Kamla Kurre vs State Of Chhattisgarh

This petition is filed under Article 226 of the Constitution of India for quashing the order dated 13.03.2014 (Annexure P/1) and restoring the order of Chief Executive Officer, Janpad Panchayat, Gharghoda dated 30.06.2009.

Brief facts of the case are that respondent No.4/Chief Executive Officer, Janpad Panchayat, Gharghoda has issued an advertisement for the post of Shiksha Karmi Grade-III on 19.06.2009. Petitioner was selected on the aforesaid post and appointment oder was issued in favour of the petitioner on 30.06.2009. On 20.08.2009, Respondent No.5-Laxminarayan Lahre filed an appeal (Annexure P/5) before Respondent No.3/ Collector, Raigarh and by order dated 25.11.2013, respondent No.3 set aside the appointment of the petitioner. Against this order, petitioner filed the revision along with stay application before the Commissioner, Bilaspur Division, Bilaspur. The Commissioner, Bilaspur vide order dated 05.12.2013 stayed the effect and operation of order dated 25.11.2013 but ultimately, the learned Additional Commissioner/respondent No.2 vide order dated 13.03.2014 dismissed the revision filed by the petitioner. Hence, this petition by the petitioner for the following reliefs:-

(i) This Hon'ble Court may kindly be pleased to quash the impugned order dated 13.03.2014 (Annexure P/1) passed by the respondent No.2 and reserved the order of the Chief Executive Officer, Janpad, Panchayat, Ghargoda dated 30.06.2009.

(ii) Any other relief which this Hon'ble Court deems fit and proper may also kindly be granted to the petitioner in the interest of justice along with costs of the petition.

Learned counsel for the petitioner submits that the learned Collector as well as learned Additional Commissioner wrongly appreciated the reservation rules. Since the petitioner was one of the woman candidates securing highest marks, her name was considered on merit along with others for reserved seat of Scheduled Castes category. As Tosh Kumari secured highest marks, she has been considered on merit in the Scheduled Caste category. Therefore, according to the reservation policy, name of the petitioner has been considered against reserved seat of Scheduled Caste (woman) category and the respondents authorities have not properly understood the reservation policy and passed the impugned order without considering the horizontal reservation. The impugned order is not sustainable in the eye of law because the same has been passed without looking into the relevant provisions of law.

The Chief Executive Officer has categorically filed reply as well as report in which he informed as to why horizontal reservation has been given in the case concerned but the same has not been considered and respondent no. 2 has passed the order impugned in arbitrary manner and directed to set aside the appointment order of successive candidate of woman category for which post has been reserved. Learned Additional Commissioner as well as learned Collector totally overlooked the reservation policy and the horizontal reservation and totally overlooked the meritorious candidates whose status have rightly been considered against the reserved seat of Shiksha Karmi Grade-III for Arts subject and accordingly the name of the petitioner has rightly been considered for reserved seats of Scheduled Caste (woman) category. In the order of appointment there is no irregularity, but the learned Collector and the Additional Commissioner acted contrary to the settled principle of law and passed the impugned order and same cannot be sustainable in the eye of law.

Learned counsel for respondents no. 1 to 3 submits that the respondents passed the impugned order while exercising their quasi-judicial powers conferred under the Chhattisgarh Panchayat Raj Adhiniyam, 1993 and they have passed well reasoned orders after providing due opportunity of hearing to the parties as provided under the law and as such no interference is warranted in the impugned order

Learned counsel for respondents no. 4 & 5 submits that a bare perusal of the advertisement dated 19.06.2009 revealed that in Arts category total 3 posts were advertised for Scheduled Caste candidates out of which one post was reserved for woman. The selection list was prepared by the respondents wherein one Tosh Kumari appeared at S.No.1 with total 47.74 marks, second rank was secured by one Pitamber Kumar Ratre with 47.24 marks, the respondent no. 5 was placed at S.No. 3 with 45.73 marks and petitioner who obtained 40.20 marks was placed at S.No. 6 in order of merit. As per the horizontal reservation the quota of woman reservation would have been treated to be filled up after selection of Tosh Kumari at S.No. 1 in the merit list, however, applying the reservation in erroneous manner, the petitioner was selected and appointed on the post of Shiksha Karmi Grade-III instead of respondent no. 5.

The order of appointment of petitioner on the post of Shiksha Karmi Grade-III was assailed by respondent no. 5 before the Collector. The Collector vide order dated 25.11.2013 in appeal set aside the order of appointment of the petitioner and directed the respondent no. 4 to consider the candidature of the respondent no. 5 in accordance with law. The order dated 25.11.2013 passed by the Collector was assailed by the petitioner in revision before the Additional Commissioner but the Commissioner affirmed the order passed by the Collector.

Both the orders are well reasoned orders based on material facts on record and the same have been passed after affording opportunity of hearing to the parties. Therefore, the same do not call for any interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. Therefore, the petition is devoid of merits and deserves to be dismissed. Reliance has been placed on the judgment rendered by Hon'ble Supreme Court in the matter of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others reported in (2007) 8 SCC 785.

Heard counsel for the parties and perused the material available on record.

The number of posts published under the advertisement dated 19.08.2009 (Annexure P/3) by the Respondent authority is as under:-

Petitioner was appointed vide order dated 30.06.2009 (Annexure P/4) against reserved category of Scheduled caste (woman).

The  difference  between  the  nature  of  vertical  reservation  and horizontal reservation has been explained by the Hon’ble Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others, (2007) 8 SCC 785, wherein in para 9 it has been held as under:-

The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are “vertical reservations”. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are “horizontal reservations”. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. (Vide - Indira Sawhney 1992 Supp (3) SCC 217 : 1992 SCC (L & S) Supp 1 : (1992) 22 ATC 385, R. K. Sabharwal vs. State of Punjab (1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481, Union of India vs. Virpal Singh Chauhan (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996) 3 SCC 253). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste Women”. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.

The principles of law laid down in the aforesaid judgment in the matter of Rajesh Kumar Daria (supra) have been subsequently reiterated by the Hon’ble Supreme Court in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht and others, 2010 (12) SSC 204.

As per Annexure P/2, competent authority has held in para 7 as under:-

The selection list prepared by the answering respondent is as under:-

S.No.

Name of the candidates

Marks

Rank

1.

Tosh Kumari

47.74

1

2.

Pitamber Kumar Ratre

47.24

2

3.

Laxminarayan Lahre

45.73

3

4.

Kamla Kurre

40.20

6

As per rules, the quota of woman reservation would have been treated to be filled up after selection of Tosh Kumari at serial No.1 in the merit list, therefore selection of respondent No.5 in open category is based on merit list and according to reservation rules. As per appointment order, petitioner’s appointment as reserved category woman is not according to reservation rules, hence, the order dated 25.11.2013 (Annexure P/2) of the Collector and the order dated 13.03.2014 (Annexure P/1) of Additional Commissioner are according to law and based on reservation rules as held by Hon’ble Supreme Court in the matter of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others (Supra).

Looking to the facts and circumstances of the case, the impugned order being in accordance with law needs no interference by this Court. Therefore, this petition has no merit and is accordingly dismissed.