Savankumar vs The State Of Maharashtra
2013 Latest Caselaw 170 Bom

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                             1


                                            




                                                              
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                    BENCH AT AURANGABAD




                                      
               WRIT PETITION NO.9544 OF 2011




                                     
     Savankumar s/o Jagdishchandra Mandwal,
     Age-26 Years, Occu:Service (Presently Nil),
     R/o-Mosicol Oil Mill, Railway Station Road,




                           
     Hingoli, Taluka and District-Hingoli. 
                                     ...PETITIONER 
                 
            VERSUS             
                
     1) The State of Maharashtra,
        Through Secretary,
        Rural Development and Water
        Conservation Department,
      

        Mantralaya, Mumbai,
   



     2) Chief Executive Officer,
        Zilla Parishad, Hingoli.   
                                        ...RESPONDENTS





                          ...
        Shri. Santosh S. Jadhavar Advocate for  
        Petitioner.
        Shri. S.G. Sangle, A.G.P. for Respondent No.1.
        Smt. Preeti Diggikar Advocate for Respondent 
        No.2.      





                          ...


                   CORAM:   R.M.BORDE AND
                            A.I.S. CHEEMA, JJ.

DATE : 20TH NOVEMBER, 2013

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JUDGMENT [PER A.I.S. CHEEMA, J.] :

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the parties.

2. This Petition by Petitioner is an effort

to hop to the category of Open- physically

handicapped, after having been appointed in the

category of Other Backward Classes (O.B.C.) -

handicapped and terminated after a couple of years

as the O.B.C. certificate got invalidated.

3. According to the Petitioner, he has been

terminated by order dated 10th May 2010, by Zilla

Parishad, Hingoli as his caste claim was

invalidated by caste scrutiny committee, ignoring

the fact that he was selected and appointed for

the post reserved for physically disabled person.

He had been selected as Shikshan Sevak and

appointed on 14th September 2006. He had the

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requisite qualification for the post of Assistant

Teacher in Primary School and he belongs to

"Shimpi" caste which is included in Other Backward

Class (O.B.C.) and is also physically disabled

having 45% orthopedic disability. He belongs to

O.B.C. category and is entitled for the

reservation of O.B.C. category. Respondent No.2

Zilla Parishad published advertisement in

Newspaper dated 4th February 2006 to fill up posts

of Assistant Teachers in Primary Schools run by

Zilla Parishad, Hingoli. Apart from constitutional

reservation, social reservations were also

provided in the said advertisement and it was

specifically stated that 3% reservation of the

total posts would be reserved for physically

disabled persons. Petitioner submitted two

applications. In one application, he claimed

reservation of O.B.C. category as well as

physically disabled person and in another

application he claimed reservation for physically

disabled person (Open). As per the law laid down

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by the Hon'ble the Supreme Court in the matter of

Indra Sawhney vs. Union of India, reported in 1992

Supp. (3) S.C.C. 217, social reservations run

across the constitutional reservations. The

constitutional reservations of scheduled caste,

scheduled tribe, O.B.C. etc. are vertical

reservations, whereas reservations for physically

handicapped persons, ex-serviceman etc. are

horizontal reservations.

4. As per the Petitioner, separate 3%

reservation was provided for physically disabled

persons and therefore there was no question of

providing reservation of physically disabled

persons against different categories of

constitutional reservation. He claims that he was

selected to the post reserved for physically

disabled persons and was placed against the post

reserved for physically disabled person - O.B.C.

category. According to him, there was no such type

of reservation.

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5. According to the Petitioner, as he was

accommodated against seat reserved for O.B.C.

category, his caste claim was referred to caste

scrutiny committee, Latur. The same got

invalidated as he is not resident of Maharashtra

State since prior to 1967. Being aggrieved and

dissatisfied by the invalidation of his caste

claim, he approached this Court in Writ Petition

No.4589 of 2010. Vide order dated 25th May 2010,

this Court directed that no adverse action may be

taken against the Petitioner solely on the ground

that his caste claim has been invalidated.

However, back dated order, dated 10th May 2010, of

terminating the services of Petitioner was served

on him on 14th June 2010. According to him, he was

selected as physically disabled person and so even

if the caste claim has been invalidated, he could

not have been terminated.

. According to Petitioner, in all 175 posts

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were advertised. As per 3% reservation, 5 posts

ought to have been provided to physically disabled

persons. Although 175 posts were advertised, 187

candidates were selected and appointed to the post

of Shikshan Sevak and as such 6 posts ought to

have been reserved for physically disabled

persons. However, Respondent No.2 selected only 5

physically disabled persons, as mentioned in the

Petition. The Petitioner sought amendment in Writ

Petition No.4589 of 2010, to incorporate challenge

to the termination order dated 10th May 2010.

However, vide orders dated 29th November 2011, he

was granted liberty to restrict the challenge in

that Petition limited to the extent of order of

caste scrutiny committee and was permitted to

resort to appropriate legal remedies in respect of

termination of his service. Hence, this Petition.

6. Respondent No.2 has filed affidavit in

reply. It is the case of this Respondent that as

per the advertisement dated 2nd February 2006,

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only one post was reserved for physically disabled

person belonging to O.B.C. category. The

Petitioner had applied from O.B.C. category and

after interview he was appointed as Assistant

Teacher against the post reserved for O.B.C. -

physically disabled person. It is clearly

mentioned in the appointment order that in case

the caste claim of the Petitioner is invalidated

by the caste verification committee, his services

would be terminated. The caste claim of the

Petitioner to be O.B.C. (Shimpi) was sent for

verification to the caste/tribe scrutiny

committee, Aurangabad Division, Latur and after

due verification the claim was invalidated vide

orders dated 31st March 2010/ 19th April 2010.

Therefore, as per the terms of the appointment

letter, his services came to be terminated vide

orders dated 10th May 2010. Before the orders

dated 25th May 2010 were passed in Writ Petition

No.4589 of 2010 (that no adverse action be taken

solely on the ground of invalidation of the caste

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claim) this Respondent had already terminated the

services of the Petitioner. This Respondent denies

that back dated order was issued. According to the

Respondent, Petitioner is not entitle to reliefs

as claimed.

7. We have heard learned counsel for both

the sides and perused the record.

8. Learned counsel for the Petitioner argued

in favour of the Petition as mentioned above and

has submitted that all the posts reserved for

physically disabled persons will have to be filled

in, on the basis of merit amongst the candidates

from that category and after the selection, they

have to be placed in the respective categories as

per the constitutional reservation. Petitioner was

4th in the physically disabled persons and was

adjusted against seat reserved for O.B.C. category

as he had claimed benefit of reservation of O.B.C.

category also. Had he not been O.B.C., he would

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have been accommodated on unreserved open seat

irrespective of his position in the general merit

list. According to the counsel, these aspects were

ignored by the Respondent Zilla Parishad and the

Petitioner came to be terminated, which is bad in

law.

9. Against this, the learned counsel for the

Respondents submitted that the Petitioner is

wrongly interpreting the Judgment of the Hon'ble

Supreme Court in the matter of Indra Sawhney

(supra). The documents from the selection process

are referred to claim that the advertisement

clearly mentions in column No.8 that provision has

been made of reservation for the reserved classes

and while making such reservation, provision has

been kept for women, disabled persons etc. as per

the system of reservation. The advertisement gave

percentages for ex-servicemen, women, handicapped

persons etc. and the number of seats reserved for

N.T.(B), N.T.(C), O.B.C., Open etc. It was

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mentioned that 175 posts have to be filled up,

however, there is likelihood of change in the

number of posts and the reservation. In the

process, against O.B.C. from disabled persons, one

post was shown. This can be seen from the copy of

Advertisement kept with the documents of the

selection process tendered on record by

Respondent. It is argued that the selection

process got completed and appointments made and

after change in situation, grievance is being

made.

10. From record we find that the Petitioner

responded to the advertisement and went through

the whole process and had no problem when he got

selected against a seat reserved for O.B.C. -

disabled person. He accepted the appointment order

dated 14th September 2006 and has worked till 10th

May 2010. His caste claim got invalidated in

March/April, 2010 and so he came to be terminated.

After having reaped the benefits and after the

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selection process has been completed and

appointments have been made accordingly, only

because Petitioner's caste claim got invalidated,

now the Petitioner is trying to turn around and

criticize the selection process and is making

effort to jump to the category of Open -

handicapped.

11.

According to us, this cannot be allowed.

The selection process came to an end in the year

2006 and after candidates have been appointed in

consequence of the selection process, the

Petitioner cannot be permitted to shift from one

category to another. In any case, he has not made

party any of the candidates selected, down the

line who would get affected, in case he is

permitted to shift from one category to another.

12. In the case of Public Service Commission,

Uttaranchal vs. Mamta Bisht and others, reported

in A.I.R. 2010 Supreme Court 2613, the Hon'ble

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Supreme Court observed in Para 7 as under:-

"7. In case the respondent No.1 wanted her selection against the reserved category vacancy, the last selected candidate in

that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by

Constitution Bench of this Court in Udit Narain Singh Malpaharia v. Additional

member, Board of Revenue, Bihar and Anr., AIR 1963 SC 786, wherein the Court has

explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and

has not been impleaded as a party has a

right to ignore the said order as it has been passed in violation of the principles of natural justice."

. According to us, at such belated stage,

neither such shifting is permissible nor the same

could be allowed in the absence of party likely to

be affected.

13. The Petitioner has relied on the case of

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Indra Sawhney vs. Union of India, reported in 1992

Supp. (3) S.C.C. 217. In that matter, principle of

horizontal reservation was explained thus, in Para

812:

"812...... all reservations are not of the same nature. There are two types of reservations, 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 the quota 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

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providing for these horizontal

reservations, the percentage of reservations in favour of backward class

of citizens remains - and should remain - the same."

14. A special provision for women made under

Article 15(3), in respect of employment, is a

special reservation as contrasted from the social

reservation under Article 16(4). The method of

implementing special reservation, which is a

horizontal reservation, cutting across vertical

reservations, was explained by the Hon'ble Supreme

Court in "Anil Kumar Gupta vs. State of U.P. [1995

(5) SCC 173]" thus :

"... The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas,

i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an

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overall horizontal reservation - no

further question arises. But if it is not so satisfied, the requisite number of

special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the

corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation,

then the process of verification and adjustment/accommodation as stated above

should be applied separately to each of the vertical reservations. In such a case,

the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.)" [Emphasis supplied]

15. The above Judgments were referred by the

Hon'ble Supreme Court in the case of Rajesh Kumar

Daria vs. Rajasthan Public Service Commission and

others, A.I.R. 2007 Supreme Court 3127. In the

matter of Rajesh Kumar Daria, Rajasthan Public

Service Commission had issued advertisement for

selection of candidates for the posts of Munsiff-

Magistrate and although rules provided for

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horizontal reservation of 20% for women category-

wise, the number of candidates to be selected

under general category (open) competition were 59,

out of which 11 were earmarked for women. When the

first 59 from amongst 261 candidates were taken up

and listed as per merit, it contained 11 women

candidates which was equal to the quota of general

category - women.

. In this regard, observations of the

Hon'ble Supreme Court as found in Para 7-8 are

material, which read as under:

"7-8. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special

reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation

is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-

reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against

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the quota reserved for the respective

backward class. Therefore, if the number of SC candidates, who by their own merit, get

selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has

been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition

category."........... "But the aforesaid principle applicable to vertical (social)

reservations will not apply to horizontal (special) reservations. Where a special

reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in

order of merit and then find out the number

of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the

number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite

number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation

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differs from vertical (social) reservation.

Thus women selected on merit within the vertical reservation quota will be counted

against the horizontal reservation for women. Let us illustrate by an example :

If 19 posts are reserved for SCs (of which

the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the

successful eligible candidates. If such list of 19 candidates contains four SC

women candidates, then there is no need to disturb the list by including any further

SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit,

will have to be included in the list and

corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women

SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is

no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]" Emphasis supplied.

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. In Para 9 the Hon'ble Supreme Court after

referring to the facts of that matter, observed as

under:

"9..... There was thus no need for any further selection of woman candidates under the special reservation for women. But what

RPSC did was to take only the first 48 candidates in the order of merit (which

contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a

result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven women

candidates selected on their own merit (candidates at Sl.Nos.2, 3, 4, 5, 9, 19,

21, 25, 31, 35 & 41 of the Selection List) and another eleven (candidates at Sl.Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80

of the Selection List) included under reservation quota for 'General Category- Women'. This is clearly impermissible. The process of selections made by RPSC amounts

to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation."

Emphasis supplied.

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16. It is quite clear from above observations

of the Hon'ble Supreme Court that it found the

action of the Public Service Commission as

amounting to treating the 20% reservation for

woman as vertical reservation instead of being

horizontal reservation within the vertical

reservation. Keeping this in view, the arguments

that Petitioner was selected as a disabled person

cannot be accepted as the same would amount to

saying that there was 3% reservation as vertical

reservation. It is also clear from portion

emphasized that the special reservation is within

the social reservation.

17. Learned counsel for the Petitioner relied

on the case of Mahesh Gupta and others vs.

Yashwant Kumar Ahirwar and others, A.I.R. 2007

Supreme Court, 3136. Referring to observations in

Para 12 of that Judgment, it has been argued that

a disabled is a disabled and question of making

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any further reservation on the basis of caste,

creed or religion ordinarily may not arise. The

facts of that matter were different and that was a

case where a special drive was taken up to fill up

posts for handicapped persons and while doing so,

the Commissioner of Chambal Division, committed

error while issuing the advertisement. The context

in that matter was different. The Constitution

Bench Judgment in the case of Indra Sawhney and

Full Bench Judgment in the case of Rajesh Kumar

Daria (supra) clearly show how the horizontal and

vertical reservation is to be dealt with.

18. The advertisement issued by the

Respondent No.2 showed different reservations for

175 posts in the categories of scheduled tribes,

O.B.C., Open etc. and mentioned that there would

be reservations within the categories to the

extent indicated. The Petitioner fails to show, as

it could not be, that there was special and

independent reservation as handicapped person. He

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had applied to be accommodated against O.B.C. -

physically handicapped, and also as a candidate

from Open - handicapped. After having taken

advantage in the earlier category, now he cannot

be permitted to shift category.

19. There is no substance in the Writ

Petition. The Writ Petition is dismissed. Rule is

discharged. There shall be no order as to the

costs.

[A.I.S. CHEEMA,J.] [R.M. BORDE,J.]

asb/NOV13