Rooma Devi vs Uttarakhand Subordinate Service Selection Commission & Another

Lok Pal Singh, J

1) Petitioner has filed this writ petition seeking writ in the nature of certiorari for quashing the provisional merit list dated 07.03.2019 / 08.03.2019,

issued by respondent no. 1, in part to the extent the name of the petitioner is not included in the said list. A further prayer has been made commanding

and directing the respondent no. 1 to recommend the name of the petitioner for appointment on the post of stenographer / Personal Assistant in

pursuance of the result dated 27.02.2018 / 05.03.2018 in respect of recruitment process initiated vide advertisement no. 03 of 2015 for Group

‘C’ posts of Stenographer / Personal Assistant and further to direct the respondent no. 2 to give appointment to the petitioner in pursuance

thereof in the appropriate department.

2) Brief facts, leading to filing of present writ petition, are that Uttarakhand Subordinate Service Selection Commission (hereinafter referred to as

‘the Commission’) issued an advertisement no. 03 of 2015 dated 20.11.2015 for recruitment on various Group ‘C’ posts, including 176

posts of Stenographers / Personal Assistants in different Government Departments. The minimum eligibility provided for recruitment on such post was

Intermediate or equivalent examination as well as speed of 80 words per minute in Hindi Shorthand and 4000 key depressions per hour in computer

typing. In respect of Irrigation Department and Rural Construction Department, a further eligibility was provided for having CCC certificate from

DOEACC or qualified in computer course being run by the Madhyamik Shiksha Parishad, Uttarakhand. The last date of submission of application

form was 28.12.2015. Further for Irrigation Department, instead of typing speed of 4000 key depressions per hour, speed of 25 words per minute in

Hindi Typing was prescribed as qualifying criteria. As per the advertisement, for recruitment on the posts of Stenographer / Personal Assistant, a

written examination of 100 marks with objective type questions with multiple choice will be held and a test of shorthand for 80 words per minute and

Hindi Typing on computer with the speed of 4000 key depression per hour will be held. It was also provided in the said advertisement that there will be

one mark for each right answer and a deduction of ¼ marks for each wrong answer.

3) The petitioner is a resident of State of Uttarakhand and belongs to OBC category of the State. It is stated in the writ petition that the petitioner is

entitled for reservation under the OBC quota and also for OBC (women) quota in public employment in the State of Uttarakhand. The petitioner

fulfills the educational qualification as per the eligibility criteria prescribed in the advertisement. Petitioner applied for the post of Stenographer /

Personal Assistant in pursuance of the said advertisement against OBC (women) quota. She qualified the written examination with 70.75 marks out of

100 marks and was called for the computer typing test. The petitioner also qualified the computer tying test and thereafter the stenography test too. It

is stated that the marks were awarded to the candidates only in the written examination and the typing test as well as the stenography test were

merely qualifying examination. The merit list was to be prepared only on the basis of marks awarded in the written examination. It is also stated that

the Commission issued the result of the said recruitment process on 24.08.2017 and called upon the successful candidates to appear before it for

verification of their original documents. It is alleged that though the petitioner scored 70.75 marks in the written examination and qualified the typing

and stenography test, yet her name did not figure in the merit list. Thereafter, result of the petitioner was displayed on the website of the Commission

wherein it was shown that she had qualified the written examination, typing and shorthand examination, but surprisingly she was not allotted any

department.

4) It was also stated that subsequently, an Office Memorandum dated 13.10.2017 was issued by the Commission mentioning therein that in respect of

176 posts, total 120 candidates were called upon for verification of their documents and out of 120, 114 candidates appeared for verification of their

documents. However, before the verification of documents could take place, some of the candidates showed their inability of not possessing CCC

computer certificate, as required for selection in the Irrigation Department. It was also mentioned in said Office Memorandum that the Commission

found that out of total 114 candidates, who appeared for verification of their documents, 73 candidates were such candidates, who have opted for

Irrigation Department and Rural Construction Department but did not possess CCC computer certificate. Thus, these 73 candidates were asked to

submit their explanation in respect of non-furnishing of CCC computer certificate. Thereafter, one more Office Memorandum dated 13.10.2017 was

issued claiming that several complaints were received that the evaluation of shorthand answer sheet has not properly been conducted and answer

sheets of shorthand test were uploaded on the official Website of the Commission. Thereafter, complaints were received and it was found that almost

36 candidates, who have committed more than 20 mistakes were declared successful by considering that they have committed less than 20 mistakes in

their answer sheets. In view of such complaints, the Commission decided that the answer sheets of all the candidates who appeared in shorthand test

be re-evaluated and in the meantime the result of examination of Post Code 07, i.e., Stenographer / Personal Assistant was withheld. Modified result

dated 27.02.2018 / 05.03.2018 was published by the Commission and the mandatory condition of CCC computer certificate was relaxed.

5) It is contended that in the revised result so published, petitioner’s name figured at sl. no. 15 of the said list against OBC candidate and the

petitioner was declared qualified. It is alleged that in the earlier result dated 24.08.2017, total 120 candidates were declared successful out of which

114 candidates appeared for verification. However, the modified result dated 27.02.2018 / 05.03.2018 was issued for 126 candidates out of which 24

candidates were shown as disqualified. Thus, in the modified result total 102 number of candidates were shown as qualified. The petitioner was also

declared qualified in the list of those 102 qualified candidates, but no department was shown to be allotted to her in the said revised result.

6) In the meantime, a few candidates out of said 24 candidates, who were declared disqualified in the modified result, filed Writ Petition no. 628 (S/S)

of 2018, Shashank and others Vs Uttarakhand Subordinate Service Selection Commission and others, before this court assailing the modified result

dated 27.02.2018 and 05.03.2018. An interim order was passed by this Court vide order dated 11.04.2018, staying the operation of the impugned result

dated 05.03.2018. A co-ordinate Bench of this Court while disposing of the said writ petition vide judgment and order dated 27.11.2018, directed the

Commission to re-conduct the shorthand test for those 24 candidates, who were declared disqualified in the modified result dated 27.02.2018 /

05.03.2018. In compliance of judgment and order dated 27.11.2018 passed by this Court, the Commission conducted fresh shorthand examination of

those 24 candidates. Out of those 24 candidates, 02 candidates qualified in the re-examination.

7) The grievance of the petitioner is that though she was declared qualified in the modified result dated 27.02.2018 / 05.03.2018, but was not issued the

appointment order and was not allotted any department. When the petitioner came to know about the disposal of the said writ petition, she waited for

her appointment order pursuant to her selection in the modified result, but to no avail. Feeling constrained, petitioner sought an information under Right

to Information Act from the Commission enquiring about the status of her appointment. The petitioner was informed on 21.01.2019 that the

recommendations for all selected candidates have been sent to the concerned employer and the process for appointment is to be completed by the

employer concerned. Still feeling dissatisfied, petitioner filed first appeal before the appellate authority of the Commission in regard to non-furnishing of

correct information under the Right to Information Act. During the course of hearing of first appeal, the petitioner was apprised that she could not be

given appointment despite her qualifying the written examination as well as typing and shorthand test, as there was no vacancy available under the

OBC (women) quota. The first appeal thus stood disposed of vide order dated 05.03.2019.

8) According to the petitioner, what has been communicated to her is that though she had qualified the written, computer typing and shorthand

examinations, yet she could not be given appointment as the cut off merit for OBC (women) quota seat was above the marks (70.75) obtained by the

petitioner in the written examination.

9) A counter affidavit has been filed by respondent no. 1 / Commission, stating therein that the petitioner submitted her application form under the

OBC category. She was called for written, computer typing and shorthand test as part of the examination as per her merit. After conducting these

tests, a merit list was published. In said merit list, the cut off marks for the OBC candidate and OBC (women) candidate were 72.50 and 73.75

respectively. Since, the petitioner secured only 70.75 marks which were less than the marks secured by the last candidate selected in the OBC

category [OBC or OBC (women)], the name of the petitioner did not find place in the merit list and accordingly she was not selected. It is stated that

after the recommendations of the first phase selection, against the remaining vacant posts, candidates were called for typing and shorthand test, which

were four times in number of vacancies vide merit list dated 07.03.2019. It is contended that since no post of OBC (women) was available, therefore,

for the remaining vacancies none of the candidates belonging to OBC (women) could find place in the said merit list dated 07.03.2019, whereby the

candidates, four times in number of the available vacancies, were called for typing and shorthand test. The cut off marks for OBC category

candidates in the said list are 72.75 and for General category candidates are same are 74.50 respectively, which are far ahead the marks obtained by

the petitioner. Thus, she was not called for the typing and short hand test. Denying the averment made in the writ petition that the petitioner must have

been called against the seat reserved for the General (women) whose cut off marks are 70.00 while she obtained 70.75 marks in the OBC quota, it is

specifically stated that the horizontal reservation would be available to a candidate only in the category to which he / she belongs. Since the petitioner

had applied under OBC category, she is not entitled to be selected against the vacancies reserved for the General (women) category which is a

horizontal reservation.

10) In the rejoined affidavit, the contents of paragraph 3A of the counter affidavit were denied. It is stated that in the merit list the cut off marks for

OBC candidate and OBC (women) were 72.50 and 73.75. From a perusal of the result dated 24.08.2017 it is revealed that the candidate, who is OBC

(women) candidate and whose name figured at sl. No. 44, secured 71.50 marks and not 73.75. In reply to paragraph 3B, it has been stated that the

respondent has wrongly contended in paragraph 3B that there was no post of OBC (women) available and, therefore, none of the candidates

belonging to OBC (women) category was called. Further, the OBC candidate cut off marks in the said list was 72.75 and cut off marks for General

category were 74.50. A perusal of the provisional merit list dated 08.03.2019 would reveal that the General (women) having cut off marks between

70.00 to 70.75 were called for shorthand and typing. Denying the contents of paragraph 9 of the counter affidavit, it has been stated that after re-

examination the modified result was issued by the Commission and name of the petitioner figured at serial no. 15 of the merit list, despite that she was

not given appointment. It has been stated that the documents on record would reveal that the petitioner secured 70.75 marks, her name figured in the

merit list dated 05.03.2018, yet she was denied appointment and further by means of the provisional merit list dated 08.03.2019, women candidate

having less marks than the petitioner, i.e. 70.00 have been called for shorthand and typing test. Lastly, it is stated that the petitioner being a woman has

been entitled to be considered against women in General category in case no vacancy is available in OBC (women) quota as she had secured more

marks than the General (woman) category candidate.

11) Heard learned counsel for the parties and perused the counter affidavit, rejoinder affidavit & other documents brought on record.

12) The first and foremost argument of learned counsel for the petitioner is that in case a reserved category candidate cannot be given appointment

under his / her category either because of merit or because of less number of vacancies, such candidate can compete against the general category

candidate and if the marks obtained by a reserved category candidate is more than the last cut off merit of the general category, the reserved

category candidate is liable to be considered in the general category.

13) To buttress his submission learned counsel for the petitioner drew attention of this Court towards a judgment rendered by Division Bench of this

Court in Writ Petition (S/B) no. 392 of 2017, Sudhir Kumar Vs State of Uttarakhand and others, decided on 11.12.2018. It is argued that the

controversy involved in the present case is squarely covered by the said judgment.

14) Before further discussion it would be appropriate to reproduce herein the relevant paragraphs of the aforesaid judgment. The same are excerpted

hereunder:

“6. In the present case, one post was reserved in favour of ex-servicemen under the general category. The fourth respondent, who was selected

against the said post, had secured only 776 marks as against the 807 marks secured by the petitioner. If appointment to the said post, earmarked for

ex-servicemen, had been made strictly on the basis of merit alone, irrespective of the category to which the applicant belonged, the petitioner would

have been selected for appointment to the ex-servicemen post, reserved horizontally under the general category, on the basis of his merit. The fact

that he belongs to the Scheduled Castes cannot result in his being deprived of his right to be considered on the basis of his own merit which, in the

present case, is higher than that of the fourth respondent. The petitioner secured more marks, in the main examination, than the marks secured by the

fourth respondent. Despite the petitioner having secured more marks, he was not appointed to the post of Deputy Collector and the fourth respondent,

who was far less meritorious than he, was selected only on the ground that the petitioner belonged to the Scheduled Caste and was not entitled,

therefore, to compete for the post horizontally reserved in favour of ex-servicemen under the general category.

The respondent-Public Service Commission has selected the 4th respondent on the erroneous premise that the ex-serviceman post, in the general

category, is unavailable to ex-servicemen either from the Other Backward Classes, the Scheduled Castes or the Scheduled Tribes. Accepting this

submission would result in an indirect mode of communal reservation being reintroduced, which the Supreme Court had frowned upon in The State of

Madras Vs Sm. Champakam Dorairajan & another, AIR 1951 SC 226. While vertical reservation, not exceeding 50%, can be provided in favour of

the socially and educationally backward sections of society such as the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes,

horizontal reservation is permissible in each of the aforesaid categories, as also in the general category, in favour of women, physically handicapped,

ex-servicemen etc. While horizontal reservation can be provided in the general category also, all candidates are entitled to compete, for the

horizontally reserved posts, on their merit provided they fall under the category for which horizontal reservation is provided. Consequently all

candidates, who belong to the ex-servicemen category, are entitled to be considered on their merit to the post earmarked in favour of ex-servicemen

under the general category irrespective of whether they belong to the Other Backward Classes, the Scheduled Castes, the Scheduled Tribes or do not

belong to any of these reserved categories. The most meritorious among the ex-servicemen is required to be selected and appointed to the post

earmarked for ex-servicemen under the general category.

Viewed from any angle, we are satisfied that the Uttarakhand Public Service Commission has erred in not appointing the petitioner in the post

earmarked for ex-servicemen under the general category, though he secured more marks than the fourth respondent, solely on the ground that he

belonged to the Scheduled Castes category. The selection of the fourth respondent is set aside. The Public Service Commission shall, forthwith,

forward the petitioner’s name to the Government for necessary orders to be issued appointing him in the post of Deputy Collector under the quota

of ex-servicemen earmarked under the general category.

The writ petition is allowed. However, in the circumstances, without costs.â€​

15) The facts and the law governing the field in the case in hand are identical to that of the aforesaid judgment. There is substance in the argument

advanced by learned counsel for the petitioner, inasmuch as, the case of the petitioner is that she scored 70.75 marks in the written examination. The

OBC candidates having 73.50 to 73.25 have been called for typing and shorthand test; the general candidates having marks between 76.25 to 74.75

have been called for typing and shorthand test and general women having marks between 70.75 to 70 have been called for typing and shorthand test.

It is also the case of the petitioner that she qualified the written examination and her name figured in the merit list and, there after, she was called for

typing and shorthand test. She also qualified both the tests and her name figured in the modified result dated 27.02.2018 / 05.03.2018. Despite that she

was not given appointment stating that there is no vacancy under the OBC (women) quota.

16) Learned counsel for the State fairly admits to the above proposition.

17) Having considered the pleadings of the parties as also the ratio of the judgment rendered by the Division Bench of this Court in aforesaid case, this

Court is convinced that the Commission was not justified in rejecting the petitioner for her appointment on the post earmarked for the OBC (women)

under the general category, as she had secured more marks than the general (women) category, solely on the ground that there exists no vacancy

under the OBC (women) quota on which she could be given appointment.

18) In view of the foregoing discussion, the writ petition succeeds. The provisional merit list dated 07.03.2019 / 08.03.2019, issued by respondent no. 1,

is quashed to the extent the name of the petitioner is not included in the said list. A writ of mandamus is issued directing the Uttarakhand Subordinate

Service Selection Commission to recommend the name of the petitioner for her appointment on the post of Stenographer / Personal Assistant in

pursuance of result dated 27.02.2018 / 05.03.2018 in respect of recruitment process initiated vide advertisement no. 03 of 2015. Respondent no. 2 is

also directed to give appointment to the petitioner as per her merit in the appropriate department in pursuance of the recommendation sent by the

Public Service Commission to it.

19) However, there will be no order as to costs.