Narendra Kumar Vijay @APPELLANT@Hash State of Rajasthan & Ors

Learned counsel for the petitioners, at the very outset, submits that the controversy raised in the instant writ application is no more res-integra in view

of the adjudication made by the Apex Court of the land in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission, (2007) 8 SCC

785, so also in view of adjudication made by this Court in the case of Manoj Kumar Tungariya Vs. State of Rajasthan: 2016 WLC (Rajasthan) (UC)

340, observing thus:

The submissions made on behalf of the respondent-Commission in an attempt to distinguish the controversy raised in the instant case at hand for

the issue involved herein is with reference to appointment to public service whereas the principle enunciated by the Hon'ble Supreme Court in the case

of Anil Kumar Gupta (supra), was with reference to policy of reservation in the matter of admission to Medical Course; is absolutely misconceived

and misleading. In the case of Anil Kumar Gupta (supra), the Hon'ble Supreme Court in no uncertain terms held that the proper and correct procedure

while implementing reservation is to fill up the open category quota (50%) on the basis of merit. The second step thereafter is to fill up each of the

social reservation quotas i.e. Scheduled Caste, Scheduled Tribe and Other Backward Classes, and the third step would be to determine the number of

candidates belonging to these special/horizontal reservation. In case, the quota prescribed for horizontal reservation is already satisfied, no further

reservation is to be accorded to the category of candidates belonging to horizontal reservation.

The principle has been reiterated in RajeshKumar Daria (supra), explaining the difference between vertical/social reservation and

horizontal/special reservation. The social reservations in favour of SC/ST/OBC under Article 16(4) of the Constitution are 'vertical reservations'

whereas special reservations in favour of physically handicapped, women etc. under Article 16(1) and/or 15(3) of the Constitution are 'horizontal

reservations'. In the case of 'vertical reservation' under Article 16(4) of the Constitution, the candidates belonging to SC/ST/OBC may compete for

non-reserved posts and if they are successful on their merit, their numbers will not be counted against the quota reserved for respective category i.e.

SC/ST/OBC.

In the case of 'horizontal/special reservation',the principle, which is applicable to 'social/vertical reservation', is not applicable. Where horizontal

reservation for women is provided within the social reservation for the respective category; the procedure for filling up the quota for the relevant

category is, in order of merit and then, to determine the number of candidates belonging to the special reservation group and social reservation. In

case, number of women in such list is satisfied, there will be no question for further selection towards special/horizontal reservation quota. It is only the

shortfall of the requisite number of the women of the social/vertical reservation, who by virtue of special/horizontal reservation would be

accommodated displacing the corresponding numbers of the candidates from the bottom of the list of the concerned category i.e. SC/ST/OBC as the

case may be. Thus, women candidates selected on merit out of the vertical reservation quota will be counted against the horizontal reservation for

women.

From the materials available on record, it isfurther reflected that the respondent-Commission in compliance of the direction issued in the case of

Naresh Kumar Sharma (supra); on a representation made by one Piyush Sharma and others, revised the select list of the recruitment process involved

in the instant case at hand on 10th January, 2013, as would be evident from document Annexure-R/7, placed by the petitioner along with the rejoinder,

which is reflected in the information published/uploaded on the website of the respondent-Commission, calling upon the candidates declared successful

therein, to download the detailed application form, from the website of the respondent-Commission, and send the application form along with the

required certificates to reach the office of the respondentCommission on 21st January, 2013. Thus, the ground of delay as pleaded on behalf of the

respondent-Commission has no substance.

The legal position with reference toapplicability of doctrine of 'prospective overruling' is no more res-integra. The doctrine of 'prospective

overruling' is applied to overcome the interest of the citizens, who may be adversely affected, but then power is to be exercised in the clearest possible

terms as has been held by the Hon'ble Supreme Court in the case of P.V. George & Ors. (supra). The judgment in the case of Naresh Kumar

Sharma (supra), was affirmed by the Division Bench of this Court in D.B. Civil Special Appeal (Writ) Number 1213 of 2012 (Rajasthan Public

Service Commission v. Naresh Kumar Sharma & Ors.), decided on 21st August, 2013. Moreover, a glance of the directions made in the case of

Naresh Kumar Sharma (supra), would reveal that those directions are in consonance with the policy of reservation as well as law declared by the

Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra).

Furthermore, the law declared by a Court willhave a retrospective effect, if not otherwise stated to be shown specifically. Hence, the principle of

law declared by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra), held the field while the respondent-Commission undertook the

recruitment process in the year 2004 involved herein. A Division Bench of this Court while dealing with somewhat similar controversy on a survey of

several earlier opinions of the Hon'ble Supreme Court, including in the case of Anil Kumar Gupta (supra), in a batch of intra-court appeals, lead case

being D.B. Civil Special Appeal (Writ) No. 472/2013 Neelam Sharma v. State of Rajasthan & Ors., held thus:--

The principle relating to horizontal reservation was explained by the Supreme Court in Indra Sawhney v. Union of India MANU/SC/0104/1993 :

1992 Supp (3) SCC 217 (para 812) as under:

[A]II reservations are not of the same nature. 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. Horizontal 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 this quota will be placed in the appropriate category; if he belongs to SC Category he will be

placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by

making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favor of Backward Class of

citizens remains- and should remain-the same.

A special reservation for women in respect ofemployment is made under Article 15(3). It is different from social reservation made under Article

16(4). The method of implementing special reservation, which is a horizontal reservation has been well explained by the Supreme Court in Anil Kumar

Gupta v. State of UP MANU/SC/0747/1995 : (1995) 5 SCC 173. (Para 18) as under:-- ""The proper and correct course is to first fill up the O.C. quota

(50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many

candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied -

in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation

candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding

number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and

adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen

percent in favour of special categories, overall, may be satisfied or may not be satisfied.)

The Supreme Court again in Rajesh KumarDaria v. Rajasthan Public Service Commission MANU/SC/7813/2007 : (2007) 8 SCC 785 which was

also a case from the State of Rajasthan has explained the method of implementing special reservation for women 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 nonreserved 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 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 (Supra), R.K. Sabharwal v. State of Punjab (MANU/SC/0259/1995 : 1995 (2) SCC 745), Union of India v. Virpal Singh

Chauvan (MANU/SC/0113/1996 : 1995 (6) SCC 684 and Ritesh R. Sah v. Dr. Y.L. Yamul (MANU/SC/0363/1996 : 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 Castes-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.

Let us illustrate by an example:

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from

out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by

including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two

SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such

list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC

candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting

the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]"" 6. The Division

Bench of this High Court at Jodhpur in Smt. Megha Shetty v. State of Rajasthan MANU/RH/1063/2013 : 2015 Volume (1) WLC (Rajasthan) 761 has

already dealt with exactly the same issue raised in the present bunch of appeals. The Division Bench relying upon the above-referred decisions of the

Supreme Court has held that in the event of woman candidate belonging to OBC category on securing more marks than the woman candidate of

general category finds a position in the select list of candidates of general category, the same cannot be treated as migration. And this decision of the

Division Bench is binding on us with which we also fully agree. It is also to be noted that none of the writ petitioners/respondents herein who are

women of general category has secured more marks than the women candidate of OBC category selected in open category. The select list of women

candidates prepared by the Rajasthan Public Service Commission is strictly in accordance with the law explained by the Supreme Court.

Thus, on a cumulative consideration of the facts, circumstances and materials available on record, it is evident that excessive reservation was

accorded to women candidates by the respondents in the recruitment to the post of Teacher Grade-III in response to the advertisement dated 2nd

June, 2004. It is also not disputed that in the matters involving the same recruitment process in response to the same advertisement dated 2nd June,

2004, the select list has been revised and successful candidates have been accorded appointments, as would be evident from document

(AnnexureR/7), placed on record along with the rejoinder, which is of 10th January, 2013, as reflected from the information published/uploaded on the

website of the respondent-Commission.

Therefore, the claim of the petitioner cannot be declined on the ground of delay. Moreover, the petitioner instituted the writ application in the year

2005 itself.

Learned counsel for the petitioners further urge that petitionrs would be satisfied if the State-respondents are directed to consider and decide the

representation of the petitioners, within a time frame in the backdrop of law declared by the Apex Court of the land in the case of Rajesh Kumar

Daria (supra) so also opinion of this Court in the case of Manoj Kuamr Tungariya (supra).

In view of the limited prayer addressed; the instant writ proceedings are closed with a direction to the petitioner to address a comprehensive

representation to the respondents ventilating their grievances.

In case, a representation is so addressed within the aforesaid period, the State-respondents are directed to consider and decide the same by a

reasoned and speaking order as expeditiously as possible in accordance with law, preferably within two months from the date of receipt of the

representation along with a certified copy of this order.

With the observations and directions, as indicated above, the writ application stands disposed off.