WPSS/673/2022
2023 Latest Caselaw 1083 UK

 IN THE HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
          ON THE 21ST DAY OF APRIL, 2023
                            BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       WRIT PETITION (S/S) No. 673 of 2022

BETWEEN:

Khushal Singh.                                   .......Petitioner
      (By Mr. B.D. Upadhyay, learned Senior Counsel)

AND:
State of Uttarakhand & others.                   ....Respondents

      (By Mr. Narain Dutt, learned Brief Holder for the State of
      Uttarakhand/respondent nos. 1 & 2 and Mr. Ashish Joshi, learned
      counsel for respondent no. 3)


                         JUDGMENT

Heard learned counsel for the parties.

2. This writ petition has been filed for the following substantive reliefs:-

"i) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 to recommend the name of the petitioner to the respondent No. 1 against one vacant post of Lecturer in Physics under GEN/UF category under rule 6.1 (Kha) of the Rules of 2012.

ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 1 and 2 to appoint the petitioner on the post of Lecturer in Physics forthwith."

3. Petitioner participated in a selection and there were 67 vacancies on the post of Lecturer (Physics), which were advertised. Out of these 67 posts, some posts were reserved for Uttarakhand Women.

4. According to petitioner, since four selected candidates belonging to Uttarakhand Women category

did not turn up for joining, therefore, the State Government requested the Selecting Body to recommend four more names from waiting list, however, Selecting Body recommended names of only three candidates belonging to said category, and decided to carry forward fourth vacancy for future selection.

5. It is contended on behalf of petitioner that reservation available to Uttarakhand Women is horizontal in nature, therefore, the unfilled vacancies earmarked for Uttarakhand Women cannot be carried forward. It is further contended that since petitioner is placed at serial no. 1 in the waiting list amongst General Category (Male Candidates), therefore, his name ought to have been recommended for appointment against the fourth vacancy, which was decided to be carried forward.

6. It is not in dispute that reservation given to Uttarakhand Women Candidate is horizontal in nature, therefore, vacancy available to Uttarakhand Women Candidate cannot be carried forward, in view of law laid down by Hon'ble Supreme Court in the case of Indra Sawhney v. Union of India, 1992, Supp. (3) SCC 217. In the case of Jitendra Kumar Singh v. State of Uttar Pradesh and Others, (2010) 3 SCC 119, Hon'ble Apex Court has summarised the legal position in paragraph no. 40 of the judgment, which is extracted below-

"40. The Division Bench in the impugned judgment has traced the history of reservation at considerable length. It has also distinguished between vertical and horizontal reservations. It has also correctly concluded that in case of horizontal reservation, the carry-forward rule would not be applicable. All these issues are no longer res integra, in view of the authoritative judgment rendered in Indra Sawhney. It can also be no longer disputed that reservation under Article 16(4) of the Constitution of India aims at group backwardness. It provides for group right. Article

16(1) of the Constitution of India guarantees equality of opportunity to all citizens in matters relating to employment. However, in implementing the reservation policy, the State has to strike a balance between the competing claims of the individual under Article 16(1) and the reserved categories falling within Article 16(4)."

7. Similar view has been expressed by Hon'ble Supreme Court in the case of Saurav Yadav and others v. State of Uttar Pradesh, (2021) 4 SCC 542. Paragraph no. 60 of the said judgment is reproduced below, for ready reference:-

"60. Horizontal reservations on the other hand, by their nature, are not inviolate pools or carved in stone. They are premised on their overlaps and are "interlocking" reservations. As a sequel, they are to be calculated concurrently and along with the inviolate "vertical" (or "social") reservation quotas, by application of the various steps laid out with clarity in para 21.3* of Lalit, J.'s judgment. They cannot be carried forward. The first rule that applies to filling horizontal reservation quotas is one of adjustment i.e. examining whether on merit any of the horizontal categories are adjusted in the merit list in the open category, and then, in the quota for such horizontal category within the particular specified/social reservation.".

8. Thus, this Court finds substance in the contention raised on behalf of petitioner that fourth vacancy earmarked for Uttarakhand Women Candidates, against which no suitable candidate was available, should not have been carried forward.

9. Accordingly, writ petition is allowed. Respondent no. 3 is directed to consider petitioner's claim for appointment, as per his ranking in the merit list, within six weeks from the date of production of certified copy of this order.

(MANOJ KUMAR TIWARI, J.) Aswal