Telangana High Court
S. Ravikumar vs The Singareni Collieries Company ... on 24 January, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.25991 of 2023
ORDER:
This Writ Petition is filed questioning the action of
respondents 1 to 3 in treating the woman reservation as the
vertical reservation instead of treating it as horizontal reservation
and selecting and appointing 4th respondent, who is less
meritorious candidate than the petitioner, for the post of
Programmer Trainee, E-1 Grade (Internal) (for short 'Programmer
Trainee'), pursuant to the notification issued in Circular Ref.
No.CRP/PER/R/2023/240, dated 01.03.2023, for selection of the
posts through Internal Candidates, insofar as the Programmer
Trainee, is concerned, under the guise of implementing the 33.33%
of Women Reservation, as arbitrary, illegal and violative of Articles
14, 16 and 21 of the Constitution of India and contrary to the Dicta
laid down by the Hon'ble Supreme Court in Rajesh Kumar Daria
v. Rajastan Public Service Commission and others 1, Public
Service Commission, Uttaranchal v. Mamta Bisht and others 2,
K. Venkatesh and another v. Government of AP and others 3
and consequently to read down the Notification dated 01.03.2023
insofar as 33.33% of women reservation is concerned, set aside the
100 point roster insofar as women reservation roster points are
1 AIR 2007 SC 3127 2 2010 (12) SCC 204 3 2009 (6) ALT 483 2
concerned and consequently to direct respondents 1 to 3 to follow
the principle of Horizontal Reservation for the women reservation,
without earmarking any roster points for them duly following the
judgments of the Hon'ble Supreme Court in Rajesh Kumar Daria
and Mamta Bisht (referred supra), by counting the meritorious
Women Candidates also against the 33.33% of Women Reservation
quota posts and set aside the selection and appointment of 4th
respondent for the post of Programmer Trainee and consider the
case of the petitioner for appointment, based on his higher merit,
against the notified posts of Programmer Trainee pursuant to
notification dated 01.03.2023 for selection of posts through
internal candidates insofar as Programmer Trainee is concerned.
2) Facts of the case, which are necessary for disposal of the
case, are that the petitioner belongs to BC-B Community, passed
B.Tech. (CSE), and a local and internal candidate. He was initially
appointed as Junior Assistant on 04.05.2016 and thereafter
promoted as Senior Assistant and has been working as such in the
Corporate Office, Kothagudem, Bhadradri-Kothagudem District,
and eligible for the post of Programmer Trainee (IT), E1 Grade, as
an Internal Candidate, based on his qualification and experience.
While so, the third respondent has issued the notification dated
01.03.2023 for filling up the vacancies of (6) Executive cadre and
(4) Non-Executive cadre posts through Internal candidates. Among 3
the 6 Executive Cadre posts, Programmer Trainee (IT), E-1 Grade
(Internal)-4 posts under local category were notified at Sl.No.4, out
of which OC-2, OC-1 and ST-1 were earmarked. In response to the
said notification, the petitioner has applied for the post of
Programmer Trainee. Petitioner, 4th respondent and others have
appeared for the written test held on 27.08.2023, results were
published on the same day i.e. on 27.08.2023, provisional merit
list was published on 27.08.2023, final merit list and selection list
was published on 09.09.2023 wherein the petitioner got 66.83
marks, stood at 3rd place and the 4th respondent got 65.28 marks
and stood at 4th place. It is the grievance of the petitioner that
though he stood at 3rd place, the respondents have not selected
him and selected the 4th respondent contrary to the Rules. Hence,
the petitioner is before this Court.
3) Heard Sri Chandraiah Sunkara, learned counsel for the
petitioner, Sri P. Sri Harsha Reddy, learned Standing Counsel for
The Singareni Collieries Company Limited (SCCL), appearing for
respondents 1 to 3 and Ms. B. Rachana Reddy, learned Senior
counsel, appearing for Sri Basid Riaz, learned counsel for
respondent No.4.
4) It has been contended by the learned counsel for the
petitioner that the third paragraph of the notification dated 4
01.03.2023 deals with general conditions, sub-paragraph (19)
thereof deals with Rule of Reservation and sub-paragraph (20)
thereof deals with Rule of Reservation for local candidates. After
placing the original list in the website of the first respondent
Company by the third respondent, the petitioner has made a
representation dated 01.09.2023 to the second and third
respondents requesting them to consider his case for selection for
the post of Programmer Trainee by implementing the Rule of
Women Reservation as Horizontal reservation wherein he has
categorically stated that the second ranker with 66.88 marks is
satisfying the women reservation adequacy, and therefore as per
the directions of the Hon'ble Apex Court, the petitioner has
requested the official respondents to consider his case for selection
by implementing horizontal reservation for women category. It is
further contended that the action of the respondents in
implementing the women reservation as vertical reservation is
arbitrary, illegal and contrary to the law laid down by the Hon'ble
Apex Court. It has been further contended that on 09.09.2023, the
third respondent has issued the selection list for the post of
Programmer Trainee and selected the fourth respondent with 65.28
marks (4th ranker) against roster point No.55-OC (W) Local
category. Further, the first ranker (Mohd. Abdul Muzeeb) with
68.60 marks was selected against roster point No.56 (OC-Local); 5
the second ranker (Bandela Sumalatha) with 67.88 marks was
selected against roster point No.57 (OC-Local); the tenth ranker
(Bhukya Ravi Kumar) with 61.88 marks was selected against roster
point No.58-ST (Local) and the petitioner, who is the third ranker,
was not selected and not appointed. On enquiry, the petitioner
came to know that respondents 1 to 3 have followed the Women
Reservation as the vertical reservation and fixed the roster points
treating the Women Reservation as the vertical reservation and
appointed the 4th respondent who is less meritorious than the
petitioner. It is further contended that as per the notification only
one post is reserved for OC-Women, two posts are reserved for OC
and one post is reserved for ST. As Bandela Sumalatha, Women
candidate, was already selected as Programmer Trainee, she
satisfies one post of OC-Women Reservation quota i.e. 33.33%.
Therefore, the other two OC posts have to be filled up based on
merit only without earmarking any roster points for women
candidates and the petitioner being the third ranker has to be
selected against one OC vacancy instead of the 4th respondent, who
is less meritorious than the petitioner. Therefore, the action of
respondents 1 to 3 in applying the woman reservation also as
vertical reservation and fixing the roster points is illegal and
arbitrary. Learned counsel has further contended that the
respondents have arbitrarily selected and appointed two woman 6
candidates though they have notified only one post for woman
candidate, which practically amounted to 50% reservation in the
four notified posts, and the same is illegal, arbitrary and against
the judgments of the Hon'ble Supreme Court in Rajesh Kumar
Daria, Mamta Bisht (referred supra), R.K. Sabharwal v. State
of Punjab 4 and also Indra Sawhney v. Union of India 5. It is
further contended that as per the ratio laid down in
R.K. Sabharwal case (referred supra), the reservation has to be
implemented on 'Post based' but not on 'Vacancy based' in the
form of running account from year to year indicating roster
reserved points. The reserved candidates, who were selected based
on their merit in general category posts, cannot be counted against
the reserved posts. Learned counsel has brought to the notice of
this Court that the Government of India issued Office
Memorandum No.36012/2/96-Estt (Res), dated 02.07.1997, for
the purpose of replacing the vacancy based rosters with that of
posts based rosters. Annexure-II thereof stipulates the Model
Roster of Reservation with reference to posts for direct recruitment
on all India basis by open competition and as per the existing
policy of reservation, the percentages of reservations are that for
i.e. SC @15%, ST @7.5%, OBC @27% and balance posts are
unreserved for general. Hence, the respondents also ought to have
4 AIR 1995 SC 1371 5 1992 Supp. (3) SCC 217 7
adopted the above method while preparing the roster points, but
they failed to follow the law declared by the Hon'ble Supreme Court
and the model roster prepared by the Government of India.
Learned counsel has further contended that in Rajesh Kumar
Daira's case (referred supra), the Hon'ble Supreme Court has
held that the persons belonging to reserved category, but appointed
to non-reserved posts based on their own merit, cannot be counted
against the reserved quota in case of vertical (Social) reservations,
but would be so counted in case of horizontal (Special) reservation.
It was further clarified as to how the horizontal (Special)
reservation in favour of physically handicapped and women, etc.
have to be implemented and the same was reiterated in case of
Mamta Bisht (referred supra). Therefore, as per the decisions of
the Hon'ble Apex Court, woman candidate selected on merit basis
within the vertical reservation quota will be counted against
horizontal reservation for woman. Hence, it is not open for the
respondents to operate the vacancy based woman reservation
roster points contrary to the decisions of the Hon'ble Supreme
Court. As such, the action of respondents 1 to 3 in selecting and
appointing woman candidates providing for woman roster points
pursuant to the notification dated 01.03.2023 and the further
action of respondents in following the 100 roster points under Rule
22 and 22-A of the Telangana State and Subordinate Service Rules, 8
1996, in respect of women reservation roster points is arbitrary
and illegal. The action of the respondents in treating the horizontal
and vertical reservation alike and selecting the women candidates
by providing more than 50% reservation and their action in
selecting the 4th respondent, who is less meritorious than the
petitioner, is illegal and arbitrary. As such, the action of
respondents 1 to 3 in treating the woman reservation as vertical
reservation instead of treating it as horizontal reservation within
the vertical reservation, is liable to be declared as illegal and
arbitrary. Learned counsel has further contended that as per the
dicta laid down by the Hon'ble Supreme Court, the respondents
can select woman candidates to the extent of 33.33% wherever
woman candidates are available, if necessary by deleting the male
candidates in respective social reservation groups. Otherwise,
those posts which were vacant due to non-availability of women
candidates can be filled by up by the male candidates. Therefore,
the action of the official respondents in not adhering to the ratio
laid down by the Hon'ble Supreme Court, is illegal and arbitrary.
It is further contended that as per the decisions of the Hon'ble
Supreme Court in Rajesh Kumar Daria (referred supra) as
reiterated in Mamta Misht (referred supra), the woman
reservation has to be followed as horizontal reservation and the
procedure for following the horizontal reservation was also 9
indicated in the above said judgments. Duly following the above
dicta, the Government of Andhra Pradesh has issued
G.O.Ms.No.40, Women & Child Welfare, Differently Abled and
Senior Citizens (Prog.II), Department, dated 25.07.2016, and the
principle applicable to the vertical (social) reservations will not
apply to horizontal (special) reservations. Therefore, where a
women reservation is provided within the social reservation for
SCs, the proper procedure is first to fill up the quota for SCs in
order of merit and then find out the number of candidates among
them who belong to the Women Reservation group of 'Scheduled
Caste Women". If the number of women in such list is equal to or
more than the number of women reservation quota, then there is
no need for further selection towards the women reservation quota.
Only if there is any shortfall, the requisite number of Schedule
Caste women shall have to be taken by deleting the corresponding
number of candidates from the bottom of the list relating to
Scheduled Caste. Following the same, the Government of Andhra
Pradesh has issued G.O.Ms.No.63, GAD, dated 17.04.2018
amending Rule 22-A (2) of A.P. State and Subordinate Service
Rules, 1996, by providing special representation to women
candidates. It is further urged that the law declared by the Hon'ble
Supreme Court is binding on all Courts within the territory of
India in terms of Article 141 of the Constitution of India. Similarly 10
it is equally binding on the State Governments too. Therefore, the
action of the respondents in not issuing similar amendment and
not following the dicta settled by the Hon'ble Supreme Court is
arbitrary and illegal. If the women reservation is not implemented
as horizontal reservation and implemented as if it is a vertical
reservation, the total reservation would come to 87.33%, which
would exceed the 50% ceiling limit prescribed by the Hon'ble Apex
Court in Indra Sawhney case (referred supra). In similar
circumstances, a Division Bench of erstwhile High Court of Andhra
Pradesh in K. Venkatesh's case (referred supra) held that
women reservation under Rule 22-A of the A.P. State and
Subordinate Service Rules, 1996, has to be implemented only as
horizontal reservation so that total percentage of reservation would
not exceed 50% ceiling limit. It is further contended that the other
Recruitment Agencies in the State of Telangana, including
Telangana State Public Service Commission, have been following
the woman reservation as horizontal reservation. Further, in
respect of Medical Admissions, the Government of Telangana has
issued G.O.Ms.No.27, Health, Medical and Family Welfare (C1)
Department, dated 10.04.2017, and G.O.Ms.No.114 Health,
Medical and Family Welfare Department, dated 05.07.2017
wherein the Women reservation and Physically Handicapped
Reservation were specified as Horizontal reservations. Thus, the 11
learned counsel has contended that the action of the official
respondents in implementing the women reservation as vertical
reservation is illegal, arbitrary and contrary to the law laid down by
the Hon'ble Supreme Court. At the cost of repetition, the
judgments relied by the learned counsel are listed hereunder, for
the purpose of convenience:
1) Rajesh Kumar Daria's case (referred supra);
2) Mamta Bisht's case (referred supra);
3) R.K. Sabharwal's case (referred supra);
4) Indra Sawhney's case (referred supra);
5) K. Venkatesh's case (referred supra);
6) M. Reddi Bhaskar Reddy v. State of Andhra Pradesh 6.
5) Per contra, the learned Senior counsel appearing for the
fourth respondent has contended that the writ petition is not
maintainable on the ground that multiple reliefs are sought in the
writ petition. It is further contended that paragraph III of the
notification deals with general conditions, Rule of Reservation for
the local candidates for the post of non-executive cadre and
executive cadre. However, the notification does not state with
regard to horizontal reservation being followed in the said
recruitment. Respondent-Singareni Collieries Company Limited
6 AIR Online 2021 AP 34 12
(SCCL), being an Autonomous Body, will have its own Regulations
for providing Women Reservation and thereby issued the present
notification by following women reservation and accordingly
allotted vacancies for the post of Programmer Trainee-Local (4)
vacancies out of which OC-2, OCW-1 and ST-1 are earmarked.
Therefore, the general Rule of Reservation cannot be made
applicable to the respondent-SCCL unless the same is ratified by
the Board of SCCL. Hence, any law or Regulation of State/Central
Government are not binding on the SCCL per se. Learned senior
counsel has further contended that the petitioner failed to produce
any material of the SCCL which categorically show that horizontal
reservation is being followed by it in the notification. If the
petitioner had been really aggrieved by the reservation policy being
followed in the present notification, he ought to have challenged
the said notification dated 01.03.2023 itself before it is coming
under execution. However, the same is challenged on 15.09.2023
i.e. after completion of selection process, only because of the fact
that the petitioner is not selected as he failed to obtain merit,
which cannot be a reason/ground for questioning the reservation
policy and challenge the appointment of other meritorious
candidate i.e. respondent No.4 herein. According to the learned
senior counsel, once the notification is released and it is set into
motion, selection list and appointment orders are issued, the 13
selection process undertaken based on reservation policy adopted
by the SCCL cannot be challenged in view of the fundamental law
laid down by the Hon'ble Supreme Court in various cases that "the
Rules of the game cannot be changed once the game has begun".
It is further contended that the present notification categorically
allotted the vacancy position i.e. OC-02, OCW-01, ST-1 and
accordingly following roster, the SCCL has rightly considered
respondent No.4 under the head OCW-1 as the respondent No.4 is
the next immediate women candidate under merit after the
vacancies are filled under Open Competition. The roster
description was clearly specified indicating the vacancies reserved
for women and the 100 points roster is followed by SCCL for filling
up of vacancies through recruitment. The starting roster point in
the present notification is 55 and ending roster point is 58. Among
those 4 roster points, point No.55 belongs to OC-Women, 56 and
57 belong to OC and 58 belongs to ST. Therefore, among the first
four candidates in the order of merit, 2 candidates are female, who
stood at rank Nos.2 and 4. Further, the first women candidate
who stood at 2nd rank got selected under OC quota and the next
women candidate who stood at 4th rank was selected under OC-
Women quota. Therefore, there is no illegality or infirmity with
regard to roster and respondent No.4 being the first women under
merit deserves to be selected in accordance with the roster 14
specified in the notification. Learned senior counsel has
vehemently contended that undisputedly two types of reservations
i.e. horizontal and vertical reservations are being followed.
Further, the rule laid down by the Hon'ble Supreme Court in the
judgments relied by the petitioner was in the context of direct
recruitment. But, in the present case, the notification issued is an
internal notification, in which case, the SCCL has its own rules
and procedure, based on which, the recruitment process will be
carried out. Further, the GOs, Circulars, Memos issued by the
Central or State Government are not binding on the SCCL unless
they are specifically adopted/ notified by SCCL. Therefore, the
present set of facts are not similar with the case laws cited by the
petitioner. It is further contended that had the petitioner found
illegality in the roster being followed by the SCCL, he ought to have
challenged the roster in a separate Writ Petition, which he has not
done. The petitioner is alleging illegality in the roster and in the
reservation policy being adopted by the SCCL in the present
notification, only after he was not selected for the post of
Programmer Trainee. It is further contended that the respondent
SCCL followed vertical reservation in the present notification and
there is no whisper with regard to horizontal reservation neither in
the present notification nor in any of the Recruitment Rules of
SCCL. Therefore, the entire notification is carried based on vertical 15
reservation. While drawing the attention of this Court to the
categorical assertions made by the Hon'ble Apex Court in Rajesh
Kumar Daria's case (referred supra), the learned Senior Counsel
has contended that in the present notification, the posts are
notified as OC-2, OCW-1, ST-1 and it is categorically notified as
OCW (open competition Women) and it is nowhere stated in the
notification that under OC-2, one post is reserved for women, in
which case, if one woman is filled under OC-2, the other reserved
post would be left for OC. In the absence of such scenario, the
petitioner cannot question that the post allotted to respondent
No.4 has to be treated under Open Competition as one Women is
already filled under open competition. Learned Senior counsel has
strenuously contended that in the case on hand, the SCCL itself
has carried the recruitment process by way of internal recruitment
and followed vertical reservation duly notifying separate post
categorically for women. Therefore, the general recruitment rules
cannot be made applicable for the internal recruitment and the
SCCL will follow its own rules of recruitment. It is further
contended that the provisional offer of Appointment order dated
13.09.2023 was already issued to respondent No.4, who in turn,
has also underwent Initial Medical Examination (IME) on
19.09.2023. Therefore, the recruitment process is deemed to be
completed. Once the appointment process has begun, the same 16
cannot be disturbed in view of the law settled by the Hon'ble
Supreme Court. Hence, it is prayed to dismiss the writ petition.
6) On the other hand, the learned Standing Counsel for SCCL
while adopting the arguments advanced by the learned Senior
Counsel has further contended that SCCL is undertaking both
external and internal recruitment from time to time as per the
recruitment rules of the Company and implementing the rule of
reservations and local reservations as per the Presidential Order,
2018, as adopted by the Board of Directors of SCCL. Further, the
SCCL formulates Rules and Policies suitable to the needs of the
Mining Industry with approval of the Board and the Government
Rules and policies are applicable to the extent they are adopted by
the Board. It is further contended that State and Subordinate
Service Rules issued by Telangana State Government are being
used as guiding factors for conducting direct recruitment in SCCL.
Women reservation is being implemented in direct recruitment as
per Rule 22-A of Telangana State and Subordinate Service Rules,
1996. As per the policy of the SCCL, the principle of vertical
reservation is being followed in respect of filling up women reserved
vacancies. Further, the principle for filling up women reserved
vacancies only in horizontal reservation was not specified in the
Telangana State and Subordinate Service Rules, 1996. Therefore,
the notification is issued well in accordance with the Rules in 17
vogue, the Writ Petition is devoid of merits and accordingly prayed
to dismiss the same.
7) This Court has taken note of the rival submissions made by
all the parties and perused the entire material available on record.
8) Respondents 1 to 3 have issued notification dated
01.03.2023 inviting online applications from the eligible candidates
for filling up the vacancies of Executive and Non-Executive cadre
posts, in which, 4 vacancies were notified for the post of
Programmer Trainee (Internal) under local category. Out of those
four vacancies, 2 posts were earmarked for OC, one was earmarked
for OC-Women and one for ST.
9) As per Rule 22 and 22-A of Telangana State and Sub-
ordinate Service Rules, 1996, the following roster points are
earmarked for OC-Women candidates : 1, 12, 17, 23, 30, 34, 38,
50, 55, 59, 65, 71, 78, 84, 90, 96.
10) The Hon'ble Apex Court in Rajesh Kumar Daria's case
(referred supra) has declared that the social reservations in favour
of SC, ST and OBC under Article 16(4) of the Constitution of India
are 'vertical reservations' and special reservations in favour of
physically handicapped persons and women under Articles 16(1) or 18
15(3) are 'horizontal reservations'. Relevant observations of the
Hon'ble Apex Court are extracted hereunder:
"7. A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P. [1995 (5) SCC 173] thus:
"The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e.SC, ST and BC; 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 overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/ accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.)
[Emphasis supplied]
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 19
own merit, their number 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 vs. Union of India (1992 Supp (3) SCC 217), 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 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 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 20
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.]
11) The above determined law was reiterated by the Hon'ble Apex
Court in its subsequent judgment in Mamta Bisht (referred
supra) and the said law still holds the field.
12) Further, the Hon'ble Supreme Court in Rajesh Kumar
Daria (referred supra) has also explained a proper mode of
description of reservation. Relevant portion of the said judgment is
extracted hereunder:
"8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC should be : "For SC: 30 posts, of which 9 posts are for women." We find that many a time this is wrongly described thus: "For SC: 21 posts for men and 9 posts for women, in all 30 posts." Obviously, there is, and there can be, no reservation category of "male" or "men"."
21
13) Following the above said proposition of law, a Division Bench
of erstwhile High Court of Judicature at Hyderabad in
K.Venkatesh's case (referred supra), has held as under:
"12. We, therefore have no hesitation to hold that General Rules 22, 22-A and Special Rule 10, are only intended to advance the cause of women by ensuring that 33 1/3% of vacancies in each category such as OC, SC, ST and BC, are filled in by such women candidates. Such reservation of 33 1/3% in favour of the women is a horizontal reservation, but not a vertical reservation. If we were to construe it otherwise as a vertical reservation, the total percentage of reservations would touch 79 1/3%, thus reducing the open competition vacancies to a mere 20 2/3% which is wholly impermissible. It will then, fall foul of the crystallized ceiling limit of 50%. Therefore, to save the reservation of posts/vacancies in favour of women from such a catastrophe, they are liable to be treated only as horizontal reservation. In other words, in each of the segments viz., open competition, schedule castes, schedule tribes or backward classes, the State will ensure that 33 1/3% of vacancies are filled in by women. If in the normal course of finalizing the merit lists, such number of women candidates representing 33 1/3% make their grade on their own, no further action is needed to be undertaken by the State. But, on the other hand, if there is any shortfall of women candidates, to the extent of such shortfall, from the bottom of the list, the meritorious male candidates would be replaced in the reverse order by the next most meritorious women candidates in their descending order of merit. To illustrate this by an example, if 51 open competition vacancies, 15 schedule caste vacancies, 9 schedule tribe vacancies and 25 backward class vacancies have to be filled in by the State, simultaneously providing 33 1/3 thereof to be filled in by women candidates, what all is required to be done is to arrange the names of the candidates belonging to the open category, schedule caste, schedule tribe, backward classes in the descending order of merit to the exact requisite numbers, i.e., 51-Open, 15-SC, 9-ST and 25-BC, then it 22
shall count as to the number of women candidates already included therein. If there are 17 women candidates in the open competition list of 51 candidates, then, no further action is needed to be taken up. Similarly, if 5-SC women, 3-ST women and 8-BC women are found included in those respective lists, No further action is needed to be undertaken by the State. On the contrary, if 15 women candidates, 3 SC-women candidates, 2-ST women candidates, and 5 BC-Women candidates alone are found included in the merit list, then the respective most meritorious 2-OC, 2-SC, 1-ST and 3 BC-women candidates will have to be picked up to make good the shortfall and the corresponding number of male candidates at the bottom of the merit list will have to be replaced by these respective numbers of women candidates. That will ensure the representation of 33 1/3% of women candidates in the respective categories of selection, without seriously compromising the overall merit of the candidates."
14) Before dwelling into the matter further, this Court feels it apt
to mention that the petitioner herein has challenged only the
manner of implementation of woman reservation by the respondent
SCCL and so also the 100 roster points fixed under Rule 22-A of
Telangana State and Subordinate Service Rules, 1996, however, no
challenge was made to Rule 22 and 22-A of Telangana State and
Sub-ordinate Service Rules, 1996.
15) The petitioner is solely challenging the manner followed by
the SCCL in filling the 4 vacancies without therebeing any
challenge to the notification dated 01.03.2023, wherein the 4
vacancies were notified under local category earmarking OC-2,
OCW-1 and ST-1. Once, one post is earmarked for OC-Woman, as
per the Regulations of SCCL, and if said notification is contrary to 23
Rule 22 and 22-A of Telangana State and Subordinate Service
Rules, 1996, as contended by the petitioner's counsel, the only
remedy to the petitioner is to challenge Rule 22 and 22-A and in
the absence of any such challenge he is estopped from challenging
either the roster points prescribed under the said Rules or the
recruitment undertaken based on the said roster points. In the
absence of any challenge to the Rules, the grievance of the
petitioner that can be looked into by this Court is limited to
'whether the selection and appointment undertaken by the SCCL is
inconsonance with the notification dated 01.03.2023 or not?'
16) In the notification dated 01.03.2023 nowhere the SCCL has
prescribed that recruitment exercise will be undertaken by treating
the women reservation either as 'horizontal reservation' or 'vertical
reservation'. However, in the counter affidavit, they have
categorically asserted that SCCL has adopted the Telangana State
and Subordinate Service Rules, 1996. The question as to whether
the said Rules are inconsonance with the law laid down by the
Hon'ble Supreme Court or not cannot be gone into by this Court as
the same amounts to impermissible travel beyond the scope of the
Writ Petition, since there is no challenge to the Rules.
17) Coming to the judgments relied by the learned counsel for
the petitioner in Rajesh Kumar Daria, Mamta Bisht, 24
R.K. Sabharwal and Indra Sawhney (referred supra), there is
no dispute with regard to the law laid down by the Hon'ble
Supreme Court in the said cases, but the said judgments cannot
be made applicable to the facts of the present case since, in the
case on hand, no challenge was made to Rule 22 and 22-A of the
State and Subordinate Rules, 1996, which prescribe something
otherwise.
18) Insofar as the decision in Reddi Bhaskar Reddy' case
(referred supra) is concerned, in the said case, notification was
challenged before the Court, but in the present case, the petitioner
has not chosen to challenge the notification dated 01.03.2023.
Hence, the said judgment is distinguishable on facts of the present
case.
19) Coming to the judgment in K. Venkatesh's case (referred
supra), the Division Bench, even in the absence of any challenge to
Rule 22 read with General Rule 22-A, has held that the reservation
of 331/3% in favour of women shall be treated as horizontal
reservation only. But, in spite of holding that the manner of
selection and appointment of women candidates in each category
of posts was not correctly followed, the Division Bench has not set
aside the selection and appointment of unofficial respondents
therein, instead, directed the official respondents to adjust the 25
petitioners therein and other similarly situated persons, against
the vacancies that became available after the publication of the
notification therein. But, it is pertinent to note that the Division
Bench has not set aside Rule 22 or 22-A of Telangana State and
Subordniate Rules, 1996, and they are still in force. Therefore, in
the absence of any challenge to the notification dated 01.03.2023
and in view of the submission of the learned Standing Counsel that
as of no vacancies are available, the concession granted to the
petitioners in K. Venkatesh's case (referred supra) cannot be
granted by this Court to the petitioner in the instant case.
20) Thus, viewed from any angle, the grievance of the petitioner
cannot be attended to by this Court in the absence of challenge to
Rule 22 and 22-A of Telangana State and Subordinate Rules, 1996,
and also the Notification dated 01.03.2023.
21) With the above observations, the Writ Petition is dismissed.
Miscellaneous petitions pending, if any, shall stand closed.
No costs.
____________________ PULLA KARTHIK, J Date : 24-01-2024.
sur
Note : 1) L.R. Copy to be marked
2) Issue C.C. in three days
