Nandan Singh Mehta vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Pankaj Kumar with Mr. Harendra Belwal, learned counsel for the appellant, Mr. Paresh Tripathi, learned Chief Standing Counsel for State of Uttarakhand, Mr. Pankaj Purohit, learned counsel appearing on behalf of respondent Nos.4 & 5 and Mr. Vinay Kumar, learned counsel for respondent No.6.

The jurisdiction of this Court, under Article 226 of the Constitution of India, has been invoked by the petitioner seeking a writ of certiorari to quash the merit list prepared by respondent Nos. 4 & 5 for the post of Gram Panchayat Vikas Adhikari in District Pithoragarh; and for a writ of mandamus commanding the respondents to consider the name of the petitioner for appointment to the post of Gram Panchayat Vikas Adhikari under the category of Ex-serviceman in District Pithoragarh.

Facts, to the limited extent necessary, are that an advertisement was issued on 20.11.2015 inviting applications for appointment to 31 posts of Gram Panchayat Vikas Adhikari in District Pithoragarh. Out of these 31 posts, 12 posts were earmarked for the general category, 7 posts for General category (Woman), 1 post for General category (Physically Handicapped), one post for General category (Ex-serviceman), two posts for the General category (Uttarkhand Andolankari), three posts for the Schedule Castes, one post for Schedule Caste (Woman), three posts for the OBCs,and one post for OBC (Woman). The petitioner, an ex-serviceman, was entitled to compete both for the 12 posts earmarked for the General Category, and for the sole post horizontally reserved for General category (ex-serviceman). He participated in the written examination and secured 39 marks from out of 100. While the minimum cut off marks prescribed for the General Category and the OBC category was 45%, the minimum cut off marks prescribed for the Scheduled Castes and the Scheduled Tribes was 35%. Since the petitioner did not secure the minimum cut off marks of 45% prescribed for the General Category, he was not considered for selection and appointment to the post of Gram Panchayat Vikas Adhikari under the General Category (Ex-serviceman) quota. None of the General Category (Ex-servicemen), who had participated in the selection process, secured the minimum cut off marks of 45%. Consequently, the said post earmarked for General Category (Ex-serviceman), was not filled up from among Ex-servicemen; and was, thereafter, filled up by appointing the sixth respondent, a General Category candidate who, (though he did not belong to the Ex-serviceman category), had secured 70.05% marks.

The jurisdiction of this Court was invoked by the petitioner contending that the minimum cut off marks, prescribed for the General Category cannot be extended to General Category (Ex-servicemen); and Ex-servicemen, even if they have secured lesser marks than the cut-off marks of 45%, are entitled to be considered for selection and appointment to the sole post earmarked for General Category (Ex-serviceman). Reliance is placed on the judgment of the Rajasthan High Court in Satpal and ors Vs. Oriental Bank of Commerce and ors. (order in S.B. Civil Writ Petition, Nos. 6293 and 6614 of 2009 dated 07.02.2017) which was affirmed by the Division Bench of the Rajasthan High Court in Oriental Bank of Commerce & another vs. Satpal [order in Civil Special Appeal (Writ) No.227 of 2017 dated 08.05.2017]. Reference is also made to the Ex-servicemen (Re-employment in Central Civil Services and Posts)Rules, 1979.

On the appellant-writ petitioner invoking the jurisdiction of this court by filing WPSS No.3946 of 2018, the learned Single Judge, in the order under appeal dated 02.05.2019, noted the contention, urged on behalf of the petitioner, that he belonged to the special category of Ex-servicemen; the requirement of securing the minimum cut off marks would not be applicable in his case; and, as a result, the benefit of reservation could not be denied by imposing the condition of securing the minimum cut off marks. The learned Single Judge held these contentions to be unacceptable for the reason that the Selecting body had specified in the advertisement that candidates belonging to the Scheduled Castes, the Scheduled Tribes, the O.B.Cs. and the General Category would be required to secure the minimum cut-off marks, as prescribed in the Rules; the Rules categorically provided that the cut off marks would be 45% for the General and OBC categories; and for the Schedule Castes and the Scheduled Tribes categories, the cut off marks would be 35%; there was no relaxation in favour of any of the categories to whom horizontal reservation was made available e.g. women, ex-servicemen, physically handicapped etc; the petitioner had participated in the selection process pursuant to the advertisement without demur; and it was, therefore, not open to him to turn around and raise such a contention.

The learned Single further observed that the petitioner's score was much below the cut off marks prescribed for the General Category candidates; and, therefore, he was rightly found not suitable for appointment. With regards failure of the respondents to carry forward the post of ex-servicemen to the next selection year, the learned Single Judge observed that the carry forward rule did not apply in the case of horizontal reservation; and, while Ex-servicemen were entitled to the benefit of horizontal reservation, in the absence of a suitable Ex-serviceman being available, the post in question had to be filled by a General Category candidate.

In Satpal and others vs. Oriental Bank of Commerce and others, on which reliance is placed on behalf of the appellant-writ petitioner, a learned Single Judge of the Rajasthan High Court observed, placing reliance on Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, that, in terms thereof, 10% of the total vacancies, advertised in each category, was required to be reserved in favour of ex-servicemen; as the number of posts advertised, under the OBC Category was 31, 3 posts were required to be reserved in favour of ex-servicemen from the OBC category; not applying the law declared by the Supreme Court in Indra Sawhney (Supra) vs. Union of India [1992 Supp (3) SCC 217], and Anil Kumar Garg vs.State of U.P. [1995(5) SCC 173] would mean that only those ex-servicemen in the OBC category, who obtained more marks than the last OBC category candidate, would be included in the merit list; it would keep away one post meant for servicemen; if there was a shortfall, the post should be filled up from a candidate belonging to the Ex-servicemen category lower in merit, so that the three posts of Ex-servicemen can be filled up; no other person, amongst Ex-servicemen, was available; and, therefore, the petitioners were required to be pulled up and given appointment. Reliance was placed by the learned Single Judge of the Rajasthan High court on the judgments of Punjab and Haryana High Court in "Dayal Chand vs. the Oriental Bank of Commerce", "Ex-Sergeant Shankar Maiti & others Vs. Chairman-cum-Managing Director, Oriental Bank of Commerce" wherein it was held that it was not stated anywhere that there was any minimum cut off marks fixed for selection, which the petitioner could not attain; once reservation is made for a particular category, the person competing in that category would have to be assessed on the basis of his merit; and selection should, accordingly, be made depending upon the number of vacancies available in that reserved category.

Aggrieved by the order passed by learned Single Judge, the matter was carried in appeal. A Division Bench of the Rajasthan High Court, in its order in Oriental Bank of Commerce Vs. Satpal, made it clear that, though ex-servicemen would be entitled to be appointed on their respective merit, even if they fall below the normal cut-off marks secured by an ordinary OBC category candidate, the same shall not result in induction of ex-servicemen who secured marks lower than the overall benchmark, if any stipulated; cut-off marks was the merit position of the last selected candidate in the selection process in the respective category, whereas the benchmark was the minimum requirement, which the candidates had to adhere to for gaining appointment; if the petitioner did not qualify the benchmark, then the secured marks cannot be relaxed for giving effect to any ex-servicemen reservation; but if he was below the cut-off marks, and the quota was yet to be filled, the same should be filled up strictly in accordance with the order passed by learned Single Judge.

As has been held by the Division Bench of Rajasthan High Court, in Oriental Bank of Commerce, the distinction between "cut off marks" and "bench mark", should be borne in mind. The cut off marks are the marks secured by the last selected candidate in the respective category. In the present case the last selected candidate in the General category, i.e. the sixth respondent, had secured 70.05 marks. The cut off marks for the General Category was therefore, 70.05%. The benchmark, on the other hand, are the minimum marks stipulated in the Rules for candidates to qualify i.e. 45% for the general and OBC category and 35% for the Scheduled Castes and the Scheduled Tribes. The petitioner has, in the present case, secured only 39% marks which is far below the bench mark of 45% for general category candidates.

Reliance placed by the petitioner on the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 is of no avail, since the posts, in the present case, do not form part of the Central Civil Services, and are posts falling under State Civil Services. No reliance can, therefore, be placed on the Rules applicable only to the Central Civil Services.

Yet another submission, urged on behalf of the appellant-writ petitioner, is that the cut-off marks prescribed of 45 % is for the unreserved category, whereas the petitioner belongs to the reserved category of Ex-servicemen. Reference in the Rules, to the unreserved category, is in the context of vertical reservation provided in favour of the socially backward classes. While the cut off marks for general category and the OBC category is 45%, and the minimum cut off marks for members of the Scheduled Castes and the Scheduled Tribes is 35%, horizontal reservation cuts across all categories and candidates who seek horizontal reservation, be it Women the Physically Handicapped, Ex-servicemen, Uttarkhand Andolankaries etc. must all fulfill the minimum cut off marks prescribed for the said category which, in the case of a General Category candidate, is 45%. Horizontal reservation, provided in favour of General category (ex-serviceman), cannot be equated with vertical reservation provided in favour of the Scheduled Castes and the Schedule Tribes, since horizontal reservation cuts across the board with respect to each category.

This question can also be examined from another angle. If the submission urged on behalf of the appellant-writ petitioner, were to merit acceptance, and it is held permissible for the respondents to appoint candidates who seek horizontal reservation, even if they secure marks below the prescribed minimum cut off marks, then persons, belonging to the category for which horizontal reservation is provided, would be required to be selected and appointed even if they get only zero marks out of 100. Such a far fetched submission does not merit acceptance.

We see no reason, therefore, to interfere with the order under the appeal, whereby the learned Single Judge has denied the appellant-writ petitioner the benefit of being considered for appointment to the general category (ex-serviceman) post.

We, however, find considerable force in the submission, urged on behalf of the appellant-writ petition, that the post reserved for General Category (Ex-serviceman) could not have been filled up by a General Category candidate who does not fall under the Ex-serviceman category. Reliance has been placed in this regard, on behalf of the appellant-writ petitioner, on the Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 (the "1993 Act" for short). Section 3(1) (i-a) of the 1993 Act stipulates that there shall be reserved, at the State level, for direct recruitment in public services and posts, other than group 'A' posts or group 'B' posts, two percent of vacancies; and on and from the date on which the Uttar Pradesh Services (Reservation for Physically Handicapped, Dependents of Freedom-Fighters and Ex-Servicemen) (Amendment) Act, 1999 is published in the Gazette, five percent of vacancies for Ex-servicemen. Section 3(5) stipulates that where, due to non-availability of suitable candidates, any of the vacancies reserved under sub-section (1) remains unfilled, it shall be carried forward for two further recruitment, and thereafter it would be treated to have lapsed.

In the present case, it does appear that the respondents have acted contrary to Section 3(5) of the 1993 Act, on their having filled up the post, reserved in favour of Ex-servicemen in the general category, by appointing the sixth respondent who, admittedly, does not belong to the ex-serviceman category; and in not carrying the said post forward to be filled up in the next two recruitments. It is only thereafter that the eligible General category (ex-serviceman) would be deprived of the opportunity to compete for this post in the subsequent selection year. The fact, however, remains that the sixth respondent has already been appointed pursuant to the subject selection process. Suffice it, in such circumstances, to modify the order of the learned Single Judge to the limited extent that the Uttarakhand Subordinate Service Selection Commission (respondent Nos.4 & 5) shall put the sixth respondent on notice regarding his appointment falling foul of Section 3(5) of the 1993 Act; and, after giving him an opportunity of being heard, shall pass a reasoned order, and take necessary action in accordance with law thereafter. The entire exercise, culminating in an order being passed, and action being taken by respondent Nos.4 & 5, shall be completed with utmost expedition and, in any event, within three months from the date of production of a certified copy of this order.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.