Bombay High Court
Asha Ramnath Gholap vs President, District Selection ... on 30 March, 2016
Bench: S.S. Shinde
1 WP No. 3929/2015
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3929 OF 2015
Asha D/o Ramnath Gholap
Age: 27 Yrs., occu. Education &
Household, R/o C-D-1-15-1,
Dr.Hedgewar Nagar, CIDCO,
N-4, Nasik. - PETITIONER
VERSUS
1) The President,
District Selection Committee/
Collector, Beed, Dist. Beed.
2) The Member,
District Selection Committee/
Chief Executive Officer,
Zilla Parishad, Beed.
District Beed.
3) The Member-Secretary,
District Selection Committee/
Deputy Chief Executive
Officer(General)
Zilla Parishad, Beed.
District Beed.
4) Kranti Ganesh Khanapurkar
Age: 24 Yrs., occu. Nil.
::: Uploaded on - 31/03/2016 ::: Downloaded on - 01/04/2016 00:01:30 :::
2 WP No. 3929/2015
5) Sulbha Raosaheb Fukate,
Age: 25 Yrs., occ. Nil.
Both C/o District Health Officer,
Zilla Parishad, Beed. - RESPONDENTS
*****
Mr.Sachin S.Deshmukh Advocate for Petitioner;
Mr.S.B.Yawalkar,AGP for Respondent No.1;
Mr.A.D.Aghav, Advocate for Respondent Nos.2 & 3;
Mr.P.N.Sonpethkar, Advocate for Respondent No. 4;
Mr.D.J.Choudhari, Advocate for Respondent No.5.
-----
CORAM : S.S.SHINDE &
P.R.BORA,JJ.
DATE OF RESERVING THE JUDGMENT : 5
th
February,2016
DATE OF PRONOUNCING THE JUDGMENT 30
th
March, 2016
JUDGMENT (PER:-P.R.BORA,J.)
1) Heard. Rule. Rule made returnable
forthwith by consent of the parties.
2) Petitioner has filed the present petition,
seeking quashment of the select list prepared by
Respondents Nos.1 to 3 pertaining to the appointment
to the posts of Pharmacists on the establishment of
Zilla Parishad, Beed so far as it relates to
inclusion of the names of Respondent Nos.4 and 5 in
the said list. The petitioner has also sought the
direction against respondents Nos.1 to 3 to issue
appointment to her on the post of pharmacist on the
establishment of Zilla Parishad, Beed. The select
list so prepared by Respondent Nos.1 to 3 and the
inclusion of the names of Respondent Nos.4 and 5
therein has been challenged by the petitioner on the
ground that it is in violation of the constitutional
provisions and against the reservation policy.
3)
The contents of the petition reveal that the
petitioner had applied for the post of Pharmacist to
be filled in by Zilla Parishad, Beed in pursuance of
the advertisement published in that regard on 22nd
August, 2014. Total 23 posts of pharmacists were
advertised along with the other posts to be filled in
by Zilla Parishad, Beed. According to the
advertisement so published, out of 23 posts of
pharmacists, 10 posts were to be filled in from the
candidates belonging to open category; whereas
remaining 13 were reserved for the candidates
belonging to reserved categories. The petitioner
belongs to scheduled caste and possesses the
qualification of Diploma in Pharmacy (D.Pharm.) as
well as Bachelor in Pharmacy (B.Pharm.) and thus was
holding the qualification as prescribed in the said
advertisement for the post of pharmacist.
4) In the examination conducted by the
respondents for the post of pharmacist, the
petitioner secured 120 marks out of 200. As averred
in the petition, the petitioner stands at serial No.2
in the merit list from amongst the female candidates.
It is the contention of the petitioner that though
she belongs to scheduled caste category and had also
applied from the reserved category, considering the
marks secured by her in the written examination, she
must have been selected from the female(open)
category. However, in the final select list prepared
by the District Selection Committee in its meeting
held on 17.3.2015, name of the petitioner was not
included as the selected candidate. The list so
prepared and published contains the name of, - i)
Gadade Pallavi Bharat; ii) Khanapurkar Kranti Ganesh
(Respondent No.4); and iii) Fukate Sulabha Raosaheb
(respondent No.5). It is the contention of the
petitioner that Respondent Nos. 4 & 5 have received
less marks than the petitioner and as such, both
were not liable to be selected. The petitioner has,
therefore, approached this court by invoking the writ
jurisdiction of this court under Article 226 of the
Constitution of India, seeking quashment of the
select list to the extent it contains the names of
Respondent Nos.4 and 5 against the seats reserved for
the candidates belonging to open female category. As
stated earlier, the petitioner has also sought
directions against the respondents for issuance of
the appointment in her favour on the post of
Pharmacist at Zilla Parishad Beed.
5) Respondent No.4 has filed her affidavit in
reply and has thereby opposed the submissions raised
in the petition. Shri Subhash Narayan Bhavale, the
Administrative officer, Zilla Parishad, Beed has
filed the reply on behalf of Respondent Nos. 2 and 3,
contending therein that since the posts were to be
filled in from the Female open category and since the
petitioner has applied from the reserved category,
she has not been considered for the said appointment.
It is also contended that the petitioner cannot claim
the benefit of Government Circular dated 13.8.2014,
as her case does not fall within the parameters laid
down in the said Circular.
6) On 10th April, 2014, this court has granted
ad interim relief in terms of prayer clause (B-2)
thereby restraining the respondents-authorities from
issuing appointment orders in favour of Respondent
Nos. 4 and 5 as against open Female category.
7) Heard the learned counsel for the respective
parties and perused the documents filed on record by
them. Majority facts are undisputed. Total 23 posts
of the pharmacists were to be filled in for which an
advertisement was issued on 22.8.2014. Out of the 23
posts, as stated earlier, 13 posts were reserved for
different backward class candidates categories and 10
posts were to be filled in from the open category.
For the 10 posts to be filled in from open category,
the horizontal reservations were provided thus : for
Women - 3; Ex-Servicemen - 2; Part-time employees -
1; Sportsman - 1; Project affected person - 1; and
General - 2. .
8) Inviting our attention to the Provisional
Merit List and the select list prepared for the posts
of pharmacists, Shri Deshmukh, learned Counsel
appearing for the petitioner, submitted that in so
far as candidate, viz. Gadade Pallalvi Bharat is
concerned, since she has secured highest marks in
open (female) category, the petitioner does not have
any objection for her selection; however, the other
two candidates, viz. Khanapurkar Kranti Ganesh and
Sulabha Raosaheb Phukate (i.e. Respondent Nos.4 and
5) are concerned, since both have secured less marks
than the petitioner, could not have been selected.
The learned Counsel asserted that in the provisional
merit list, since petitioner stands second highest in
female category candidates, she must have been
selected from Open (Female)category. Shri Deshmukh,
has relied upon the judgment of the Hon'ble Apex
court in the case of Rajesh Kumar Daria Vs. Rajasthan
Public Service Commission and Ors. - (2007) 8 SCC
785, in order to support the contentions raised by
him in the petition. Inviting our attention to the
observations recorded by the Hon'ble Apex Court in
para 9 of the aforesaid judgment, Shri Deshmukh urged
that though the petitioner belongs to scheduled
caste, since she has secured more number of marks,
her candidature ought to have been considered on the
basis of the said merit from the open category. As
against it, Shri Yawalkar, learned AGP, referring to
the observations of the Hon'ble Supreme Court in para
9 itself, sought to canvass that the said
observations are not of any help to the petitioner's
case. Learned AGP submitted that the selection of
the scheduled caste meritorious candidate from the
open category is permissible in so far as vertical
reservations are concerned and cannot be applied to
horizontal (special) reservations.
9)
On hearing the learned Counsel appearing for
the respective parties and on perusal of the
documents filed on record, following question arises
for our determination, -
"Whether the petitioner, who has
applied for the post of pharmacist
from the reserved category, more
particularly scheduled caste, can
claim her selection on one of the
three(3) posts horizontally reserved
for open Female category on the basis
that amongst the female candidates,
she has secured second highest
marks. ?"
10) It is not in dispute that vide advertisement
published on 22nd August, 2014 by District Selection
Committee, Beed, total 23 posts of pharmacists were
advertised along with certain other posts. In so far
as said 23 posts of pharmacists are concerned, the
reservations provided were to the following effect, -
Scheduled Caste : 1
Scheduled Tribe : 2 (out of which
1 for female
1 for General)
Vimukta Jatis (A) : 1
Nomadic Tribe
(N.T.(C) : 1
Other Backward
Class(OBC)
ig : 5 (out of which
2 for female
1 for Ex-Servicemen
1 for Part-time
1 for General)
Economically special
Backward Class
(ESBC) : 2 (out of which
1 for female)
1 for General)
SBC(A) : 1
Open : 10 (out of which, -
3 for female
2 for ex-servicemen
1 for part-time
1 for sportsman
1 for Project affected
2 for General)
11) The Petitioner has placed on record the
provisional merit list published by Respondent/Zilla
Parishad in regard to the post of pharmacist (Aushad
Nirman Adhikari). In the said list, name of Gadade
Pallavi Bharat appears at Sr.No.27 and she is shown
to have secured 126 marks. Name of the present
petitioner is at serial No. 37 and she is shown to
have secured 122 marks. Respondent No.4 - Kranti
Ganesh Khanapurkar is at serial No. 51 and has
secured 120 marks; whereas name of Respondent no.5 -
Phukate Sulabha Raosaheb is at serial No. 86 and she
has secured 110 marks. There is no dispute that in
the female candidates, whose names are included in
the provisional merit list, petitioner stands on 2 nd
position in order of merit.
12) As is revealing from the contentions raised
and the arguments advanced on behalf of Respondent
Nos. 1 to 3, they have not included the name of the
petitioner in the final select list pertaining to the
open(female) category published by them for the
reason that the petitioner does not belong to open
category and had not applied from the said category.
It is their further contention that the reservation
prescribed under open category for women being
horizontal reservation, the candidates from the said
category only are entitled to be considered against
the posts reserved for such category. It has also
been argued that the principle applicable to vertical
(social) reservations will not apply to
horizontal(special) reservations.
13) To support the argument advanced as above,
the respondents have placed reliance on two Supreme
Court judgments, one in the case of Rajesh Kumar
Daria Vs. Rajastan Public Service Commission - AIR
2007 SC 3127; and other in the case of Anil Kumar
Gupta and Ors. Vs. State of U.P. And Ors. - (1995) 5
SCC 173. The respondents are also relying upon the
Government Circular dated 13th August, 2014.
14) Our attention was invited to the
observations recorded by the Hon'ble Apex court in
para 9 of the judgment in the case of Rajesh Kumar
Daria (cited supra), which are thus, -
" The second relates to the difference
between the nature of vertical
reservation and horizontal
reservation. 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 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 that 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. [Vide - Indra
Sawhney (Supra), R. K. Sabharwal vs.
State of Punjab (1995 (2) SCC 745),
Union of India vs. Virpal Singh
Chauvan - (1995 (6) SCC 684 and Ritesh
R. Sah vs. Dr. Y. L. Yamul - (1996 (3)
SCC 253)]. 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 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.] "
15) The observations in para 18 of the Judgment
in the case of Anil Kumar Gupta (cited supra) which
have been relied upon by the respondents are thus,
"18. Now, coming to the correctness
of the procedure prescribed by the
revised notification for filling up
the seats, it was wrong to direct the
fifteen percent special reservation
seats to be filled up first and then
take up the O.C. (merit) quota
(followed by filling of O.B.C., S.C.
and S.T. quotas). The proper and
correct course is to first fill up the
O.C. 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 over-all 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 compartmentalised 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.) Because the revised
notification provided for a different
method of filling the seats, it has
contributed partly to the unfortunate
situation where the entire special
reservation quota has been allocated
and adjusted almost exclusively
against the O.C. Quota."
16) We also deem it appropriate to reproduce
herein below the relevant part of the Government
circular dated 13th August, 2014, from which the
respondents are deriving support to buttress their
contentions, which reads thus, -
"¼v½ izFke VIik %& [kqY;k izoXkkZrqu lekarj vkj{k.kkph ins Hkjrkuk]
xq.koRrsP;k fud"kkuqlkj [kqY;k izoxkZrhy mesnokjkaph fuoM ;knh djkoh
¼;k fBdk.kh [kqY;k izoxkZr xq.koRrsP;k vk/kkjkoj ekxkloxhZ;
mesnokjkapkgh lekos'k gksbZy½- ;k ;knhr lekarj vkj{k.kkuqlkj vko';d
[kqY;k izoxkZP;k mesnokjkaph la[;k i;kZIr vlsy rj dks.krkgh iz'u
mn~Hko.kkj ukgh vkf.k R;kuqlkj ins Hkjkohr- tj ;k ;knhr lekarj
vkj{k.kkuqlkj vko';d [kqY;k izoxkZP;k mesnokjkaph la[;k i;kZIr ulsy
rj [kqY;k izoXkkZlkBh jk[kho lekarj vkj{k.kkph ins Hkj.;kdfjrk
lnj ;knhrhy vko';d i;kZIr la[;sbrds 'ksoVps mesnokj oxGqu ik=
mesnokjkaiSdh dsoG [kqY;k izoxkZpsp vko';d i;kZIr la[;sbrds mesnokj
?ks.ks vko';d vkgs-"
17) The controversy arisen in the present
petition revolves around the interpretation of the
words "General and/or Open category". The
respondents have interpreted the said words to mean
`the candidates belonging to only such castes, which
are not prescribed to be socially backward'. In
other words, if any candidate belongs to any such
caste or tribe which falls in backward class and has
been prescribed as scheduled caste, scheduled tribe
or Nomadic Tribe and Vimukta Jati, cannot be included
in open category and consequently cannot compete and
claim the selection on any post from the said
category.
18) According to us, the construction of the
word "open category" so suggested by the respondents
is against the constitutional mandate as well as
policy of reservation in employment.
19) The import of the word "General category",
which in other words can also be termed as "open
category" is explained by the Hon'ble Apex court in
the case of Bihari Lal Rada Vs. Anil Jain (Tinu) and
Ors. - (2009) 4 SCC 1, thus, -
"There is no separate category like
general category. The expression
belonging to the general category
wherever employed means the seats or
offices earmarked for persons belonging
to all categories irrespective of their
caste, class or community or tribe. The
unreserved seats euphemistically
described as general category seats are
open seats available for all candidates
who are otherwise qualified to contest
to that office.
The Hon'ble Apex court has further observed that,
The word `General' is derived from
Latin word genus.
"... It relates to the whole kind,
class, or order. Pertaining to or
designating the genus or class, as
distinguished from that which
characterizes the species or
individual; universal, not
particularized, as opposed to special;
principal or central, as opposed to
local; open or available to all, as
opposed to select; obtaining commonly,
or recognized universally, as opposed
to particular; universal or unbounded,
as opposed to limited; comprehending
the whole or directed to the whole, as
distinguished from anything applying to
or designed for a portion only.
Extensive or common to many."
20) "Whether the Municipal Councilor elected
from the reserved ward can contest the election to
the office of president of the said Municipal Council
if by virtue of roaster such office is notified to be
filled in by a member belonging to the general
category" was the issue for determination before the
Hon'ble Apex court in the case of Bihari Lal Rada
(cited supra). Said Bihari Lal Rada, who was
belonging to reserved class, was elected on the post
of president of Municipal Council, Hissar, though at
the relevant time, according to the roaster, the post
of president of the said Municipal Council was
notified to be filled in by a member belonging to the
general category. Election of Bihari Lal Rada was
challenged in a writ petition seeking writ of
certiorari to quash the proceedings where under
appellant was declared to have been duly elected as
president of Hissar Municipal Council. The learned
Single Judge of High Court of Haryana dismissed the
writ petition and upheld the election of Bihari Lal
Rada as president of the Municipal Council. In an
appeal, preferred against the decision of learned
Single Judge the Division Bench set aside the
judgment of learned Single Judge and quash the
election of said Bihari Lal Rada. The matter was then
taken to the Hon'ble Apex court by Bihari Lal Rada
and the Hon'ble Apex court set aside the order passed
by the Division Bench and upheld the decision of
learned Single Judge thereby holding the election of
said Bihari Lal Rada as president of the said
Municipal Council. Some of the observations, which
were made by the Hon'ble Apex court in the aforesaid
judgment, we have reproduced herein above. In the
instant petition, the petitioner, who belongs to
reserved class and more particularly, scheduled
caste, is claiming her selection for the post
notified to be filled in by a female member belonging
to general category. We find that having regard to
the facts involved in the present petition, the same
principle as was applied by the Hon'ble Apex court in
the case of Bihari Lal Rada, will apply to the
present case.
21) In Biharilal Rada's case, one another
judgment of the Hon'ble Supreme Court in the case of
V.V.Giri Vs. D.Suri Dora - AIR 1959 SC 1318 is
referred to. the facts in that case were, - In a
double member Parliamentary Constituency one seat was
reserved for the Scheduled Tribes and the other was
general. Four persons filed their nominations for the
election, G1 and G2 for the general seat and S1 and
S2 for the reserved seat. In the light of the number
of votes received by the candidates at the polls and
in accordance with provisions of Section 54 (4) of
the Representation of the People Act, 1951, S1 was
declared elected to the reserved seat and S2, who had
received the largest number of votes out of the
remaining candidates, was elected to the general
seat. G1 filed an election petition for a declaration
that the election of S2 was void. One of the
contentions was that upon a proper interpretation of
Section 54 (4) a candidate who had filed his
nomination for the reserved seat could not be
declared elected to the general seat.
. The aforesaid matter was heard by the
Constitution bench of the Hon'ble Supreme court,
which, after elaborate consideration, held, as under,
-
"In our opinion, the true position is
that a member of a scheduled caste or
tribe does not forego his right to seek
election to the general seat merely
because he avails himself of the
additional concession of the reserved
seat by making the prescribed
declaration for that purpose. The claim
of eligibility for the reserved seat
does not exclude the claim for the
general seat; it is an additional
claim; and both the claims have to be
decided on the basis that there is one
election from the double-member
constituency."
The further observations made by the Hon'ble Supreme
Court In the said judgment do have material bearing
on the controversy raised in the present petition,
which are thus, -
"In this connection we may refer by
way of analogy to the provisions made
in some educational institutions and
universities whereby in addition to
the prizes and scholarships awarded on
general competition amongst all the
candidates, some prizes and
scholarships are reserved for
candidates belonging to backward
communities. In such cases, though the
backward candidates may try for the
reserved prizes and scholarships, they
are not precluded from claiming the
general prizes and scholarships by
competition with the rest of the
candidates."
22) In R.K.Sabharwal Vs. State of Punjab -
(1995) 2 SCC 745, a Constitution Bench of the Hon'ble
Apex Court has held as under, -
"When a percentage of reservation is
fixed in respect of a particular cadre
and the roster indicates the reserve
points, it has to be taken that the
posts shown at the reserve points are
to be filled from amongst the members
of reserve categories and the
candidates belonging to the general
category are not entitled to be
considered for the reserved posts. On
the other hand the reserve category
candidates can compete for the non-
reserve posts and in the event of
their appointment to the said posts
their number cannot be added and taken
into consideration for working out the
percentage of reservation." (Emphasis
supplied)
23) In Indra Sawhni Vs. Union of India 1992
Supp 3 SCC 217, the nine Judges Bench of the Hon'ble
Supreme Court has ruled as under, -
"In this connection it is well to
remember that the reservations under
Article 16(4) do not operate like a
communal reservation. It may well
happen that some members belonging to,
say, Scheduled Castes get selected in
the open competition field on the basis
of their own merits; they will not be
counted against the quota reserved for
Scheduled Castes; they will be treated
as open competition candidates."
24) From the law laid down by the Hon'ble Apex
court in the aforesaid judgments, it is quite clear
that the reservation ensures that at least minimum
number of persons belonging to such classes would get
elected in the public bodies or secure post in public
employment. However, reservation so made in their
favour does not mean that they are not entitled to
compete for unreserved posts. The reservation does
not limit the number of candidates from reserved
category to be filled in in the public employment.
They are eligible to compete from the unreserved
seats/posts and get selected resulting in increase of
their number in the employment. There can never be
any Constitutional or legal objection if more members
from the weaker sections get selected to the posts
on their own merit from the seats meant for
unreserved category or open category.
25) The apprehension which was expressed by the
learned Counsel appearing for the respondents that if
the candidates belonging to reserved class are
permitted to compete even for the posts notified for
general category, the persons belonging to open
category may lose their chances forever or for a long
time to get the employment, is totally untenable and
unsustainable. As has been observed by the Hon'ble
Apex court in the aforesaid judgments, the whole idea
is to see that minimum number of seats as provided
for are filled in by vulnerable sections of the
Society. However, there can never be any
constitutional or legal objection if more members
from those weaker sections of the society get
selected to the posts on their own merit from the
seats meant for the open category.
26) It was sought to be canvassed on behalf of the
respondents that the principle which is applicable to
vertical (social) reservations which permit the
candidates belonging to backward class to compete for
unreserved posts and if they are appointed to the
non-reserved post on their own merit, their number is
not to be counted against the quota reserved for the
respective backward class, will not apply to
horizontal(special) reservations. It was further
canvassed that for the ten posts notified to be
filled in by the candidates belonging to open
category in vertical reservation, three posts out of
the said ten posts, are reserved to be filled in by
women candidates and thus it was the
horizontal(special) reservation provided for the
women candidates and as such, the said posts were
liable to be filled in only by the women candidates
belonging to open category.
27) We find the argument advanced as above to
be fallacious. Once it is held that general category
or open category takes in its sweep all candidates
belonging to all categories irrespective of their
caste, class or community or tribe, it is irrelevant
whether the reservation provided is vertical or
horizontal. There cannot be two interpretations of
the words `open category'; one applicable for
reservation.
vertical reservation and other for horizontal
Reservation prescribed may be
`vertical' or `horizontal' if it relates to open
category, the candidate belonging to backward class
cannot be precluded from competing for the said posts
on their own merit with rest of the candidates.
28) We have noticed that the law laid down by
the Hon'ble Apex court in the case of Rajeshkumar
Daria and Anil Kumar Gupta (cited supra) is being
mis-interpreted by the Administrative authorities. In
Rajesh Kumar Daria's case, the Hon'ble Apex court has
discussed about horizontal (special) reservation
provided for women within the social reservation for
scheduled caste and by giving an illustration, a
conclusion is recorded that the women selected on
merits within the vertical reservation quota will be
counted against horizontal reservation for women. In
Anil Kumar Gupta's case, the Hon'ble Apex court has
ruled that 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.
29)
Thus, in both the aforesaid judgments, the
aspect dealt within by the Hon'ble Apex court was
pertaining to filling up the horizontal quota `under
vertical(social) reservation'. In the instant case,
the question for determination is how to fill up the
horizontal quota for women not prescribed within the
social reservation but under open category. We have
elaborately discussed herein before that there is no
separate category like `open category' and the
expression `open category' includes therein persons
belonging to all categories irrespective of their
caste, class or community or tribe. It is thus
evident that when three posts were notified to be
filled in by the female candidates belonging to open
category, it was open for the petitioner to compete
for the said post irrespective of the fact that she
belongs to the reserved category and when she had
secured meritorious position amongst the female
candidates and had secured 2nd highest marks, her
selection could not have been denied by the
respondents on the ground that she belongs to
scheduled caste and does not fall in the open
category. As per the observations of the Hon'ble
Apex court in the case of V.V.Giri (cited supra),
which we have reproduced herein above, though the
petitioner had applied from the scheduled castes
category that does not mean that she had given up her
right to be selected to the unreserved post or to the
post for open category. The claim of eligibility for
the reserved post does not exclude the claim for
general seat. It is an additional claim.
30) In Devender Kumar Vs. State of Haryana and
Anr. - 1997 LAB I.C.106, the Division Bench of the
Punjab and Haryana High Court has dealt with somewhat
similar controversy as is involved in the present
petition. In the said petition though the petitioner
had stood higher in merit, the persons junior to him
in the merit list in general category were given
letters of appointment on the pretext that since the
petitioner had applied under the category of
dependent of freedom fighter, his case would not be
considered against a seat for general category. The
Division Bench of the Punjab & Haryana High court
allowed the petition filed by the said petitioner by
making following observations,
"6. Stand taken by the respondents
that since petitioner had applied in
the reserved category of dependent of
Freedom Fighter his case could not be
considered in the general category in
spite of his merit cannot be
sustained. Petitioner has competed
along with others and is placed in
select list at No.32 in order of merit
that is within the number of seats
advertised for the general category.
It has been held in several judicial
pronouncements that a reserved
category candidate can compete for
non-reserved post and in the event of
this appointment to the said post his
number cannot be added and taken into
consideration for working out
percentage of reservation. It would
be arbitrary to decline the relief to
the petitioner who had come within
merit for appointment of the general
category only on the ground that he
had also claimed his entitlement to
the post in the reserved category of
freedom fighter. In this particular
case, it would be seen that the
Freedom Fighter seat was available
only if suitable candidates in the
E.S.M. category were not available.
There was no fixed number of seats for
the dependents of Freedom fighters.
The same was dependent on the
contingency that appointment would be
given to them only if suitable
candidates from E.S.M. category are
not available. Under such
circumstances also, he could not be
denied the opportunity to compete
against the post meant for general
category candidate. Denial of
appointment to the petitioner and the
preference given to the persons lower
in merit than the petitioner in the
general category under these
circumstances cannot be upheld. The
action of the respondents is arbitrary
and discriminatory thus violative of
Articles 14 and 16 of the Constitution
of India."
31) For the reasons recorded by us, as above,
and more particularly having regard to the law laid
down by the Hon'ble Apex court as well as Punjab and
Haryana High court in the judgments, to which we have
referred in the foregoing paras, we hold the
petitioner eligible to be selected for one of the
three posts reserved for female candidates under the
horizontal reservation notified for open category
candidates since she has secured 2nd highest marks
amongst the female candidates. Consequently, her
name has to be included in the select list prepared
by Respondent Nos.2 and 3 in the meeting held on
17.3.2015 and we direct accordingly . It is obvious
that while including the name of the petitioner in
the list of selected candidates, at least one name
will have to be deleted from the said select list.
The respondents 1 to 3 shall take decision
considering the order of merit as to name of which
candidate is to be deleted from the said select list.
32) Rule is accordingly made absolute in the
aforesaid terms. There shall be no order as to costs.
Sd/- sd/-
(P.R.BORA) (S.S.SHINDE)
JUDGE JUDGE
bdv/fldr.5.2.16(2)
