Kikar Singh vs State Of HP And Others

Sr. No,Roll No.,Name,Total marks,Category

1.,749000001,Rajender Kumar,39.80,Gen (W.Exsm)

2.,749000009,Lalit Kumar,41.24,"General

(W.Exsm)

3.,749000012,Neha Kumari,49.00,OBC (W. Exsm)

4.,749000017,Ankita Kumari,39.37,OBC (W.Exsm)

5.,749000024,Brijesh Parihar,43.80,SC (W. Exsm

6.,749000027,"Prakash Chand

Katoch",39.51,Gen (W. Exsm)

7.,749000036,Manoj Kumar,38.91,Gen (W. Exsm)

under the OBC(Wards of Ex-servicemen) category.,,,,

In the aforesaid background, prayer has been made by the petitioner that the offer of appointment made to respondent No.4 against the post reserved",,,,

for the General (Wards of Ex-servicemen) be quashed and set aside and a direction be issued to the Department to consider the candidature of the,,,,

respondents Nos. 5 and 6 against the posts meant for the General (Wards of Ex-servicemen) category, being more meritorious and the resultant",,,,

vacancy, which becomes available under OBC (Wards of Ex-servicemen)category, be filled up by selecting and appointing the petitioner.",,,,

Mr. Yogesh Kumar Chandel, learned counsel appearing for the petitioner, while inviting attention of this Court to a recent judgment rendered by",,,,

Hon'ble Apex Court in Saurav Yadav & Ors v. State of Uttar Pradesh and Ors, (Misc. Application No. 2641/19 in SLP(C) No. 23223/2018, decided",,,,

on 18.12.2020, argued that a candidate belonging to any vertical reservation categories is entitled to be selected under the General or the Open",,,,

category and, as such, respondents, while drawing final merit list, ought to have considered the candidature of respondents Nos. 5 and 6 under General",,,,

(Wards of Ex-servicemen) category and one of the posts under the OBC (Wards of Ex-servicemen) category ought to have been offered to the,,,,

petitioner.,,,,

Learned Additional Advocate General, while supporting the impugned decision of the respondent-State, contended that since respondents Nos. 5",,,,

and 6 had participated under particular categories, they could not have been considered against the posts meant for General (Wards of Ex-",,,,

servicemen) category. He further contended that the criteria of evaluation was fair and equitable as the candidates, who participated under a",,,,

particular category, are and could have been considered under that category only. To strengthen aforesaid submission, learned Additional Advocate",,,,

General as well as learned counsel appearing for the respondent No.3, placed heavy reliance upon a judgment rendered by learned Single Judge of this",,,,

Court in case titled Vikas Kumar v. State of H.P. & ors., CWP No. 7214 of 2010, decided on 11.12.2014.",,,,

We have heard the learned counsel appearing for the parties and perused the record minutely.,,,,

There is no dispute that respondents Nos. 5 and 6, who had applied against the post in question under the categories of OBC and SC (both Wards",,,,

of Ex-servicemen), secured more marks than the candidates, who had applied under the category of General (Wards of Ex-servicemen). It is also not",,,,

in dispute that the petitioner herein applied against the post meant for OBC(Wards of Ex-servicemen) and he was at sr. No.3 amongst the candidates,",,,,

who had applied under the category of OBC(Wards of Ex-servicemen). If the contention raised on behalf of the petitioner is accepted that,,,,

respondents Nos. 5 and 6, who had secured more marks than the candidates of the General (Wards of Ex-servicemen) category, ought to have been",,,,

considered against the posts meant for the General (Wards of Ex-servicemen), selection of respondent No.4-Manoj Kumar under the category of",,,,

General (Wards of Ex-servicemen) is required to be quashed.,,,,

By now, it is well settled that if candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their",,,,

selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong.,,,,

A five-judge Bench of Hon'ble Apex Court in R.K. Sabharwal and others v. State of Punjab and others, (1995) 2 SCC 745, has categorically held",,,,

that when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the",,,,

posts, shown at the reserve points are to be filled from amongst the members of the reserve categories and the candidates belonging to general",,,,

category are not entitled to be considered for the reserved posts. Per contra, the reserve category candidates can compete for the non-reserve posts",,,,

and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of",,,,

reservation.,,,,

Though, Hon'ble Apex Court in case Rajesh Kumar Daria v. Rajasthan Public Service Commission and others, (2007) 8 SCC 785, has specifically",,,,

clarified that a candidate belonging to any of vertical reservation categories, on the basis of his/her own merit, is entitled to be selected under the",,,,

open/general category, in such eventuality, his/her selection is not be counted towards the quota reserved for such vertical reservation categories, but",,,,

since some conflicting judgments on the issue came to be rendered by various Constitutional Courts, the Hon'ble Apex Court in latest judgment in",,,,

Saurav Yadav (supra) having taken note of various judgments rendered in past by it as well as other Constitutional Courts, reiterated that the",,,,

candidates belonging to any of the vertical reservation categories are entitled to be selected under the open/general category, if such, candidates",,,,

belonging to reserved category are selected on the basis of their merit, their selection would not be counted against the quota for such vertical",,,,

reservation categories that they belong.,,,,

Hon'ble Apex Court in Sauav Yadav (supra), has held as under:",,,,

“22. The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in “Open or General,,,,

Category†is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of,,,,

their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. Apart from",,,,

the extracts from the decisions of this Court in Indra Sawhney11 and R. K. Sabharwal15 the observations by the Constitution Bench of this Court in,,,,

Shri V.V. Giri vs. Dippala Suri Dora and Others34, though in the context of election law, are quite noteworthy.",,,,

“21. … In our opinion, the true position is that a member of a Scheduled Caste or Tribe does not forego his right to 32 (2010) 3 SCC 119 33 (2017)",,,,

12 SCC 680 34 (1960) 1 SCR 426 seek election to the general seat merely because he avails himself of the additional concession of the reserved seat,,,,

by making the prescribed declaration for that purpose. The claim of eligibility for the reserved seat does not exclude the claim for the general seat; it is,,,,

an additional claim; and both the claims have to be decided on the basis that there is one election from the double-member constituency.,,,,

In this connection we may refer by way of analogy to the provisions made in some educational institutions and universities whereby in addition to,,,,

the prizes and scholarships awarded on general competition amongst all the candidates, some prizes and scholarships are reserved for candidates",,,,

belonging to backward communities. In such cases, though the backward candidates may try for the reserved prizes and scholarships, they are not",,,,

precluded from claiming the general prizes and scholarships by competition with the rest of the candidates.â€​,,,,

The High Courts of Rajasthan, Bombay, Uttarakhand, and Gujarat have adopted the same principle while dealing with horizontal reservation",,,,

whereas the High Court of Allahabad and Madhya Pradesh have taken a contrary view. These two views, for facility, are referred to as the “first",,,,

view†and the “second view†respectively. The second view that weighed with the High Courts of Allahabad and Madhya Pradesh is essentially,,,,

based on the premise that after the first two steps as detailed in paragraph 18 of the decision in Anil Kumar Gupta and Others 13 and after vertical,,,,

reservations are provided for, at the stage of accommodating candidates for effecting horizontal reservation, the candidates from reserved categories",,,,

can be adjusted only against their own categories under the concerned vertical reservation and not against the “Open or General Categoryâ€​.,,,,

Thus, according to the second view, different principles must be adopted at two stages; in that:-.",,,,

TOTAL SEATS : 100,,,,

CATEGORIES,OPEN/ GENERAL,SCHEDULED CASTES,SCHEDULED TRIBES,OTHER BACKWARD CLASSES

SEATS AVAILABLE,50,20,10,20

MI N I MU MS EATS

FOR WOMEN",15,6,3,6

S E AT S OCCUPIED

BY WOMEN BEFOR

APPLICATION O

HORIZONTAL

RESERVATION","11

E

F",7,3,9

SHORTFALL, IF ANY",4,NIL,NIL,NIL

Adopting principle (a) at the stage of horizontal reservation, the respondents in Rajesh Kumar Daria14 had separately allocated 11 seats for women in",,,,

General Category as part of special or horizontal reservation, though another set of 11 women candidates had got selected, according to their own",,,,

merit, in General Category quota. The quota of 11 seats for women having been already satisfied, this Court negated the theory that their number be",,,,

disregarded while making horizontal reservation for women. It was in that context that the distinction between vertical and horizontal reservations was,,,,

highlighted by this Court in paragraph 9 of the decision. The subsequent sentence “thus women selected on merit within the vertical reservation,,,,

quota will be counted against the horizontal reservation for women†in the very same paragraph and the illustration given thereafter are absolutely,,,,

clear on the point.,,,,

The decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht19 was also completely misunderstood. In that case one",,,,

Neetu Joshi had secured a seat in General Category on her own merit and she also answered the category of horizontal reservation earmarked for,,,,

“Uttaranchal Mahilaâ€. The attempt on part of Mamta Bisht, the original writ petitioner, was to submit that said Neetu Joshi having been appointed",,,,

on her own merit in General Category, the seat meant for “Uttaranchal Mahilaâ€​ category had to be filled up by other candidates. In essence, what",,,,

was projected was the same stand taken by the respondents in Rajesh Kumar Daria14, which was expressly rejected in that case. It is for this reason",,,,

that para 15 of the decision in Public Service Commission, Uttaranchal vs. Mamta Bisht19 expressly returned a finding that the judgment rendered by",,,,

the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria14 and the appeal was,,,,

allowed. This decision is thus not of any help or assistance in support of the second view.,,,,

The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given,,,,

precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and",,,,

selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with,,,,

less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to,,,,

candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming,,,,

from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all,,,,

the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.",,,,

The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but,,,,

will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical",,,,

reservation categories. Such view will be completely opposed to the long line of decisions of this Court.,,,,

We, therefore, do not approve the second view and reject it. The first view which weighed with the High Courts of Rajasthan, Bombay,",,,,

Uttarakhand and Gujarat is correct and rational.,,,,

It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before,,,,

the Single Judge of the High Court (quoted in paragraph 9 hereinabove) were absolutely correct. The Single Judge and the Division Bench of the High,,,,

Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing",,,,

the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court (quoted hereinabove in,,,,

paragraph 11) had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone",,,,

would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration,,,,

issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of",,,,

Bombay in Charushila vs. State of Maharashtra25 was correct.,,,,

We must also clarify at this stage that it is not disputed that the Applicant no.1 and other similarly situated candidates are otherwise entitled and,,,,

eligible to be appointed in ‘Open/General Category’ and that they have not taken or availed of any special benefit which may disentitle them,,,,

from being considered against ‘Open/General Category’ seat. The entire discussion and analysis in the present case is, therefore, from said",,,,

perspective.â€​,,,,

It is quite apparent from the aforesaid law laid down by Hon'ble Apex Court that the candidates, who are entitled to the benefit of special category",,,,

reservation, can compete /be selected against the posts meant for general category on the basis of their merit. Contrary view, if any, taken would",,,,

result in selecting candidates in general category with lesser merit, which otherwise is not permissible. Aforesaid law laid down by Hon'ble Apex",,,,

Court, which is virtually a reiteration of the earlier law laid down in R.K. Sabharwal (supra) and Rajesh Kumar Daria (supra), has been violated by the",,,,

respondent-State, by not considering candidature of respondents Nos. 5 and 6 against the posts meant for the general category, as result of which,",,,,

petitioner, who is at Sr. No.3 in the OBC (Wards of Ex-servicemen) category has lost his right to be selected against one of the posts reserved for the",,,,

OBC (Wards of Ex-servicemen) category.,,,,

Reliance placed by respondents Nos. 1 to 3 upon the judgment in Vikas Kumar (supra) rendered by learned Single Judge of this Court, is wholly",,,,

misconceived and cannot be applied in the facts of the present case, especially in view of the law laid down by Hon'ble Apex Court in Saurav Yadav",,,,

(supra). Perusal of the aforesaid judgment rendered by learned Single Judge of this Court, reveals that it, after having taken note of the judgment",,,,

rendered by Hon'ble Apex Court in Anil Kumar Gupta vs. State of U.P, (1995) 5 SCC 173 and Rajesh Kumar Daria (supra), arrived at the following",,,,

conclusion:,,,,

“10. The proper and correct course for the respondents in this case was to have first filled up all the ten vacancies on the basis of merit and then,,,,

fill up the special reservations i.e. Ex-serviceman, IRDP and Home Guard. If the quota fixed for horizontal reservation was already satisfied, no",,,,

further question would arise. But in case there was a shortfall and the reservation had not been satisfied, the requisite number of special reservation",,,,

candidates were required to be taken and adjusted/ accommodated against their respective categories i.e. Ex-serviceman, IRDP and Home Guard by",,,,

deleting the corresponding number of candidates therefrom.â€​,,,,

Hon'ble Apex Court in Saurav Yadav (supra) has categorically held in paragraphs Nos. 28 and 29 of the judgment, as has been taken note herein",,,,

above, that the second view, based on adoption of a different principle at the stage of horizontal reservation as against one accepted to be a settled",,,,

principle for vertical reservation, may thus lead to situations where a less meritorious candidate, not belonging to any of the reserved categories, may",,,,

get selected in preference to a more meritorious candidate coming from a reserved category.,,,,

In the afore paragraphs of the latest judgment rendered by Hon'ble Apex Court, their Lordships have clarified that the observations made in",,,,

paragraph-18 of Anil Kumar Gupta (supra) and paragraph-9 of Rajesh Kumar Daria (supra) cannot be taken as a declaration supporting the second,,,,

view and are certainly being picked out of context. Hon'ble Apex Court, in the aforesaid judgment has also clarified that the observations made in",,,,

paragraph-18 of Anil Kumar Gupta (supra) contemplated a situation, where if “special reservation candidates†entitled to horizontal reservation",,,,

are to be adjusted in vertical column meant for “social reservationâ€, the corresponding number of candidates from such “social reservation",,,,

categoryâ€, ought to be deleted. It did not postulate that at the stage of making “special or horizontal reservationâ€, a candidate belonging to any of",,,,

the “social reservation categoryâ€​ cannot be considered against open or general category.,,,,

In the afore paragraphs of the judgment rendered by Hon'ble Apex Court, their Lordships have clarified that the observations made in paragraph -",,,,

18 of Anil Kumar Gupta (supra) and paragraph-9 of Rajesh Kumar Daria (supra) cannot be taken as a declaration supporting the second view and are,,,,

certainly being picked out of context. Hon'ble Apex Court in the aforesaid judgment, has further held that the observations in paragraph 18 in Anil",,,,

Kumar Gupta (supra) contemplated a situation where if “special reservation candidates†entitled to horizontal reservation are to be adjusted in a,,,,

vertical column meant for “social reservationâ€, the corresponding number of candidates from such “social reservation category†ought to be",,,,

deleted. Hon'ble Apex Court further observed that at the stage of making “special or horizontal reservation†a candidate belonging to any of the,,,,

“social reservation categoriesâ€​ cannot be considered in Open/General Category.,,,,

Since the findings rendered by learned Single Judge in Vikas Kumar (supra) are also based upon wrong interpretation of judgments rendered by,,,,

Hon'ble Apex Court in Anil Kumar Gupta (supra) and Rajesh Kumar Daria (supra), same cannot be made applicable/relied upon in the facts of the",,,,

present case.,,,,

In view of the detailed discussion made supra, we are of the firm view that the selection made by respondent No. 3 vide Annexure P-4 is not in",,,,

conformity with the law laid down by Hon'ble Apex Court on the subject, and deserves to be quashed and set aside.",,,,

In view of above, the petition is allowed. Annexure P-4 is quashed and set aside, being contrary to the settled legal position. Respondent No.3 is",,,,

directed to, within two weeks from today, in conformity with the observations made herein supra, re-draw the selection list of all the categories qua",,,,

the selection in question, and proceed thereafter, to sponsor the names of the selected candidates to the requisitioning Department.",,,,

Petition stands disposed in the afore terms, alongwith all pending applications.",,,,