Delhi High Court
Shailendra Pathak vs Union Of India And Ors. on 16 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.7169/2011
% 16th January, 2017
SHAILENDRA PATHAK ..... Petitioner
Through: Mr. Rajan Mani, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Dev P. Bhardwaj, CGSC for
respondent No.1.
Mr. Mohinder J.S. Rupal, Advocate
for respondent No.2.
Mr. M.A. Niyazi, Advocate for
respondent Nos.3 and 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution of
India, the petitioner/Sh. Shailendra Pathak seeks appointment to the post of
Assistant Registrar with the respondent no.2/University of Delhi. Petitioner
seeks appointment to the post of Assistant Registrar with the respondent
no.2/University of Delhi under the Persons with Disabilities (PWD) quota.
Also, it is not that the petitioner seeks appointment to the post under the
PWD quota on the ground that he has been wrongly not selected, because
petitioner admits that the respondent no.5/Sh. Pradeep Kumar who has been
appointed in the PWD quota has received more marks i.e 276 marks
whereas the petitioner has obtained 268 marks, but what the petitioner
pleads and argues is that the respondent no.5/Sh. Pradeep Kumar though he
only applied for the post of Assistant Registrar in the PWD category, and
was selected in the PWD category, respondent no.5/Sh. Pradeep Kumar was
also otherwise an OBC person, and though respondent no.5/Sh. Pradeep
Kumar did not apply as an OBC candidate, yet respondent no.5/Sh. Pradeep
Kumar should be selected to the post of Assistant Registrar not in the PWD
category but in the OBC category inasmuch as the person selected in the
OBC category namely respondent no.4/Sh. Prashant Nagar received more
marks than the General category candidate who got selected and
accordingly once respondent no.4/Sh. Prashant Nagar is appointed as a
General category candidate, the OBC post to which respondent no.4/Sh.
Prashant Nagar is appointed will get vacated for the appointment of
respondent no.5/Sh. Pradeep Kumar who has been selected in the PWD
category, and therefore, since a post gets vacant in the PWD category on
vacation of the same by respondent no.5/Sh. Pradeep Kumar, the petitioner
hence should be appointed to the post of PWD category of Assistant
Registrar with the respondent no.2/University of Delhi. I would like to
simplify the aforesaid issue raised by the petitioner by simply stating that
the petitioner states that respondent no.4/Sh. Prashant Nagar who applied
for and is selected in the OBC category should be taken as selected in the
General category because respondent no.4/Sh. Prashant Nagar has received
more marks than the selected candidate in the General category, and that
simultaneously what then should happen is that respondent no.5/Sh. Pradeep
Kumar who is the selected candidate in the PWD category (and though he
only had applied as PWD category and not as OBC category) is also an
OBC person, respondent no.5/Sh. Pradeep Kumar should be shifted to the
post of Assistant Registrar to the OBC category which respondent no.4/Sh.
Prashant Nagar will vacate on being appointed as a General category
candidate, and therefore, petitioner is entitled to the post of Assistant
Registrar in the PWD category because the post of PWD category which has
been given to respondent no.5/Sh. Pradeep Kumar will fall vacant.
2. Learned counsel for the petitioner in support of his arguments
states that since there has been a common selection process i.e common
written test and interview on the same date taking place of all the three posts
of Assistant Registrar with the respondent no.2/University of Delhi in the
three categories of PWD, OBC and General, hence, merger and automatic
shifting from the post of OBC to General and PWD to OBC must take place.
I may clarify that two advertisements were issued with the first
advertisement which was issued on 30.9.2009 was only for one post of
Assistant Registrar under the PWD category and the second advertisement
dated 13.4.2010 was for two posts of Assistant Registrar under the OBC
category and the General category i.e there was a separate advertisement for
the two posts of Assistant Registrar dated 13.4.2010 for General and OBC
category and another earlier advertisement dated 30.9.2009 for the post of
Assistant Registrar in PWD category, but the written test took place together
of all the three posts as also interview process for all the three posts of the
Assistant Registrars was conducted on the same date.
3. Learned counsel for the petitioner in support of his arguments
places reliance upon the observations of the Supreme Court made in para 4
of the judgment in the case of R.K. Sabharwal and Others Vs. State of
Punjab and Others (1995) 2 SCC 745 along with Rule 17 of the Gazette
notification dated 23.5.2015 of the Ministry of Personnel, and it is
accordingly argued that there has to be automatic shifting i.e thus the
appointment of the selected candidate in the post of OBC category should
take place in the General category and there is no option in respondent no.4
/Sh. Prashant Nagar deciding/having an option whether or not to continue
his appointment in the OBC category to which he had applied and was
selected, and that respondent no.4/Sh. Prashant Nagar must automatically
shift for appointment to the General category as he has received more marks
than the candidate selected in the General category. Learned counsel for the
petitioner in support of the argument with respect to the result of all three
posts of Assistant Registrars having to be common and lateral shifting to
take place between such posts once there is a common admission test and
common selection process, relies upon the Division Bench judgment of this
Court in the case of Amit Singhal & Ors. Vs. The Chairman, DSSSB &
Anr. in W.P.(C) No.3603/2010 decided on 26.5.2010.
4. In my opinion, the only issue to be decided in this case is that
can there be an automatic shifting of a candidate who has applied for a post
in OBC category to be selected in the General category post on the ground
that the candidate who has applied in the OBC category post has received
higher marks so as to be appointed and selected in the General category post
and also that there should be automatic shifting of the PWD candidate (who
incidentally is an OBC person) to the OBC category although the PWD
candidate has not applied in the OBC category and is also not interested to
shift to the OBC category post. In other words, can a candidate who has
made a conscious decision to apply for the post of Assistant Registrar as an
OBC candidate for the OBC category post, can be asked to automatically
shift to the General category post with the concomitant issue as to whether a
person (i.e respondent no.5/Sh. Pradeep Kumar) who has not applied in the
OBC category should be asked to shift to the OBC category simply because
he incidentally is an OBC person although he has not applied under the
OBC category and has only applied and is selected as a PWD candidate.
Putting it yet in other words, can a candidate who has specifically applied
under the reserved category of OBC be asked to shift to an unreserved
category and whether a person who has applied specifically under one
reserved category of PWD should be asked in spite of his opposition to
automatically shift to another reserved category post of an OBC category.
5. Let me at this stage reproduce para 4 of the judgment in the
case of R.K. Sabharwal (supra) and this para 4 reads as under:-
"4. 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 reserve 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. Article 16(4)
of the Constitution of India permits the State Government to make any
provision for the reservation of appointments or posts in favour of any
Backward Class of citizens which, in the opinion of the State is not adequately
represented in the Services under the State. It is, therefore, incumbent on the
State Government to reach a conclusion that the Backward Class/Classes for
which the reservation is made is not adequately represented in the State
Services. While doing so the State Government may take the total population
of a particular Backward Class and its representation in the State Services.
When the State Government after doing the necessary exercise makes the
reservation and provides the extent of percentage of posts to be reserved for
the said Backward Class then the percentage has to be followed strictly. The
prescribed percentage cannot be varied or charged simply because some
of the members of the Backward Class have already been
appointed/promoted against the general seats. As mentioned above the
roster point which is reserved for a Backward Class has to be filled by way of
appointment/promotion of the member of the said class. No general category
candidate can be appointed against a slot in the roster which is reserved for the
Backward Class. The fact that considerable number of members of a Backward
Class have been appointed/promoted against general seats in the State Services
may be a relevant factor for the State Government to review the question of
continuing reservation for the said class but so long as the instructions/rules
providing certain percentage of reservations for the Backward Classes are
operative the same have to be followed. Despite any number of
appointees/promotees belonging to the Backward Classes against the general
category posts the given percentage has to be provided in addition. We,
therefore, see no force in the first contention raised by the learned Counsel and
reject the same." (emphasis added)
6. No doubt, Supreme Court in the case of R.K. Sabharwal
(supra) has held that a person who is a reserved category candidate can
compete and seek appointment to a General category post, and that there
cannot be the position that a General category candidate can seek
appointment in the reserved category post, but, the Supreme Court in this
very para has specified that reservation percentage in the post has to be
strictly followed and the prescribed percentage cannot be varied and
changed. These observations have been rightly made by the Supreme Court
because if the persons under the reserved categories such as OBC, SC/ST or
PWD candidates are asked to shift to unreserved posts in General category,
the roster system which specifies different vacancies for General posts,
SC/ST posts, OBC posts, PWD posts etc will be in a totally confused state
of affairs each time thereafter so far as promotion to the higher posts is
concerned and as will be elaborated hereinafter. No doubt, the Gazette
notification dated 23.5.2015 talks of automatic appointment of the PWD
candidates and for increase of the posts of PWD candidates, if the person
who applied in the PWD posts, gets selected in the General post, however,
this very Rule 17 yet further specifies of recommendations having been
made and amendments to be carried out in the Rules in due course i.e Rules
will have to be amended and notified of how the roster system will change
whether in the same number of posts as existing or by increase of the
sanctioned posts, and thereafter apportioning them under the unreserved and
the reserved category posts by their respective number.
7. I would also like to note for completion of narration that the
Gazette notification dated 23.5.2015 of the Ministry of Personnel will
mutatis mutandis apply to appointments in the respondent no.2/University
of Delhi by virtue of the notification dated 26.9.2013, and copy of which
has been placed on record of this Court on behalf of the petitioner during the
arguments. I would also, at this stage, reproduce Rule 17 of the Gazette
notification of the Ministry of Personnel dated 23.5.2015 which has been
referred to above, and which Rule 17 reads as under:-
"17. The minimum qualifying marks as specified under rules 15 and 16
may be relaxable at the discretion of the Commission in favour of physically
handicapped candidates in order to fill up the vacancies reserved for them:
Provided that where a physically handicapped candidate obtains the
minimum qualifying marks in his own merit in the requisite number for
General, or the Scheduled Caste or the Scheduled Tribe or other Backward
Class category candidates, then, the extra physically handicapped candidates,
i.e., more than the number of vacancies reserved for them shall be
recommended by the Commission on the relaxed standards and consequential
amendments in the rules will be notified in due course."
8. Therefore, the observations of the Supreme Court in the case of
R.K. Sabharwal (supra) and Rule 17 of the Gazette notification dated
23.5.2015 have to be read in an appropriate manner whereby such
observations in the case of R.K. Sabharwal (supra) when read with Rule 17
of the Gazette notification dated 23.5.2015 will apply on either additional
posts being created for the appointments in a particular post, i.e more posts
of Assistant Registrar in this case, otherwise the percentage which has to be
followed strictly among reserved and unreserved candidates including inter-
se reserved candidates will automatically stand changed and varied, and
which is not permissible as per the observations of the Supreme Court itself
in para 4 of the judgment in the case of R.K. Sabharwal (supra). I therefore
cannot agree to the argument urged on behalf of the petitioner of automatic
increase of posts of PWD candidates merely because the OBC candidate in
this case obtained marks by which such OBC candidate could be selected in
the General category post, and this will be all the more so because the PWD
category candidate namely the respondent no.5/Sh. Pradeep Kumar opposes
his shifting from the PWD category to the OBC category inasmuch as
respondent no.5/Sh. Pradeep Kumar not only never applied for being
selected only as OBC category candidate, and that even today counsel for
the respondent no.5/Sh. Pradeep Kumar states that respondent no.5/Sh.
Pradeep Kumar does not want to shift from the PWD category post to an
OBC category post and which will affect his future career graph which
ought to be only in the PWD category. Related with this aspect is also that
though respondent no.4/Sh. Prashant Nagar has not appeared before this
Court, this Court will also have to consider as to why at all respondent
no.4/Sh. Prashant Nagar should be forced to automatically shift from the
OBC category post, to which only he had applied for, to a General category
post and which cannot be done for the reasons given hereinafter.
9. On the aspect of the respondent nos. 4 and 5 being not shifted
against their wishes to a General category post and an OBC category post
respectively, firstly it is seen that in para 4 of the judgment in the case of
R.K. Sabharwal (supra) the expression used is "may compete" i.e a person
has to take a conscious decision for being appointed in a General category
post by competing for such post. The issue is that even assuming there is
automatic increase of posts as argued on behalf of the petitioner with
reference to Rule 17 of the Gazette notification dated 23.5.2015, can a
reserved category candidate be forced to become a General category
candidate although he has not applied for being appointed in the General
category. This aspect will have relevance because I have put it not only to
the counsel for the petitioner but also to the counsels for the respondents
that what would be the consequence of a reserved category/OBC category
candidate being shifted to a General category candidate so far his further
and future career graph of promotions to higher posts in the employer
organization is concerned. In other words, suppose there are about four to
five promotion posts after the post of Assistant Registrar, whether
respondent no.4/Sh. Prashant Nagar who applied as an OBC category
candidate and has to be shifted to a General category candidate as per the
arguments of the petitioner, then so far as future promotions to the higher
posts are concerned, will respondent no.4/Sh. Prashant Nagar be considered
as a General category candidate or as a reserved category OBC candidate
for the higher posts. Learned counsel for the petitioner in this regard argues
that this Court is not called upon to decide this question, however, I cannot
agree, inasmuch as, even the arguments urged on behalf of the petitioner,
and as conceded on behalf of the petitioner would be that an OBC category
candidate when applied as an OBC category candidate is selected as an
OBC category candidate but is to be automatically shifted to a General
category post on account of having higher marks than the General category
candidate, can and will such person be entitled during his service career at
his choice/option for appointment to the higher posts both either for General
posts or for reserved category posts? If this argument of the petitioner is
accepted it would mean enlarging the pool of candidates for General
category posts by adding those persons who though got appointed as a
General category candidate, but since is a reserved category person, such
candidate at his option for each of the higher posts and for each of the
promotion processes for the higher posts can as per his convenience decide
whether to apply for promotion as a General category candidate for the
General category post or as an OBC candidate for the reserved category
post. This will have an unhealthy effect of reducing the chances of the
General category candidates for the higher/promotion General category
posts as to the pool of General category posts, pool of the OBC category
posts will be added. In fact, if what is argued on behalf of the petitioner is
accepted, then, possibly in many cases the legally set boundary of 50% of
reserved posts may also be crossed on various occasions because counsel for
the petitioner argues that the logic with respect to interchangeability in
appointments would also be extended even for the promotion posts. In my
opinion, not only this argument will fall foul of the law with respect to
entitlement of the candidate only to continue in his selected category during
his career with an employer but the same will also result in uncertain
fluidity of the roster point system because there will be complete uncertainty
at all points of time with respect to not only number of posts but also with
respect to the persons who would be eligible for being appointed to different
posts in an organization, be the reserved category posts or unreserved
category posts. To put it in other words, and to finally state briefly what is
discussed above, is that an OBC category candidate who is automatically
appointed to a General category post cannot at his option during his entire
service career for promotion to different higher/promotion posts in different
promotion processes of different years can at his option keep on jumping for
being either in the pool of a General category candidate for appointment to a
General category post or to be a reserved category candidate for
appointment to a reserved category post. No such judgment to this affect is
pointed out to this Court which results in the aforesaid legal position that an
OBC category or a reserved category candidate although he is appointed in
a General category post but since he had applied for and so appointed
originally against a reserved category post but was shifted to a General
category post on account of having higher marks than the General category
candidate in his future service and appointment to higher/promotion General
category posts can keep on asking for appointment by promotions to the
higher posts both as in the General category pool as also in the reserved
category pool simply because the candidate was originally selected to the
reserved category post.
10. Learned counsel for the respondents have also rightly argued
that respondent no.5/Sh. Pradeep Kumar who has been selected in the PWD
category cannot be forced to take the OBC category post inasmuch as
reservation of posts inter-se the promotion posts above the Assistant
Registrar would be different in number for the OBC posts and the PWD
posts and which is to be taken with the aspect that the respondent no.5/Sh.
Pradeep Kumar feels he has a better chance of promotion and career
prospects as a PWD candidate and not as an OBC category candidate, and
as so argued before this Court. In fact, this logic will also apply on account
of reasons given above that respondent no.4/Sh. Prashant Nagar cannot be
forced to abandon his reserved category post and for his career graph for
higher promotions only in the limited reserved category posts which would
be lesser in number than the unreserved posts. Respondent no.4/Sh. Prashant
Nagar as also stated above cannot exercise the option as a General category
candidate so far as future promotions are concerned i.e respondent no.4/Sh.
Prashant Nagar cannot at his option either to be in General pool of
candidates for being appointed and then at his sweet will and option seek
appointment in reserved category for being appointed to the higher reserved
category posts in OBC category.
11. In view of the above, in my opinion, the petitioner cannot be
granted the reliefs because the petitioner cannot claim that respondent
no.4/Sh. Prashant Nagar who has applied and is selected as an OBC
category candidate should be automatically shifted to a General category
post with all its consequences even in the future and more particularly that
respondent no.5/Sh. Pradeep Kumar who has appeared and contested this
petition, and who has been selected in the PWD category post cannot
against his will be asked to be shifted from PWD category post of Assistant
Registrar to which he has applied and is selected to the OBC category post
of Assistant Registrar and to which action there is vehement opposition on
behalf of the respondent no.5/Sh. Pradeep Kumar. Once there cannot be
shifting of respondent no.5/Sh. Pradeep Kumar to the post of Assistant
Registrar under OBC category of respondent no.4/Sh. Prashant Nagar and
also that there cannot be shifting of respondent no.4/Sh. Prashant Nagar, an
OBC category candidate, automatically to the General category, hence there
would therefore not arise any vacancy in the PWD category post of
Assistant Registrar with the respondent no.2/University of Delhi in terms of
the subject selection process, and once there is no vacancy in the said PWD
category post, petitioner thus cannot be granted appointment to the PWD
category post, taking note of the fact that petitioner in fact was unsuccessful
otherwise in the selection process for appointment to the post of Assistant
Registrar in the PWD category and to which post respondent no.5/Sh.
Pradeep Kumar was selected on account of receiving higher marks than the
petitioner.
12. For the sake of completion of narration I state that right at the
commencement of the arguments, counsel for the petitioner gave up the
relief/prayer (a) in the writ petition.
13. Writ petition is accordingly dismissed, leaving the parties to
bear their own costs.
JANUARY 16, 2017 VALMIKI J. MEHTA, J
Ne
