Mahavir Singh vs State of Himachal Pradesh and Others

Rajiv Sharma, J.—The petitioner completed his two years JBT course from H.P. Board of School Education in the year 2011. The petitioner appeared in the Teacher Eligibility Test which was held on 14.8.2012 in the "physically handicapped category". The petitioner scored 93 marks out of 150 marks. The first counseling took place on 21.11.2013 and 29.11.2013. In the first list, 205 persons were offered joining vide letter dated 5.2.2014. Thereafter, in the second counseling 18 more candidates were offered joining letters. On 30.6.2014, 11 more persons were offered appointment letters. However, the fact of the matter is that the petitioner, though has scored 93 marks in the physically handicapped category, has not been offered appointment letter.

The cut of marks for general category candidates were 90. The record was summoned and produced before this Court. We have gone through the record. Sh. Virender Dogra has scored 102 marks and Deepak Kumari has scored 101 marks in the "physically handicapped category". The respondents are required firstly to prepare the overall merit list as per the marks scored by all the candidates, including the reserved and unreserved category candidates. The candidates belonging to reserved category are also required to be considered against the general category candidates as per the marks obtained in the first merit list. Thereafter, the candidates belonging to reserved category have to be considered against their own category on the basis of marks scored. In other words, the candidates belonging to reserved category, who have scored more marks as per the merit list are to be considered against the general category candidates and their numbers cannot be added and taken into consideration for working out the percentage of reservation. In the instant case, the petitioner, Sh. Virender Dogra and Deepak Kumari have scored 93, 102 and 101 marks, respectively, in the "physically handicap category". All these three candidates were required to be considered against the general category candidates and their numbers could not be added and taken into consideration for working out the percentage of reservation. The resultant vacancies were to be filled up by the candidates belonging to "physically handicap category". The underlying principle is that the candidates, though belonging to reserved category, have overcome the handicap by high marks and thus are to be considered as general category candidates and reserved category candidates who have scored less marks than the marks obtained by the last candidate of the general category are to be considered in the reserved category by preparing a separate list for their category. In case the petitioner had applied for general category, he would have been offered appointment at par with other candidates. Since the petitioner has appeared as physical handicap category, though has scored 93 marks, but has not been offered appointment letter in an illegal and arbitrary manner.

Their lordships of the Hon''ble Supreme Court in the case of R.K. Sabharwal and others Vs. State of Punjab and others, AIR 1995 SC 1371 : (1995) 70 FLR 985 : (1995) 2 JT 351 : (1995) LabIC 1618 : (1995) 1 SCALE 685 : (1995) 2 SCC 745 : (1995) 2 SCR 35 : (1995) 3 SLJ 227 , have held that the reserve category candidates can compete for the non-reserved 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. It has been held has follows:

"5. 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 reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand 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. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despite any number of appointment/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same."

Mr. Anup Rattan, learned Addl. Advocate General submits at the Bar that 60 posts are still lying vacant.

Accordingly, the Writ Petition is allowed. Respondents No. 1 to 3 are directed to issue appointment letter to the petitioner within two weeks from today. In normal circumstances, the appointment of respondent No. 4 was liable to be set aside since he has scored less marks that the petitioner, but in order to balance the equities and taking into consideration that 60 posts are still lying vacant, we have decided not to interfere with the appointment of respondent No. 4. Pending application(s), if any, shall stand disposed of.