Vaibhav Vatsa vs State Of Uttarakhand And Another

Ramesh Ranganathan, CJ

Heard Mr. Tapan Singh, learned counsel for the petitioner, Mr. S.S. Chaudhary, learned Brief Holder for the State of Uttarakhand, and Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service Commission.

The petitioner, who belongs to the general category, submitted his application seeking appointment to various posts pursuant to the advertisement dated 11.03.2011. It is his case that, while 163 posts were advertised, the Uttarakhand Public Service Commission had filled up 229 posts; a select list was prepared on 23.08.2014 for 196 posts; 2% horizontal reservation was required to be provided under the dependants of freedom fighters category; since a select list was prepared of 196 candidates, the requirement of providing 2% horizontal reservation obligated the respondents to reserve four posts horizontally favour of dependents of freedom fighters; since only 1 post was horizontally reserved in favour of dependents of Freedom Fighters, as against four posts required to be reserved in their favour, the respondents should be directed to fill up the remaining three posts from among candidates who were dependents of freedom fighters; and, since the petitioner falls in the category of dependants of freedom fighters, he should be considered for appointment either to the category of Vice Principals or that of Commercial Tax Officers.

3 Mr. B.D. Kandpal, learned Standing Counsel for the Public Service Commission, would submit that the role of the Public Service Commission is only to conduct selection, and recommend candidates for appointment on the basis of the requisition submitted to it by the State Government; the number of posts, to be reserved in favour of various categories, is decided by the State Government, and are referred to in the letter of requisition sent by them to the Commission; in terms of the letter of the Government of Uttarakhand dated 21.01.2011, only one post was horizontally reserved in favour of dependants of freedom fighters in the category of Vice Principals; the petitioner's contention that 2% horizontal reservation, in favour of dependants of freedom fighters, should be computed on the total of 196 posts is not tenable; the advertisement was issued inviting applications to fill up different posts; and 2 % horizontal reservation is required to be computed with respect to each category of posts, and not on the basis of the total number of posts advertised.

Mr. S.S. Chaudhary, learned Brief Holder, would adopt the submission urged on behalf of Public Service Commission by Mr. B.D. Kandpal, learned Standing Counsel.

The requisition sent by the State Government to the Public Service Commission was to fill up 229 posts in 15 different categories. Except Category no. 12 which relates to the post of Vice-Principal and allied posts, and Category no. 15 which relates to the posts of Commercial Tax Officers, in none of the other 13 categories could horizontal reservation of 2 % been provided in favour of dependants of freedom fighters, since the total number of posts, sought to be filled up in these 13 categories, was 23 and below. Even with respect to Category 5, which relates to Assistant Commissioners (Commercial Tax) for which 23 posts were sought to be filled up, 2% horizontal reservation in favour of dependants of freedom fighters would be less than 0.5; and the State Government was, therefore, justified in not providing horizontal reservation, in favour of dependants of freedom fighters, under this Category also.

It is only with regards Category No. 12 in which 91 posts were sought to be filled up, and Category No. 15 in which 49 posts were sought to be filled up, was horizontal reservation of 2% applicable. As a result, since 2 % of 91 posts would come to 1.8, which is more than 1.5, two posts ought to have been horizontally reserved, in favour of dependants of freedom fighters, while filling up posts in the category of Vice-Principals and allied posts in Category No. 12. Likewise, since 49 posts were sought to be filled up in Category No. 15 i.e. Commercial Tax Officers, 2 % thereof would come to 0.98 which is more than 0.5 and, consequently, one post ought to have been reserved, in favour of dependants of freedom fighters, in that category. As against three posts required to be horizontally reserved in favour of dependants of freedom fighters (2 in Category No.12 and one in Category No. 15), the respondents have provided horizontal reservation, in favour of dependants of freedom fighters, only for one post in Category No. 12, and none in Category No.15. Therefore, there is a shortfall of one post reserved in favour on dependents of freedom fighters in Category No. 12, and one post in Category No.15. It does appear that the State Government has erred in complying with the requirement of providing 2% horizontal reservation in favour of dependents of freedom fighters.

The question which necessitates examination is to what relief the petitioner is entitled to. The short fall of two posts, required to be reserved in favour of dependents of freedom fighters (one in Category No.12 and one Category No. 15), are to be spread over between the General Category, the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes.

In the present case, one post has been horizontal reserved under the general category for dependants of freedom fighters, and that post has, admittedly, been filled up by appointing a candidate who was more meritorious than the petitioner. Even if the other two posts, (one each in Category No. 12 and 15) had been horizontally reserved in favour of dependants of freedom fighters, the petitioner cannot presume that both these posts would have been reserved in favour of dependants of freedom fighters only under the general category, as that would mean that no posts would be horizontally reserved, in favour of dependants of freedom fighters, under the OBC, the SC and the ST categories. Further, by the time the petitioner had invoked the jurisdiction of this Court, the Public Service Commission had already finalized the select list. Even though 2% horizontal reservation, in favour of dependants of freedom fighters, had not been provided, and even if it is presumed that these two posts should have been reserved only in the general category, (one each in Categories 12 and 15), selecting two dependants of freedom fighters, to now be appointed, would require the last posts filled up under the General Category (One each in Category Nos. 12 and 15) to be substituted by the most meritorious candidate belonging to the dependent of freedom fighters' category. Such an order could only have been passed if the last candidates in the select list, under both categories 12 and 15, had been arrayed as respondents in the writ petition.

While the petitioner has, no doubt, subjected the select list dated 23.08.2014 to challenge in this writ petition, he has not arrayed the last candidates in the general category (in both Category Nos. 12 and 15) as respondents in the writ petition. More than five years have since elapsed, and it would be wholly inappropriate for us, at this length of time, to now permit the petitioner to implead the last selected candidate as respondents; and, thereafter, examine, whether the petitioner was eligible to be appointed, in posts in categories 12 and 15, if horizontal reservation had been provided in favour of dependants of freedom fighters.

Viewed from angle, the petitioner cannot be granted the relief sought for in the writ petition. That does not, however, absolve the State Government from all blame for, instead of reserving three posts in favour of dependants of freedom fighters, (two in Category No. 12, and one in Category No. 15), they have provided reservation of only one post in Category 12, and none in Category No. 15. Reservation of posts, as prescribed in terms of Article 16(1) of the Constitution of India, should have been ensured by the State Government. Failure on the part of the State Government to do so, has resulted in the petitioner being forced to invoke the jurisdiction of this Court. While we no reason to grant the petitioner, the relief sought for in the writ petition, suffice it to direct the State Government to exercise greater care and caution in future; and ensure that the prescribed number of posts, to be horizontally reserved in favour of dependants of freedom fighters, are provided.

Subject to the aforesaid observations, the writ petition fails and is, accordingly, dismissed. No costs.