9 vacancies of constable (driver) advertised vide recruitment notice dated 5.3.2015 for district Solan as being available for general category and thereafter consider the petitioner for appointment against said 5th post subject to fulfillment of all eligibility conditions in accordance with applicable R & P Rules. It is clarified that the petitioner, if appointed, as constable (driver) shall only be entitled to notional benefits without any actual monetary benefit. The entire exercise shall be completed within six weeks from the date of this judgment.

The petition is accordingly disposed of so also the pending miscellaneous application(s), if any.