Bhuvnesh Pachauri vs State Of U.P. And 2 Others
2017 Latest Caselaw 7318 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
Court No. - 28
 

 
Case :- WRIT - A No. - 2736 of 2016
 

 
Petitioner :- Bhuvnesh Pachauri
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Kshitij Shailendra
 
Counsel for Respondent :- C.S.C.,Q.H. Siddiqui
 

 
Hon'ble Siddharth,J.

Heard Shri Kshitij Shailendra, learned counsel for the petitioner and Shri Q.H. Siddiqui, learned counsel for the respondents.

The petitioner has filed the above noted writ petition, praying for the following reliefs:-

" i). Issue a writ or direction or pass an order in the nature of Certiorari quashing/ modifying the final select list published in June,2015, furnished upon the petitioner vide information dated 27.11.2015, by the Uttar Pradesh Jal Nigam to the extent it ignores the consideration of the petitioner's name based upon his merit and the reservation applicable to 2% reserved quota for the category of DEPENDENTS OF FREEDOM FIGHTERS for the post of Junior Engineer (Civil) and 5% relaxation in marks obtained;

ii). Issue a writ or direction or pass an order in the nature of Mandamus commanding the respondents to appoint the petitioner on the post of Junior Engineer (Civil) on one of the 4 vacant posts by giving due consideration to the 2% reserved quota for the category of DEPENDENTS OF FREEDOM FIGHTERS and 5% relaxation in marks obtained.

iii). Issue a writ or direction or pass an order in the nature of Mandamus restraining the respondent- corporation for filling up 4 vacant posts of Junior Engineer (Civil) in pursuance of the selection finalized in pursuance of the advertisement dated 03.10.2013 or otherwise.

iv). Issue any other suitable writ or direction or pass an order as this Hon'ble Court may deem fit or proper in the facts and circumstances of the case; and

v). Award costs of the writ petition to the petitioner."

The petitioner belongs to the category of "Dependents of Freedom Fighters" (General) and in response to an advertisement dated 03.10.2013, by the U.P.Jal Nigam, he applied for the post of Junior Engineers (Civil). The petitioner appeared in Written Examination in the year 2014 and only 5 candidates belonging to the category of the petitioner aforesaid were called upon to appear in Interview.

The petitioner is not aggrieved by the selection of 5 persons, but is aggrieved by his exclusion from the zone of consideration inasmuch as, as per law, 2% seats were required to be reserved for the "Dependents of Freedom Fighters". The total seats advertised were 469 and 2% thereof comes to 9.38, hence 9 posts were required to be reserved for the aforesaid category, but only 5 candidates were invited for interview and all of them were selected.

A Counter Affidavit has been filed on behalf of the respondent nos. 2 and 3, U.P. Jal Nigam and its Chief Engineer, respectively, stating that in the Written Examination, the cut off marks for qualifying for interview was fixed as 42, but the petitioner obtained only 34 marks, therefore he was not called for interview and the remaining 4 posts remained unfilled. As per Section-3(5) of U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act 1997, when suitable candidates are not found the vacancies are carried over to the next recruitment.

The petitioner has filed his Rejoinder Affidavit stating that the cut of marks of 42 was for the General Category and for the Reserved Category, it should have been lowered and the respondents have acted against the dictum of the Apex Court in the case of Indira Sawhney Vs. Union of India, 1992, Suppl. (3) SCC 217.

The petitioner has also filed a Supplementary Rejoinder Affidavit bringing on record documents pertaining to other examinations conducted by different departments, where the cut of marks for the Reserved Category Candidates are fixed lower to the marks fixed for the General Category Candidates.

The petitioner has relied upon the Apex Court Judgment in the case of Anil Kumar Gupta & others Versus State of U.P. and others, 1995 AWC Page 1653; Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & others, (2007) 8 SCC 785; Jitendra Kumar Singh and another Vs. State of U.P. and others, (2010) 3 SCC 119. All these cases deal with the method of implementing Special Reservation, which is a horizontal reservation, cutting across vertical reservation.

These cases are not relevant for deciding the controversy involved in the writ petition i.e., whether in the absence of required number of candidates not qualifying in the Written Examination, the cut of marks fixed can be lowered, to fill the quota of seats reserved for the special category candidates entitled to adjustment on the principle of horizontal reservation.

The Counsel for the petitioner has relied upon the Judgment of Apex Court in the case of Justice Sunanda Bhandare Foundation Vs. Union of India, 2014 (3) AWC 2779 (SC) and All India Confederation of Blind & another Vs. Union of India and another, (2017)3 SCC 525, in support of his argument that relaxation of 5% in cut off marks was provided by the University Grants Commission to the persons with visual disability for appearing in N.E.T. for Junior Research Fellowship and Lectuership. In this Judgment, the Apex Court has taken note of the fact that 5% relaxation was already granted to the S.C and S.T Candidates, as per the Maintenance of Standard, 1998 of the Universities, and therefore, if the same benefit was extended to the Blind / Low Vision Candidates belong to the General Category by the U.G.C., then there would be parity amongst all persons with disabilities, irrespective of their vertical categories. Clearly this is not the case of the petitioner that prior to his appearance in the competitive examination, there was some law/rule providing any relaxation in cut off marks to candidates of any vertical or horizontal category. In the present case, the petitioner is arguing that after he failed to secure the cut of marks of 42, since the post of horizontal category to which he belongs were lying unfilled, therefore, by lowering the cut off marks he should have been called for interview. This argument can not be accepted in view of the settled law that once the petitioner submitted himself to the procedure of selection and became unsuccessful, he can not turn around and protest against the terms of process of selection. The theory of approbate and reprobate estopps him from doing so.

The learned Counsel for the petitioner has further relied upon the Judgment of this Court in the case of Dr. Shiv Vinayak Tripathi Vs. State of U.P. and others, 2016 (4) AWC 3861. In this case the U.P. Public Service Commission invited candidates in the ratio of 1:8 for screening and there after they were short listed in the ratio of 1:3. Thereafter, the Commission lowered the merit of O.B.C. Category and invited candidates in the ratio of 1:12 in interview, which was held to be against the constitutional mandate by this Court. This case also does not supports the case of the petitioner and is rather against him.

The Hon'ble Supreme Court in the case of Union of India and others Vs. M. Selvakumar and another, (2017) 3 SCC 504 did not accept the contention of the Physically Handicapped Candidates belonging to O.B.C. Category to increase the number of attempts in Civil Service Examinations, on account of their horizontal reservations. In the case of Andhra Pradesh Public Service Commission Vs.. Baloji Badhavats and others, (2009) 5 SCC 1, the question before the Hon'ble Supreme Court was whether short listing of the candidates for main examination of Group-I Services in the State of Andhdra Pradesh in the ratio of 1:50 to total number of vacancies basing on preliminary examination, and non fixation of communitywise cut off marks infringed the right to reservation of the candidates belonging to the reserved communities?. The Hon'ble Supreme Court held in the negative as follows:

"18. The Constitution of India lays down provisions both for protective discrimination as also affirmative action. Reservation of posts for the disadvantaged class of people as also seats in educational institutions are provided for by reason of Articles 15 and 16 of the Constitution of India. Reservation made for the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes would, however, is subject to Article 335 of the Constitution of India. Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued. [ See C.A. Rajendran v. Union of India, SCR at pp. 731-33; Indra Sawhney vs. Union of India, SCC paras 165 to 169, 428 to 432, 741 and 742; Ajit Singh (II) v. Sate of Punjab SCC paras 32 to 39 and State of Punjab v. Manjit Singh, SCC paras 7 and 12]."

In view of the above factual and legal position, no relief can be granted to the petitioner regarding his prayer for lowering of cut off marks for his social category of reservation. However, it is open for the petitioner to apply for reserved vacancies carried over for the next recruitment as per U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1997. The Writ Petition is dismissed, but without any costs.

Before parting with the case, it would be unfair to record appreciation for the fair assistance of Sri Kshitij Shailendra, Advocate, Counsel for the petitioner to the Court, in deciding this case.

Order Date :- 27.11.2016

Ruchi Agrahari