Chattisgarh High Court
Kamla Kurre vs State Of Chhattisgarh And Ors on 10 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 1535 of 2014
Order reserved on : 16/11/2022
Order Pronounced on: 10/02/2023
Kamla Kurre, W/o Shri Krishna Kumar Kurre, Aged About 27 Years,
R/o Village Faguram, Post Teram, Tahsil- Gharghoda, P.S.-
Gharghoda, District- Raigarh, Civil & Revenue District- Raigarh,
Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Panchayat and Rural
Development Department, Mahanadi Bhawan, Mantralaya, New
Raipur, Disrict- Raipur, Chhattisgarh.
2. Additional Commissioner, Bilaspur Division, Bilaspur, District-
Bilaspur, Chhattisgarh.
3. Collector Raigarh, District- Raigarh, Chhattisgarh.
4. Chief Executive Officer, Janpad Panchayat, Gharghoda, District-
Raigarh, Chhattisgarh.
5. Laxminarayan Lahre, S/o Shri Tulsiram Lahre, Aged About 38 Years,
R/o Ward No. 4, Gharghoda, Tahsil- Gharghoda, P.S. Gharghoda,
District- Raigarh, Chhattisgarh.
---- Respondents
For Petitioner : Mr. Awadh Tripathi, Advocate
For State/Respondents No. 1 to 3 : Mr. Shrikant Kaushik, P.L.
For Respondent No.4 : Mr. Manish Nigam, Advocate
For Respondent No.5 : Mr. Aniket Verma, adv. on behalf
of Mr. Anuroop Panda, Advocate
Hon'ble Smt. Justice Rajani Dubey, Judge
CAV Order
1. This petition is filed under Article 226 of the Constitution of India for
quashing the order dated 13.03.2014 (Annexure P/1) and restoring
the order of Chief Executive Officer, Janpad Panchayat, Gharghoda
dated 30.06.2009.
2. Brief facts of the case are that respondent No.4/Chief Executive
Officer, Janpad Panchayat, Gharghoda has issued an advertisement
for the post of Shiksha Karmi Grade-III on 19.06.2009. Petitioner
was selected on the aforesaid post and appointment oder was
issued in favour of the petitioner on 30.06.2009. On 20.08.2009,
Respondent No.5-Laxminarayan Lahre filed an appeal (Annexure
P/5) before Respondent No.3/ Collector, Raigarh and by order dated
25.11.2013, respondent No.3 set aside the appointment of the
petitioner. Against this order, petitioner filed the revision along with
stay application before the Commissioner, Bilaspur Division,
Bilaspur. The Commissioner, Bilaspur vide order dated 05.12.2013
stayed the effect and operation of order dated 25.11.2013 but
ultimately, the learned Additional Commissioner/respondent No.2
vide order dated 13.03.2014 dismissed the revision filed by the
petitioner. Hence, this petition by the petitioner for the following
reliefs:-
(i) This Hon'ble Court may kindly be pleased to quash the
impugned order dated 13.03.2014 (Annexure P/1) passed
by the respondent No.2 and reserved the order of the Chief
Executive Officer, Janpad, Panchayat, Ghargoda dated
30.06.2009.
(ii) Any other relief which this Hon'ble Court deems fit and
proper may also kindly be granted to the petitioner in the
interest of justice along with costs of the petition.
3. Learned counsel for the petitioner submits that the learned Collector
as well as learned Additional Commissioner wrongly appreciated the
reservation rules. Since the petitioner was one of the woman
candidates securing highest marks, her name was considered on
merit along with others for reserved seat of Scheduled Castes
category. As Tosh Kumari secured highest marks, she has been
considered on merit in the Scheduled Caste category. Therefore,
according to the reservation policy, name of the petitioner has been
considered against reserved seat of Scheduled Caste (woman)
category and the respondents authorities have not properly
understood the reservation policy and passed the impugned order
without considering the horizontal reservation. The impugned order
is not sustainable in the eye of law because the same has been
passed without looking into the relevant provisions of law.
4. The Chief Executive Officer has categorically filed reply as well as
report in which he informed as to why horizontal reservation has
been given in the case concerned but the same has not been
considered and respondent no. 2 has passed the order impugned in
arbitrary manner and directed to set aside the appointment order of
successive candidate of woman category for which post has been
reserved. Learned Additional Commissioner as well as learned
Collector totally overlooked the reservation policy and the horizontal
reservation and totally overlooked the meritorious candidates whose
status have rightly been considered against the reserved seat of
Shiksha Karmi Grade-III for Arts subject and accordingly the name of
the petitioner has rightly been considered for reserved seats of
Scheduled Caste (woman) category. In the order of appointment
there is no irregularity, but the learned Collector and the Additional
Commissioner acted contrary to the settled principle of law and
passed the impugned order and same cannot be sustainable in the
eye of law.
5. Learned counsel for respondents no. 1 to 3 submits that the
respondents passed the impugned order while exercising their
quasi-judicial powers conferred under the Chhattisgarh Panchayat
Raj Adhiniyam, 1993 and they have passed well reasoned orders
after providing due opportunity of hearing to the parties as provided
under the law and as such no interference is warranted in the
impugned order
6. Learned counsel for respondents no. 4 & 5 submits that a bare
perusal of the advertisement dated 19.06.2009 revealed that in Arts
category total 3 posts were advertised for Scheduled Caste
candidates out of which one post was reserved for woman. The
selection list was prepared by the respondents wherein one Tosh
Kumari appeared at S.No.1 with total 47.74 marks, second rank was
secured by one Pitamber Kumar Ratre with 47.24 marks, the
respondent no. 5 was placed at S.No. 3 with 45.73 marks and
petitioner who obtained 40.20 marks was placed at S.No. 6 in order
of merit. As per the horizontal reservation the quota of woman
reservation would have been treated to be filled up after selection of
Tosh Kumari at S.No. 1 in the merit list, however, applying the
reservation in erroneous manner, the petitioner was selected and
appointed on the post of Shiksha Karmi Grade-III instead of
respondent no. 5.
7. The order of appointment of petitioner on the post of Shiksha Karmi
Grade-III was assailed by respondent no. 5 before the Collector. The
Collector vide order dated 25.11.2013 in appeal set aside the order
of appointment of the petitioner and directed the respondent no. 4 to
consider the candidature of the respondent no. 5 in accordance with
law. The order dated 25.11.2013 passed by the Collector was
assailed by the petitioner in revision before the Additional
Commissioner but the Commissioner affirmed the order passed by
the Collector.
8. Both the orders are well reasoned orders based on material facts on
record and the same have been passed after affording opportunity of
hearing to the parties. Therefore, the same do not call for any
interference in exercise of extraordinary jurisdiction under Article 226
of the Constitution of India. Therefore, the petition is devoid of merits
and deserves to be dismissed. Reliance has been placed on the
judgment rendered by Hon'ble Supreme Court in the matter of
Rajesh Kumar Daria Vs. Rajasthan Public Service Commission
and Others reported in (2007) 8 SCC 785.
9. Heard counsel for the parties and perused the material available on
record.
10. The number of posts published under the advertisement dated
19.08.2009 (Annexure P/3) by the Respondent authority is as
under:-
dz- ladk; ¼v½ ¼c½ ¼l½ ¼n½ ¼b½
@fo"k; dqy in Js.khokj dkye ¼v½ esa n'kkZ;s dkye ¼v½ esa n'kkZ;s dkye ¼v½ esa n'kkZ;s dkye ¼v½ esa n'kkZ;s
lewg x;s dqy fjDr inksa esa x;s dqy fjDr inksa x;s dqy fjDr inksa esa x;s dqy fjDr inksa esa
dk uke ls efgykvksa ds fy;s esa ls fodykax oxZ ls HkwriwoZ lSfudksa ds ls eqDr oxZ ds fy;s
vkjf{kr inksa dh ds fy;s vkjf{kr fy;s vkjf{kr inksa dh vkjf{kr inksa dh la[;k
la[;k inksa dh la[;k la[;k
UR SC ST OBC UR SC ST OBC UR SC ST OBC UR SC ST OBC UR SC ST OBC
1 dyk 6 3 11 3 2 1 4 1 - - 1 - 1 - 1 - 3 2 5 2
2 foKku 7 3 14 4 2 1 5 1 - - 1 - 1 - 1 - 4 2 7 3
;ksx 13 6 25 7 4 2 9 2 0 0 2 0 2 0 2 0 7 4 12 5
11. Petitioner was appointed vide order dated 30.06.2009 (Annexure
P/4) against reserved category of Scheduled caste (woman).
12. The difference between the nature of vertical reservation and
horizontal reservation has been explained by the Hon'ble Supreme
Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public
Service Commission and others, (2007) 8 SCC 785, wherein in
para 9 it has been held as under:-
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 - Indira Sawhney 1, R. K.
Sabharwal vs. State of Punjab3, Union of India vs. Virpal Singh
Chauhan4and Ritesh R. Sah vs. Dr. Y. L. Yamul 5). 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
1 1992 Supp (3) SCC 217 : 1992 SCC (L & S) Supp 1 : (1992) 22 ATC 385
3 (1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481
4 (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813
5 (1996) 3 SCC 253
group of "Scheduled Caste 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.
13. The principles of law laid down in the aforesaid judgment in the
matter of Rajesh Kumar Daria (supra) have been subsequently
reiterated by the Hon'ble Supreme Court in the case of Public
Service Commission, Uttaranchal Vs. Mamta Bisht and others,
2010 (12) SSC 204.
14. As per Annexure P/2, competent authority has held in para 7 as
under:-
7. mHk;i{k ds rdZ ,oa eq[; dk;Zikyu vf/kdkjh] tuin iapk;r] ?kj?kksM+k ds
izfrosnu dk voyksdu fd;k x;kA vihykFkhZ dk rdZ gS fd f'k{kkdehZ oxZ&3 dh
fu;qfDr gsrq vuqlwfpr tkfr ds 3 in Fks ftlesa jksLVj ds vuqlkj 1 in efgyk vkSj
2 in eqDr FksA efgyk in ds ,ot esa rks "k dqekjh dh fu;qfDr fd;k tkuk Fkk vkSj 2
in eqDr ds cnys esa firkEcj dqekj jk+=s ,oa vihykFkhZ y{ehukjk;.k ygjs dh
fu;qfDr fd;k tkuk FkkA O;kolkf;d ijh{kk e.My ds vuqlkj dze'k% ¼1½ rks"k
dqekjh&47-74] ¼2½ firkEcj dqekj jk=s&47-24] ¼3½ y{ehukjk;.k ygjs&45-73] rFkk ¼4½
deyk dqjsZ&40-20 vad izkIr fd;sA eq[; dk;Zikyu vf/kdkjh] tuin iapk;r] ?kj?
kksM+k us vius izfrosnu ds fcUnq dzekad&4 esa mYys[k fd;k gS fd vkj{k.k jksLVj ds
vuqlkj vuqlwfpr tkfr ds 3 inksa esa ls 2 in eqDr ,oa 1 in efgyk oxZ ds fy,
vkjf{kr FkkA efgyk vkj{k.k leLrjh; ,oa izoxZokj gksrk gS ftlds fglkc ls 3 inksa
esa ls de ls de 1 efgyk dh fu;qfDr fd;k tkuk vko';d gksrk gSA
tuin iapk;r ?kj?kksM+k ds f'k{kkdehZ oxZ&3 dyk ladk; ds 3 vuqlwfpr
tkfr ds in fjDr Fks] ftlesa ,d efgyk ,oa nks in eqDr ls fu;qfDr fd;k tkuk
pkfg,] ftlesa efgyk vkj{k.k ds vuqlkj ,d in efgyk vH;FkhZ ds fy, Fkk ftlesa
rks"k dqekjh dh fu;qfDr gks xbZ blfy, deyk dqjsZ dh fu;qfDr fu;ekuqlkj ugha gS
vr,o mldh fu;qfDr fujLr dh tkrh gSA eq[; dk;Zikyu vf/kdkjh] tuin
iapk;r] ?kj?kksM+k dks funZsf'kr fd;k tkrk gS fd f'k{kkdehZ HkrhZ ,oa lsok fu;e ds
rgr vihykFkhZ ik= gksus ij fu;ekuqlkj 'kklu ls ekxZn'kZu izkIr dj vfxze
dk;Zokgh djsA
15. The selection list prepared by the answering respondent is as
under:-
S.No. Name of the candidates Marks Rank
16. As per rules, the quota of woman reservation would have been
treated to be filled up after selection of Tosh Kumari at serial No.1 in
the merit list, therefore selection of respondent No.5 in open
category is based on merit list and according to reservation rules. As
per appointment order, petitioner's appointment as reserved
category woman is not according to reservation rules, hence, the
order dated 25.11.2013 (Annexure P/2) of the Collector and the
order dated 13.03.2014 (Annexure P/1) of Additional Commissioner
are according to law and based on reservation rules as held by
Hon'ble Supreme Court in the matter of Rajesh Kumar Daria Vs.
Rajasthan Public Service Commission and others (Supra).
17. Looking to the facts and circumstances of the case, the impugned
order being in accordance with law needs no interference by this
Court. Therefore, this petition has no merit and is accordingly
dismissed.
Sd/-
(Rajani Dubey)
Judge
Ruchi
