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Judgment
G. Minhajuddin, J.—This writ petition has been filed under Article 226/227 of the Constitution of India challenging the legality and validity of selection and appointment of respondent Nos. 4 and 5 to the post of Civil Judge. Class II by respondent Nos. 1 to 3, on the ground that principles governing horizontal reservation of 30% for women have not been correctly applied in computing reservation of women in the Unreserved Category, thereby wrongly depriving the petitioners from being appointed on the said post, despite their securing marks more than respondent Nos. 4 and 5, who have been appointed on the said post in excess of 30% reservation. Facts, in brief, as projected in the petition are that pursuant to the Advertisement No. 01/2003/Exam. dated 2-4-2003 issued by respondent No. 2/ Chhattisgarh Public Service Commission, whereby applications for recruitment to the post of Civil Judge. Class II, total 30 in number, were invited, the petitioners, who are practicing Advocates, submitted their applications, participated in the examination and interview. Thereafter, while preparing final select list, the petitioners, who secured total 127 and 125 marks respectively, were placed in the supplementary select list/waiting list. The legality and validity of selection and appointment of respondent Nos. 4 and 5 have been challenged on the ground that their selection under the reserved quota for women has been made in excess of the quota prescribed under Rule 6-A of the Chhattisgarh Lower Judicial (Recruitment and Conditions of Service) Rules, 1994 (hereinafter referred to as "the Rules, 1994") and Article 15(3) of the Constitution. Respondent Nos. 2/CGPSC wrongly interpreting the meaning and effect of horizontal reservation provided for women under Rule 6-A of the Rules, 1994 for women of Unreserved category, appointed respondent Nos. 4 and 5 on the post of Civil Judge Class II in the Unreserved category in excess of 30% horizontal and compartment-wise reservation quota as prescribed by the rules. The reservation for women is not social (vertical) reservation under Article 16(4) but it is a special reservation under Article 15(3) of the Constitution and as such, when the number of women candidates, who have found their places in the Open Competition (in short "OC") category, i.e., Unreserved category, complete the quota of 30%, then in that case, no further reservation can be made in favour of women. However, in the instant case, respondent No. 2 has implemented the horizontal reservation for women in such a way, which has the effect of making reservation in excess of 30% in favour of women candidates in Unreserved category (OC category) and for this reason, the same is arbitrary, unreasonable and violative of Article 14 of the Constitution as well as Rule 6-A of the Rules. 1994 and Article 15(3) of the Constitution.
Respondent Nos. 1 to 3 have filed their Returns, through which they have submitted that horizontal reservation, as provided by Article 15(3) of the Constitution and Rule 6-A of the Rules. 1994, have been correctly applied in computing 30% women reservation in Unreserved category. They have also averred that as per Rule 6-A of the Rules. 1994, reservation for women shall be horizontal and compartment-wise, meaning thereby that as per Explanation. 30% reservation shall be for women of each category, i.e., SC. ST. OBC and General. According to respondent Nos. 1 to 3, as 30% quota for women of General Category was not achieved in the Unreserved category, therefore, respondent Nos. 4 and 5, who are women of General Category, was selected under the reserved quota for women and placed in the select list, which is in consonance with the provisions of the Constitution and the Rules, 1994. They have also averred that two women candidates belonging to SC category, who has secured place in the select list of Unreserved category on the basis of their merit, cannot be counted against 30% quota reserved for women of General Category.
Respondent Nos. 4 and 5 have filed their joint Return and supported the averments made by respondent Nos. 1 to 3 in their Returns.
We have heard learned Counsel for the parties and perused the material available on record.
The core question to be decided in this petition is- whether in computing horizontal reservation for women in Unreserved category, the provisions of Article 15(3) of the Constitution and the Rules, 1994 have been duly complied with or not ?
Before proceeding further, it is necessary to quote Article 15(3) of the Constitution and Rule 6-A of the Rules, 1994, which has been incorporated in the said rules by amendment vide Notification No. 5412/21-B/Chh./2002, dated 12-8-2002, published in the Chhattisgarh Gazette (Extra-ordinary), dated 16-8-2002, which read as under:-
Article 15(3) of the Constitution:-
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- (1) *** ***
(2)*** *** ***
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
Rule 6-A of the Rules, 1994:-
6-A. Reservation of Post for Women.- Notwithstanding anything contained in Lower Judicial Service Rules, there shall be reserved thirty percent of all posts in the service under the State in favour of women at the stage of their recruitment and the said reservation shall be horizontal and compartment-wise.
Explanation:- For the purpose of this rule "horizontal and compartment-wise" means reservation in each category, namely Scheduled Castes, Scheduled Tribes and Other Backward Class and General.
It is not in dispute that social reservation of SC, ST and OBC under Article 16(4) of the Constitution is a vertical reservation, and a special reservation for physically handicapped and women under Articles 16(1) and 15(3) of the Constitution respectively, is horizontal reservation. Mark-sheets of the petitioners, issued by respondent No. 2, which have been annexed as Annexures P-6 and P-7 respectively, are also not in dispute. Further, the combined select list in order of merit filed by respondent No. 2 as Annexure R-2/3 is also not in dispute, according to which the petitioners, having secured 127 and 125 marks respectively, were over and above respondent Nos. 4 and 5 in order of merit, who secured 124.5 and 12 marks respectively. It is also an admitted fact that number of posts for Unreserved category was 16, out of which 5 posts were reserved for women. From the select list in order of merit (Annexure R-2/3), it is found that immediately above the petitioners, five women candidates at Sl. Nos. 2, 6, 9, 10 and 15, have secured their places on the basis of their merit in the select list on Unreserved category. It is also not in dispute that two women candidates of SC category, i.e., Sangh Pushpa Bhatpahri and Ranju Rautrai, who were at Sl. Nos. 2 and 6 respectively, have secured their places in the select list of Unreserved category on the basis of merit. According to the petitioners, while preparing final select list of Unreserved category, respondent No. 2 has wrongly applied the principles governing vertical reservation in case of horizontal and compartment-wise reservation for women in the instant case. Whereas according to the respondents, horizontal and compartment-wise reservation, as provided in the Rules, 1994 and Article 15(3) of the Constitution, has been correctly made applicable while preparing the final select list.
The difference between the nature of vertical reservation and horizontal reservation has been explained by the Hon''ble Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, , wherein in Para 9, it has been held 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 Article 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 non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, gel selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that 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 Indra Sawhney, R.K. Sabharwal Vs. State of Punjab, Union of India Vs. Virpal Singh Chauhan and Ritesh R. Sah Vs. Dr. Y.L. Yamul). 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 Caste 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.
(Emphasis supplied)
The principles of law laid down in the aforesaid judgment in the matter of Rajesh Kumar Daria (supra), have been subsequently reiterated by the Hon''ble Supreme Court in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht and Others, .
It is pertinent to mention that in the advertisement dated 2-4-2003, though which applications for recruitment to the post of Civil Judge, Class II were invited, only two categories, i.e., Reserved and Unreserved have been mentioned, and there is no mention of category by the name of "General" in the advertisement. It is also true that in the Explanation to Rule 6-A of the Rules, 1994, meaning of the word "horizontal and compartment-wise" reservation has been explained that "horizontal and compartment-wise" means reservation in each category, namely Scheduled Castes, Scheduled Tribes, and Other Backward Class and General". However, there is no category by the name of "General", as is evident from the abovementioned judgments of the Hon''ble Supreme Court in Rajesh Kumar Daria (supra) and Manila Bisht and others (supra), in which the Hon''ble Supreme Court has referred to "General category" as "Open Competition (OC) category". Further, in the circular/order No. 1999, (Annexure P-11), of Government of Madhya Pradesh, General Administration Department, Mantralaya, Vallabh Bhavan, which has been subsequently adapted by the State of Chhattisgarh, it has been specifically mentioned that in the advertisements for recruitment and in the official work, the word "General Category" should not be used and instead thereof, only the word "Unreserved" be used. Thus, in view of the above, it is clear that there is no category by the name of "General".
Learned Counsel for the petitioners have contended that in the Unreserved category, the women form a class by themselves, irrespective of the fact whether they belong to SC, ST, OBC or any other category. On the contrary, learned Counsels for the respondents have contended that as per provisions of Rule 6-A of the Rules, 1994, so far as Unreserved category is concerned, 30% horizontal and compartment-wise reservation is only for women belonging to General category, i.e., a category other than the reserved category. They have also contended that only by securing place on the basis of merit in the select list of Unreserved category, any women belonging to reserved category cannot be counted against 30% quota reserved for women of General category and therefore, two women belonging to SC category, who secured their places at Sl. Nos. 2 and 6 in the select list of Unreserved category on the basis of their merit, cannot be counted against 5 posts reserved for women of General category.
However, this contention of learned Counselor the respondents cannot be accepted in view of the fact that there are only two categories, i.e., Reserved and Unreserved or Open Competition category. As such, the women in the Unreserved category form a class in themselves, irrespective of the fact whether they belong to SC, ST, OBC or any category other than the reserved category. The Hon''ble Supreme Court in Para 9 of the its judgments in the matter of Rajesh Kumar Daria (supra), has held that "women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women". The instant case also relates to horizontal and compartment-wise reservation for women in Unreserved category. As the women in Unreserved category form a class in themselves, therefore, the women belonging to SC category, i.e., Sangh Pushpa Bhatpahri and Ranju Rautrai, who secured their places at Sl. Nos. 2 and 6 respectively. In the select list of Unreserved candidates will have to be counted against 5 posts reserved for women of so-called General category, i.e., Unreserved or Open Competition category. As such, after securing place at Sl. No. 15 of the select list of Unreserved category by Shraddha Shukla, 30% horizontal and compartment-wise reservation for women of General or Unreserved/OC category was achieved and there was no need for giving benefit of further reservation to respondent Nos. 4 and 5 after achieving 30% reservation. By doing so, respondent No. 2 has definitely committed a grave error and thereby wrongly depriving the petitioners from being selected to the post of Civil Judge Class II, who, admittedly, having secured marks more than respondent Nos. 4 and 5, were above them.
Now, the question arises, whether the selection of respondent Nos. 4 and 5 should be set aside at this juncture, and what relief can be granted to the petitioners in the present scenario ?
On the completion of selection process, the candidates were appointed in the year 2004 and have been serving as Judicial Officers for more than seven years. There have also been subsequent selection and appointments in the years 2006, 2008 and 2011. Respondent Nos. 4 and 5 have been serving as Judicial Officers since last more than seven years. In such a state of affairs, we are of the opinion that it would not be proper to set aside the selection and appointment of respondent Nos. 4 and 5 at this juncture for no fault of theirs. At the same time, it cannot be denied that the petitioners, who were entitled to be selected and should have been placed immediately below. Ku. Shraddha Shukla and above respondent Nos. 4 and 5 in the select list, have been wrongly deprived of their right to be appointed on the post of Civil Judge Class II by erroneous interpretation of horizontal and compartment-wise reservation by respondent No. 2.
Thus, in the totality of the facts and circumstances of the case, we deem it appropriate to direct respondent No. 1 to appoint the petitioners, subject to fulfillment of necessary formalities like police verification, etc., against the available vacancies for the post of Civil Judge (Junior Division). The seniority of the petitioners will, however, be reckoned from the date of their appointment. With the aforesaid observations, the petition is, accordingly, allowed. No order as to costs.