Suresh Patel vs State of Chhattisgarh and others

Hon''ble Mr. Abhay Manohar Sapre, J.—This is an appeal filed by the writ petitioner of W.P. (S) No. 1330/2009 u/s 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 against the order dated 21/3/2012 passed in aforementioned writ petition. By the impugned order, the learned Single Judge dismissed the writ petition filed by the appellant and in consequence declined to grant the relief(s) claimed by the appellant/petitioner in the writ petition.

So the question, which arises for consideration in this appeal is whether the learned Singh Judge was justified in dismissing the appellant''s writ petition?

Facts of the case are short:

The short question before the writ Court was whether appellant (writ petitioner) was eligible for being appointed to the post of Shiksha Karmi (Grade-I) (Commerce) at Kanker District on the strength of his 8th position in merit list as candidate from general category ?

This question was answered by the writ Court against appellant (writ petitioner) holding that looking to his position in merit list and comparing his case with that of candidates coming from other stream of SC, ST, and OBC, coupled with the fact that some appointees to the post were not impleaded as party respondent in the writ petition, the writ petitioner is not entitled to claim the appointment to the post in question.

Having heard the learned counsel for the appellant and on perusal of the record of the case, we are in agreement with the view taken by the writ Court in the impugned order and agreeing with the eventual conclusion of dismissal of the writ petition also dismiss this appeal.

It is not in dispute that appellant belongs to general category of candidate''s i.e. non-reserved post. His grievance that one candidate from SC/ST/OBC was adjusted against the general category list on the basis of his merit and hence the seat earmarked for such candidate out of his category is lost and it be now offered to the appellant and secondly some candidates having secured less marks were selected as against the appellant who secured more marks thereby depriving the appellant from the appointment in question has no substance.

So far as his first grievance is concerned, it stands answered against the appellant in the light of law laid down by the Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others, ]. It is in this case their Lordship while explaining the scope, ambit and distinction of what is known as "vertical reservation" and "horizontal reservation" held that if candidates belonging to reserved category compete for non-reserved posts and are appointed to such non-reserved posts on their own merit, yet their number already fixed will not get reduced to that extent and would not be counted against the quota reserved for such respective class. It will remain intact.

In the light of such clear pronouncement on the issue, it is now clear that even if any candidate belonging to backward class is adjusted against the non- reserved post due to his merit, the seats reserved for such backward classes would not get reduced in number and will remain the same as already fixed for being filled amongst the said class. It is for this reason, in our opinion, the appellant can not raise any objection that some candidates from backward classes could not have been adjusted in non- reserved list due to their merits and if adjusted then their seats must be offered to candidates coming from the general quota or to that extent, the seats gets reduced in their quota. It is not permissible.

Since the appellant belongs to non reserved category, his merit will have to be compared from the candidates belonging to his category.

So far as other issue regarding his merit is concerned, we have perused the merit list and find that appellant was essentially comparing his merit with the merits of those candidates who belonged to SC/ST/OBC category and whose % of marks were lower then the appellant. In our view, the appellant could not with a view to claim appointment compare his merit with the candidates belonging to SC/ST/OBC whose % of marks were always lower in % as compared to the candidates belonging to non-reserved category. He was however, unable to show that any candidate belonging to non-reserved category like him and who secured less % of marks than him was given the appointment thereby depriving him of the appointment to the post. All that he could show was the names of candidates belonging to SC/ST/OBC and by showing their names; the appellant was not entitled to get any benefit.

In the light of foregoing discussion, we find no case to take a different view than the one taken by the writ Court while dismissing the writ petition (though writ Court gave some different reasoning such as non- joinder of necessary parties was fatal to the writ petition etc.) and while concurring with the eventual conclusion arrived at by the writ Court and further coupled with our reasoning given supra, we find no merit in this appeal. As a consequence of foregoing discussion, the appeal thus fails and is accordingly dismissed in limine.