Krishna Mohan Tripathi vs U.P.Public Service Commission Allahabad

S. R. Singh, J.—In response to the advertisement No. 5/9697 of the U.P. Public Service Commission, inviting applications by 29397 for 18 posts of Assistant Tax Superintendent in U.P. (Centralised) Revenue Sendees; 14 posts of Tax Superintendent in U.P. Palika (Centralised) Subordinate Revenue Services and 14 posts of Tax Superintendent in U.P. Palika (Centralised) Revenue Services; the petitioner applied for being considered for appointment as exserviceman. The facts constitutive of the grievances of the petitioner are that no posts were earmarked or reserved for exservicemen in any of the above categories except that it was spelt out in the advertisement that relaxation in agelimit would be admissible for physically handicapped and Exarmy Pers6nnel. It would appear that the petitioner preferred a representation on 6697 to the Secretary, Public Service Commission U.P. Allahabad followed by another representation on 28697. When the representations aforestated yielded no positive orders, he filed the instant petition for the relief of a writ of mandamus directing the respondents inter alia to reserve one post in each of the categories of services for physically handicapped, dependents of Freedom Fighter and Ex servicemen in abidance of Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighter and Exservicemen) Act, 1993 (In short ''the U.P. Act No. 4 of 1993'') and provide admissible relaxation in agelimit to ExArmy Personnel, Dependents of Freedom Fighter and Physically handicapped.

It admits of no dispute that the U.P. Act 4 of 1993 provides for reservation of posts in favour of Physically handicapped, Dependents of Freedom Fighter and Exservicemen in that according to subsection (1) of Section 3 of the Act, 5% of vacancies at the stage of direct recruitment in the Public Services and posts in connection with the affairs of the State, shall be reserved for Physically handicapped, Dependents of Freedom Fighters and Exservicemen. By means of notification dated 451995 issued in exercise of powers under Section 2(2) of the Act, the State Government notified that out of 5% horizontal reservation in favour of Physically handicapped, Dependents of Freedom Fighters and Exservicemen, there shall be reservation of 2% each in favour of Physically handicapped and Dependents of Freedom Fighters and 1% in favour of Exservicemen.

Sri Yar Mohd. entered appearance for the petitioner and Sri VM. Sahai for the Public Service Commission who were heard at prolix length. Standing Counsel appearing for the respondent No. 2 was also heard.

The learned Counsel appearing for the petitioner canvassed that Public Service Commission was under a duty to provide in the advertisement the percentage of vacancies reserved in favour of Physically handicapped, Dependents of Freedom Fighters and Exservicemen as stipulated in Section 3(1) of the U.P. Act 4 of 1993. Sri V. M. Sahai contended in opposition that the Commission advertised the posts as intimated by the concerned department and since the concerned department had not indicated reservation to be made in favour of Physically handicapped, Dependents of Freedom Fighter and Exservicemen, it would have been presumptuous for the Commission to have indicated any reservation in the above categories. It was further contended by Sri Sahai that in view of the Government notification dated 13th Sept., 1993, the candidates selected against the quota reserved for Physically handicapped, Dependents of Freedom Fighters and Exservicemen had to be adjusted against general category, O.B.C. or SC/ST, as the case may be and further that 5% reservation is to be actualised at the time of final selection in order of merit of the candidates judged by the Commission at the time of interview of the candidates. It also finds mention in the counteraffidavit that in the Screening Test held on 411998, the petitioner was weeded out. The result of the Screening Committee was pronounced on 721998.

It is beyond the pale of dispute that the Commission rounds up fraction of 0.50 or above to a full unit and ignores the fraction of less than 0.50 for the purposes of working out the number of vacancies in the reserved category. In Brijendra Deo Misra v. Public Service Commission, U.P. (1997)1 ESC 394 (All), the Division Bench of this Court reckoned with the provisions contained in Section 3 U.P. Act 4 of 1993 and summed up the finding as under:

"A combined reading of subsection (.1) and (3) makes it clear that the quotas of the vacancies for Physically handicapped, DFF and Exservicemen 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 subsection (1), they have to be placed in the respective caste category by making necessary adjustments."

A combined reading of subsection (1) and (3) crystallises that the quota of the vacancies for Physically handicapped, OFF and Exservicemen, has to be sorted out on appreciation of total number of vacancies and it is after the persons selected against the vacancies reserved under subsection (1) that they have to be placed in the respective caste/class category for making necessary adjustments. \\nlndra Sawhneyv. Union of India, AIR 1993 SC477, the Supreme Court held as under:

"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. Horizantal reservations cut across the vertical reservations what is called interlocking 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 the quota will be placed in the appropriate category if the belongs to SC 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 remainsand 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."

In the conspectus of the above submissions and the ratio flowing from the decisions cited above, I am of the considered view that so far as the petitioner is concerned, he cannot be classed as a person aggrieved in that he has already been screened out in the screening test conducted by the Commission and it is not his case that the Screening test is tainted with any infirmity or arbitrariness.

So far as the question of legal nicety angled at reservation as contemplated under Section 3 of the U.P. Act 4 of 1993, is concerned, reservation thereunder is relatable to clause (1) of Article 16 of the Const and the persons selected against the quota reserved for PH/DFF/Exservicemen are to be placed in the appropriate category i.e. if he belongs to SC/ST or OBC category, he would be placed in that category and if he belongs to open competition category, he would be placed in that category by making necessary adjustments and by doing so, as held by the Supreme Court in Indra Sawhney''s case (supra), the percentage of reservation in favour of OBC/SC/ST would remain the same. The result that follows is that the candidates belonging to Physically handicapped, Dependents of Freedom Fighter and Ex servicemen categories will have to be adjusted against their respective Class/casts categories in order of merit.

However, the submission of the learned Counsel for the petitioner, is loaded with some substance that the Commission must indicate explicitly, in the advertisement itself, the percentage of reservation for each of the categories or class of persons for whom the law provides for reservation and determine their quota in respect of each cadre and grade of service separately. In respect of Physically handicapped, Dependents of Freedom Fighter and Exservicemen a composite quota at the rate of 5% is to be indicated in the advertisement and determined accordingly. For example in the present case, one post in each of the cadres/grades aforestated should be reserved in favour of Physically handicapped, D.F.F. and Exservicemen. It is clarified that in case, there is only one post earmarked for three categories of Physically handicapped, Dependents of Freedom Fighters and Exservicemen, in that event the claim shall be considered on the basis of their inter se merits. It is further clarified that at the stage of adjustment in respective category, equal number of candidates, whether in open category or in OBC category or in SC/ST category, will have to submerge their claim in favour of the candidates selected under the quota reserved for Physically handicapped, Dependents of Freedom Fighters and Ex servicemen, as the case may be, irrespective of merit as otherwise U.P. Act 4 of 1993 will detract from its meaning and purpose.

As a result of foregoing discussions, the petition is disposed of with the direction that the respondents shall, in the matter of recruitment to the posts in question, abide by the law of reservation as embodied in U.P. Act No. 4 of 1993 and explained in this judgment M. H.