Rajeev Kumar and Others vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri Shailendra, learned counsel for the petitioners and the learned Standing Counsel for the respondents. The petitioners are aggrieved by the result declared on 16/17.6.2006 with regard to the post of Constables (Male) in U.P. Police Force at Fatehpur Centre. In so far as it has not made recruitment of vacancies reserved for Ex-servicemen to the extent of 5% quota prescribed in The Uttar Pradesh Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (herein after referred as ''1993 Act'').

The facts in brief are that: in the daily newspaper ''Amar Ujala'' an advertisement was published for recruitment of Constables (Male) in the U.P. Police Force. The number of vacancies notified were 5404. Vacancies were subdivided in 16 Recruitment Centers and at Fatehpur Recruitment Centre, 270 vacancies were allotted.

Reservation for various categories was provided in accordance with relevant provisions as applicable in the State of U.P.

All the petitioners are Ex-servicemen having rendered service in Indian Army and some of them are general and some belong to Other Backward Class. They all applied pursuant to the said advertisement. At various stages of recruitment process including physical test, written test, interview etc. they appeared.

The 1993 Act as amended in 1999, provided 5% vacancies in direct recruitment for Ex-servicemen. Therefore at Fatehpur recruitment centre against 270 vacancies, 5% Ex-servicemen quota comes to 13 vacancies. Therefore, vide 1993 Act as amended in 1999, 13 vacancies were liable to be filled in from Ex-Servicemen treating the same reserved vacancies.

The respondents however, declared 10 candidates successful in written test. Therefore all such candidates, belong to Ex-servicemen category could have been declared successful. Instead respondents finally declared only one candidate selected against the vacancies meant for Ex-servicemen resulting in denial of benefit of reservation of Ex-servicemen to the petitioners.

Respondents have filed a counter-affidavit wherein basic facts have not been disputed. It is, however, said that ten candidates who qualified in written test and belong to Ex-servicemen category, included petitioners No. 1 to 7 who obtained total marks as under.

It is also said that reservation for Ex-servicemen is horizontal. The candidates of this category have to be adjusted in the respective categories of vertical unreserved/reserved vacancies like general, Scheduled Caste, Scheduled Tribe and Other Backward Class. Unless the Ex-servicemen would have secured marks at par with the candidates belong to the above vertical categories i.e. general, SC, ST and OBC etc., they would not qualify. The petitioners secured marks less than the marks of last selected candidate belong to general, SC, ST and OBC categories, hence they have not been selected. It is said that against 13 vacancies only one person could be selected.

Learned Standing Counsel reiterated the stand taken by the respondents in the counter-affidavit. Reliance has been placed by respondents on a Government Order dated 30.12.1993. Paras 3 and 4 thereof reads as under:

In Government Order dated 22.10.2001 which also reads in similar way has also been relied and for ready reference the order reads as under:

Learned counsel for the petitioner contended that the reply of respondents clearly show that they have misunderstood the manner in which horizontal reservation like Ex-servicemen has to be applied.

The two Government Orders referred above only mention that reservation for Ex-servicemen, dependents of Freedom Fighters and Physically handicapped persons being horizontal in nature, the candidates selected against vacancies meant for three respective categories shall be placed and counted against vertical categories like general, SC, ST and OBC etc. for considering representation of these categories. The two Government Orders do not have the effect of nullifying reservation made for three categories namely Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen as an integral part of other kind of vertical representation in all respect ignoring its separate identity. This Court is of the view that respondents have completely misdirected themselves and misread the said Government Orders, they have failed to implement the same correctly.

The concept of vertical and horizontal reservations have been explained by the Courts time and again. In Indra Sawhney Vs. Union of India (UOI) and Others, , the Apex Court, while referring aforesaid two types of reservation has said:

812 We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservation, 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 favour of backward class of citizens remains-and 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.

This has been reiterated in para 83 of the judgment in Jitendra Kumar Singh and Another Vs. State of U.P. and Others, .

We have also considered the submissions made by the learned counsel. It is accepted by all the learned counsel for the parties that these vacancies had to be filled by applying the principle of horizontal reservation. This was also accepted by the learned Single Judge as well as by the Division Bench. This is in consonance with the law laid down by this Court in Indra Sawhney case (SCC pp. 735, para 812).

The manner of applying horizontal reservation is that the vacancies reserved in this categories have to be filled in separately by the candidates belong to this category. However, the candidates shall always belong to any of the three categories namely general, SC, ST or OBC. After selection of candidates against vacancies attracting horizontal reservation, they shall be placed in their respective vertical category like, General, OBC, SC, ST. Thereafter against remaining vacancies of vertical reservation, the matter shall follow. The mere fact that one is one of the four categories mentioned in 1993 Act, it would not mean that he has to compete with candidates who belong to one of these later categories i.e. vertical categories. For example, a SC candidate would compete against the vacancies reserved for scheduled Caste as also unreserved vacancy but for him the vacancies reserved for persons i.e. dependents of Freedom Fighters and EX-servicemen are not open for competition. However, a Scheduled Caste candidate who also happens to be Physically Handicapped or Dependents of Freedom Fighter or an Ex-servicemen, besides the fact that he would be eligible and entitled to be considered against vacancies reserved for SC and other vacancies, would also compete against vacancies reserved for Physically Handicapped person, Ex-servicemen or the Dependent of Freedom Fighter as the case may be.

In reservation under 1993 Act, all Physically Handicapped etc, if belong to vertical reserved category like SC, ST and OBC, they would take away vacancies to the extent they are selected. If above three categories of persons under 1993 Act are required to compete with other candidates like general, OBC, standing counsel and ST, it would nullify the very reservation made under 1993 Act.

This Court is of the view that the respondents ought to have been more careful in understanding this concept and must have gone through the judgments given by Apex Court in this regard in Indra Sahni (supra) and the recent one Jitendra Kumar Singh (Supra).

Non-selection of petitioners against vacancies meant for Ex-servicemen on the ground that they have secured less marks than the last selected candidate belong to General or OBC or SC is wholly illegal. The general candidate or OBC or SC, who are not Ex-servicemen, cannot compete with petitioners in respect of vacancies meant for the petitioners. The Ex-servicemen quota has to be filled in separately by taking it as a separate unit. When the aforesaid quota is filled in, the candidates thereafter will be adjusted in the respective category like General, SC, ST or OBC as the case may be then only the remaining vacancies in the latter category shall be filled in.

In the result, the writ petition is allowed. The Respondents are directed to reconsider claim of petitioners against vacancies meant for Ex-servicemen at Fatehpur Recruitment Centre in accordance with law & in the light of observations made herein above. In case they otherwise qualify, the respondents shall take consequential step for their appointment. If in doing so, any of the respondents 6 to 13 are to be uprooted, obviously, appropriate orders shall be passed after giving due opportunity to him/them. However, it is further provided that in case there are sufficient number of vacancies available, the respondents may consider to accommodate such respondents 6 to 13, instead of dispensing his/their services considering the fact that he/they have rendered more than four years of services by now and have acquired sufficient experience in training etc.

The writ petition is allowed in the manner as above. It is also made clear that in case petitioners are ultimately found successful, appointment in service shall take effect from the date the respondent Nos. 6 and 13 were appointed with all consequential benefits except arrears of salary which shall be paid from the date of appointment. This exercise shall be completed within two months from the date of communication of a certified copy to the concerned authority. No costs.