Rajasthan State Industrial ... vs Preeti Bala Dhanetwal D/O ...
2023 Latest Caselaw 5031 Raj/2

[2023:RJ-JP:24133-DB]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 D.B. Special Appeal Writ No. 155/2023
Rajasthan      State      Industrial       Development              And    Investment
Corporation Limited (RIICO), Udyog Bhawan, Tilak Marg, C-
Scheme, Jaipur, Through Managing Director.
                                                                          ----Appellant
                                       Versus
1.       Preeti Bala Dhanetwal D/o Tarachand Verma, R/o 14 Moti
         Colony, Govind Nagar (East), Amer Road, Jaipur. Post No.
         8, Junior Assistant- Roll No. 81519
2.       Nisha    Mourya         D/o      Avinash        Mourya,          R/o   Shivam
         Apartment, Ashok Nagar, Gali No. 14, Narshala Road,
         Ajmer (Raj.)
3.       Neetu Jasnani D/o Laxman Das Jasnani, R/o 1/758,
         Malviya Nagar, Jaipur.
                                                                     ----Respondents

For Appellant(s) : Ms. Sheetal Mirdha, AAG with Mr. Prateek Singh For Respondent(s) : Mr. Vigyan Shah with Ms. Pragya Singh

HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN

Judgment 18/09/2023

1. The present intra court appeal is directed against the

impugned order dated 12.09.2022 in S.B. Civil Writ Petition No.

10399/2014 wherein the petition praying for relief of appointment

of respondent/writ-petitioner on the post of Junior Assistant under

the OBC female category was allowed by the learned Single Judge.

FACTS/BACKGROUND

2. The brief facts, which are undisputed, are as follows:

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2.1. The respondent/writ-petitioner applied for post of

Junior Assistant under the OBC female category in pursuance to

advertisement issued by the appellant Rajasthan State Industrial

Development and Investment Corporation Limited (for short

"RIICO") in February 2014. The diversion of the 21 available posts

was as under:

a.) For open/general category: 9 posts out of which 2 posts

were reserved for women candidates;

b.) For SC category: 6 posts out of which 1 post was further

reserved for SC women candidate;

c.)    For ST category: 2 posts;

d.)    For OBC category: 4 posts out of which 1 post was further

reserved for OBC women candidate.

2.2. The respondent/writ-petitioner was placed at Serial No.

26 of the overall final merit list and at Serial No. 3 in the OBC

female category. The case of the respondent-writ petitioner before

the learned Single Judge was that the women candidate who were

placed higher than her in the OBC female category, namely Ms.

Vipul Kumawat and Ms. Nisha Maurya, on account of their overall

higher merit, ought to have been placed in the general female

category and consequently, by virtue of migration of these above

two candidates, the respondent/writ petitioner ought to have been

appointed under the OBC female category.

2.3. Accepting the contentions of the respondent/writ-

petitioner and by relying upon Hon'ble Supreme Court judgments

of Sadhana Singh Dangi vs. Pinki Asati (Neutral Citation:

2021/INSC/906) reported in (2022) 12 SCC 401 and BSNL

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vs. Sandeep Choudhary (Neutral Citation: 2022/INSC/489)

reported in (2022) 11 SCC 401, the learned Single Judge

allowed the writ petition and held as under:

"This writ petition filed by the petitioner deserves to be allowed, for the reasons, firstly, admittedly, the petitioner had 3rd rank in the merit list of OBC female category, however, Vipul Kumawat as well as Nisha Mourya, these two female category candidates were higher in merit qua the general female category candidates as they had 1st and 2d rank respectively in the merit of general female category, therefore, they must be considered for appointment against the seats of General Female Category, secondly, in view of the judgment passed by the Hon'ble Supreme Court in the matter of Sadhana Singh Dangi & Ors and Bharat Sanchar Nigam Limited & Anr. (both supra), the respondent-RIICO ought to have considered the case of Vipul Kumawat as well as Nisha Mourya against the general female category candidate, as two seats were reserved for general female category candidates and therefore, the petitioner having 1st rank in the OBC female category, after adjusting these two candidates, against the general female candidates has a rightful claim of being appointed on the post in question against the OBC female category, lastly, in view of above discussion, I am inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India in this matter. Hence, the present writ petition stands allowed."

SUBMISSIONS OF APPELLANT

3. Learned counsel for the appellant-RIICO submits that the

entire reservation procedure adopted by them is in accordance

with the guidelines laid by the Hon'ble Supreme Court in the case

of Rajesh Kumar Daria vs. Rajasthan Public Service

Commission & Ors. reported in (2007) 8 SCC 785, wherein the

distinction between vertical reservation and horizontal reservation

was clarified and it was held that principles applicable to vertical

(social) reservation will not apply to horizontal (special)

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reservations and where a special reservation for women is

provided within the social reservation for SC/ST/OBC, the proper

procedure is first to fill up the quota for SC/ST/OBC in order of

merit and then find out the number of candidates among them

who belong to the special reservation group of "SC/ST/OBC

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 SC/ST/OBC

women shall have to be taken by deleting the corresponding

number of candidates from the bottom of the list relating to

SC/ST/OBC. 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.

4. Learned counsel for the appellant-RIICO contends that

as per the case of Rajesh Kumar Dariya (supra), which is

followed for filling up of women's reservation, i.e., horizontal

reservation, the first course is to fill up the Open Category on the

basis of merit and then fill up each of the Social Reservation

Quotas, i.e., SC/ST/OBC and thereafter, if the quota fixed for

horizontal quota is satisfied, no further question arises. In the

present case, the open category quota was filled up on basis of

merits and thereafter the SC/ST/OBC quota were filled up. Ms.

Vipul Kumawat got placed in the OBC Category List. As a third

step, upon examining the open category seats, it was found that

on the basis of merit list, two female candidates, namely Ms.

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Nisha Maurya and Ms. Neetu Jashnani were found eligible to be

placed in the Open Category candidates. In the OBC Category, as

Ms. Vipul Kumawat had already occupied one post, the

(horizontal) reservation of one female candidate stood satisfied

and therefore the decision of the learned Single Judge to allow the

respondent/writ-petitioner to be appointed in OBC female

category, being contrary to the Apex Court judgment of Rajesh

Kumar Dariya (supra), needs to be set aside.

5. Learned counsel for the appellant-RIICO further

contends that the reliance placed by the learned Single Judge on

the Apex Court judgments of Sadhana Singh Dangi (supra) and

Sandeep Choudhary (supra) is also erroneous as the issue

involved in those cases was of appointment of meritorious

SC/ST/OBC, who scored more than the general category

candidates, under the general category as against the reserved

category. Whereas, the present case pertains to horizontal

reservation as neither the respondent/writ-petitioner nor Ms. Vipul

Kumawat and Ms. Nisha Maurya were meritorious enough to

occupy the open category posts.

6. Learned counsel for the appellant-RIICO has also

highlighted that in the open category, out of total 9 posts, two

posts were reserved for women candidates. When the first merit

list was prepared for open category, which was prepared strictly

based on merit position, it was found that adequate representation

from women candidates have not been fulfilled as no women

candidates fell in the list prepared on the basis of merit. Thus, in

order to fulfill the special reservation quota specified for women in

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open category, two male candidates were removed from the

bottom of the merit list and the merit list was re-examined. The

name of Ms. Vipul Kumawat appeared first in the women category

merit list, however, as Ms. Vipul Kumawat had already occupied a

place in the vertical merit list of OBC category on her own merit,

the next two meritorious candidates, namely Ms. Nisha Maurya

and Ms. Neetu Jashnani were subsequently selected in the general

women category as they were both higher in merit than the

respondent/writ-petitioner.

SUBMISSIONS OF RESPONDENT/WRIT-PETITIONER

7. Per contra, learned counsel for the respondent-writ

petitioner contends that the appellant had misinterpreted the

judgment of Rajesh Kumar Daria (supra) as the correct

approach would be to first draw a select list of open/general

category and give effect to horizontal reservation in the open

category at the first instance. As per the learned counsel for the

respondent/writ-petitioner, the horizontal reservation in open

category has to be given effect purely on the basis of merit and

the category of women, to whom benefit of horizontal reservation

is extended at this instant, does not matter. In this regard,

learned counsel for the respondent/writ-petitioner has placed

strong reliance on para 23.11 and para 43 of Apex Court judgment

of Saurav Yadav vs. State of Uttar Pradesh (Neutral

Citation: 2020/INSC/714) reported in (2021) 4 SCC 542,

wherein the Apex Court has laid out the method of implementing

horizontal reservation for women, after noting the judgment of

Rajesh Kumar Daria (supra).

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8. It is contended that, in the present case, if the

reservations were correctly applied, then Ms. Vipul Kumawat and

Ms. Nisha Maurya would have been selected under general women

category and by virtue of this migration, the respondent/writ-

petitioner being the next eligible OBC women candidate would

have been appointed. Learned counsel for the respondent/writ-

petitioner further submits that the order of the learned Single

Judge is based on the Apex Court judgments of Sadhana Singh

Dangi (supra) and Sandeep Choudhary (supra), wherein the

dictum of Rajesh Kumar Daria (supra) was duly considered and

therefore the order of the learned Single Judge, being just and

legal, calls for no interference.

ANALYSIS

9. Heard the arguments advanced by both the sides,

scanned the record of the appeal and considered the judgments

cited at Bar.

10. The primary contention of the appellant-RIICO is that

the order of the learned Single Judge is contrary to the Apex Court

judgment of Rajesh Kumar Daria (supra), the relevant part of

which is reproduced as under:

"9. 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 number will not be counted against the quota reserved

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for 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 [1992 Supp (3) SCC 217], R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684] and Ritesh R. Sah v. 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 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."

11. The issue in Rajesh Kumar Daria (supra) was limited

to the application of horizontal reservation within vertical

reservation as the issue of migration from reserved category to

open category was not considered therein, neither did the said

decision lay out the criteria/method for implementing horizontal

reservation in its entirety.

12. The proper and correct method of implementing

horizontal reservation for women was consolidated by Division

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Bench of Gujarat High Court in the case of Tamannaben

Ashokbhai Desai v. Shital Amrutlal Nishar reported in 2020

SCC OnLine Guj 2592, and the said method has been approved

and adopted by the Apex Court in the case of Saurav Yadav

(supra). The relevant portion of Tamannaben Ashokbhai Desai

(supra) is reproduced as under:

"69. For the future guidance of the State Government, we would like to explain the proper and correct method of implementing horizontal reservation for women in a more lucid manner.

PROPER AND CORRECT METHOD OF IMPLEMENTING HORIZONTAL RESERVATION FOR WOMEN

Social Reservation Quota (49%)

Classes (SEBC)

Horizontal Reservation for Women (33% in each of the above categories)

Step 1: Draw up a list of at least 100 candidates (usually a list of more than 100 candidates is prepared so that there is no shortfall of appointees when some candidates do not join after offer) qualified to be selected in the order of merit. This list will contain the candidates belonging to all the aforesaid categories. Step 2: From the aforesaid Step 1 List, draw up a list of the first 51 candidates to fill up the OC quota (51) on the basis of merit. This list of 51 candidates may include the candidates belonging to SC, ST and SEBC.

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Step 3: Do a check for horizontal reservation in OC quota. In the Step 2 List of OC category, if there are 17 women (category does not matter), women's quota of 33% is fulfilled. Nothing more is to be done. If there is a shortfall of women (say, only 10 women are available in the Step 2 List of OC category), 7 more women have to be added. The way to do this is to, first, delete the last 7 male candidates of the Step 2 List. Thereafter, go down the Step 1 List after Item 51, and pick the first 7 women (category does not matter). As soon as 7 such women from Step 1 List are found, they are to be brought up and added to the Step 2 List to make up for the shortfall of 7 women. Now, the 33% quota for OC women is fulfilled. List of OC category is to be locked. Step 2 List becomes final.

Step 4: Move over to SCs. From the Step 1 List, after Item 51, draw up a list of 12 SC candidates (male or female). These 12 would also include all male SC candidates who got deleted from the Step 2 List to make up for the shortfall of women.

Step 5: Do a check for horizontal reservation in the Step 4 List of SCs. If there are 4 SC women, the quota of 33% is complete. Nothing more is to be done. If there is a shortfall of SC women (say, only 2 women are available), 2 more women have to be added. The way to do this is to, first, delete the last 2 male SC candidates of the Step 4 List and then to go down the Step 1 List after Item 51, and pick the first 2 SC women. As soon as 2 such SC women in Step 1 List are found, they are to be brought up and added to the Step 4 List of SCs to make up for the shortfall of SC women. Now, the 33% quota for SC women is fulfilled. List of SCs is to be locked. Step 4 List becomes final. If 2 SC women cannot be found till the last number in the Step 1 List, these 2 vacancies are to be filled up by SC men. If in case, SC men are also wanting, the social reservation quota of SC is to be carried forward to the next recruitment unless there is a rule which permits conversion of SC quota to OC.

Step 6: Repeat Steps 4 and 5 for preparing list of STs.

Step 7: Repeat Steps 4 and 5 for preparing list of SEBCs.

70. The State Government as well as the GPSC shall, for all times to come, bear in mind that the effect of horizontal reservation, being provided under each

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category, is that it is only women, who belong to the Other Backward Classes, who can compete for the posts reserved for Other Backward Classes (Women) and not women who belong to the Scheduled Castes, the Scheduled Tribes and the unreserved category. Likewise, it is only women belonging to the Scheduled Castes and the Scheduled Tribes who can compete for the posts horizontally reserved in favour of Scheduled Castes (Women) and Scheduled Tribes (Women). A woman, not belonging to the reserved category (OBC, SC and ST), is not entitled to compete for posts reserved in favour of Other Backward Classes (Women), Scheduled Castes (Women) and Scheduled Tribes (Women).

71. The converse, however, is not true. All women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the General Category. There is no reservation for posts in the General Category, and horizontal reservation in favour of women in the General Category is available to be filled up from amongst all women irrespective of their caste status. The posts, reserved in favour of General Category (Women), are available for all women from the State of Gujarat, and that would include women belonging to the reserved categories such as OBCs, SCs and STs, and women who do not. Holding otherwise, would result in surreptitious introduction of reservation in favour of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation has been frowned upon by the Supreme Court in State of Madras v. Champakam Dorairajan: AIR 1951 SC 226."

13. The said method/criteria was specifically approved and

adopted by the Apex Court in Saurav Yadav (supra), wherein

the Apex Court expounded, and not distinguished, the dictum of

Rajesh Kumar Daria (supra). The relevant portion of Saurav

Yadav (supra) is reproduced as under:

"36. Similarly, the observations in Rajesh Kumar Daria [(2007) 8 SCC 785] were in the context of emphasising a

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distinguishing feature between vertical and horizontal reservations; in that:

(a) At the stage of vertical reservation, the reserved category candidates selected in Open/General category are not to be counted while filling up seats earmarked for the corresponding reserved categories.

(b) But the same principle of not counting the selected candidates concerned is not to apply for horizontal reservation.

Adopting principle (a) at the stage of horizontal reservation, the respondents in Rajesh Kumar Daria had separately allocated 11 seats for women in General Category as part of special or horizontal reservation, though another set of 11 women candidates had got selected, according to their own merit, in General Category quota. The quota of 11 seats for women having been already satisfied, this Court negated the theory that their number be disregarded while making horizontal reservation for women. It was in that context that the distinction between vertical and horizontal reservations was highlighted by this Court in para 9 of the decision. The subsequent sentence "thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women" in the very same paragraph and the illustration given thereafter are absolutely clear on the point.

...

43. Finally, we must say that the steps indicated by the High Court of Gujarat in para 69 of its judgment in Tamannaben Ashokbhai Desai v. Shital Amrutlal Nishar, 2020 SCC OnLine Guj 2592 contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No. 64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open/General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the waiting list for Scheduled Tribes-Female. The steps indicated by the Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a

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procedure must necessarily be left to the authorities concerned but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs."

14. Applying the law laid down by the Apex Court in the case of

Saurav Yadav (supra) to the facts of the case would reveal that

the appellant-RIICO is not correct in contending that the

reservation policy adopted by them was in consonance with the

guidelines issued in Rajesh Kumar Daria (supra). For

recruitment on the total 21 posts of Junior Assistants, the

diversion of which is already spelt out in para 2.1 above, the first

step would be preparing the entire list on the basis of merit and

out of the same, selecting the first 9 candidates, irrespective of

their caste and gender, in open category. This was rightly done by

the appellant-RIICO, as is evident from para 4 of the appeal. The

second step would be then of evaluating as to whether 2 women,

irrespective of their caste, are there within those 9 candidates so

as to meet with the requirement of horizontal reservation. This

exercise was also undertaken by the appellant-RIICO, though at a

later stage and which ultimately vitiated the correct application of

horizontal reservation. The appellant-RIICO correctly noticed that

the merit list for open category did not consist of any women and

therefore the last two male candidates were correctly removed.

However, at this stage itself, the appellant-RIICO ought to have

examined the women from the overall merit list and select the two

most meritorious women, irrespective of their category. If this

exercise was correctly undertaken by the appellant-RIICO, then

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the two selected women in the open category would include Ms.

Vipul Kumawat (OBC Female) and Ms. Nisha Maurya (OBC

Female), leaving behind the respondent/writ-petitioner as the

most meritorious in the OBC female category. However, the

appellant-RIICO failed to do so, on an apparent misunderstanding

of the Apex Court judgment of Rajesh Kumar Daria (supra).

The approach adopted by the appellant-RIICO is contrary to

position of law as laid by the Apex Court in Saurav Yadav

(supra) and cannot be countenanced.

15. The order impugned of the learned Single Judge is also

based on the Apex Court judgments of Sadhna Singh Dangi

(supra) and Sandeep Choudhary (supra), which followed the

dictum of Saurav Yadav (supra).

16. In view of the foregoing analysis and considering that the

order of the learned Single Judge is based on the position of law

as laid out by the Apex Court, there is no question of interfering

with the order impugned.

RESULT

17. Accordingly, the present appeal stands dismissed. Pending

application(s), if any, shall stand disposed of.

(SAMEER JAIN),J (AUGUSTINE GEORGE MASIH),CJ

ANIL SHARMA /15

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