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2019 Supreme(Guj) 1133
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
N.V. ANJARIA, J.
Fenilkumar Jayantibhai Bharwad – Appellant
Versus
State of Gujarat and Ors. – Respondents
R/Special Civil Application Nos. 18654, 18968 and 12292 of 2018
Decided On : 29-11-2019
Advocate Appeared:
For the Appellant :Gautam Joshi, Sr. Advocate and Vyom H. Shah
For the Respondents:Kamal Trivedi, Advocate General, Krina Calla, AGP, Shivang J. Shukla, Shalin Mehta, Sr. Advocate and Vidhi J. Bhatt
Point of Law: special reservation in favour of physically handicapped persons, women etc. are horizontal in nature as contrasted from vertical reservation. It was stated that in case of vertical reservation, reserved category candidates may compete for non-reserved posts and if they are appointed to non-reserved posts on their own merit, their number will not be counted against the reserved quota. However, the said principle will not apply to horizontal reservation
Headnote:
Constitution of India-Article 226- Action on part of the respondent No. 2 Gujarat Public Service Commission in including the name of respondent No. 3 in general category and excluding the name of the petitioner by showing him to be unsuccessful -Commission to include the name of the petitioner in the list of successful candidates and remit the same to the respondent State Government for the purpose of appointment to the post of Police Inspector
Facts of the Case:
All the petitioners applied for the post of Police Inspector, Unarmed, advertised by the respondent-Gujarat Public Service Commission (GPSC) on 15th July, 2017. The recruitment process consisted of preliminary examination in which the physical capacity was tested, the main written examination followed by oral interview. The petitioners appeared in all the three stages and cleared them. Total 115 posts were advertised, out of which 38 posts were reserved for female candidates under being 33% for women's category. After the oral interview, respondent GPSC published list of successful and unsuccessful candidates.
Finding of the Court:
Representative character has to be ensured in each category or compartment to the fullest percentage provided for that category. An even representation in the quota of women will have to be given, which would be true for each category, in each category or compartment. In other words, 33% women's reservation would cut across all the categories including the reserved categories provided by way of special reservation, to the benefit of women to ensure that 33% representation is maintained in each category for women candidates. Unless this method is applied, the object of providing 33% reservation to women in each category or compartment may go haywire or become illusory in a given exercise.
Result: Petitions allowed
JUDGMENT :
N.V. Anjaria, J.
1. As these three petitions filed under Article 226 of the Constitution involved similar facts and identical issues, they were heard together to be treated for final disposal by this common judgment.
1.1. Heard learned senior advocate Mr. Gautam Joshi with learned advocate Mr. Vyom Shah for the petitioners, learned Advocate General Mr. Kamal Trivedi with learned Assistant Government Pleader Ms. Krina Calla for respondent No. 1-State, learned advocate Mr. Shivang Shukla for respondent No. 2-Gujarat Public Service Commission and learned senior advocate Mr. Shalin Mehta assisted by learned advocate Ms. Vidhi Bhatt for respondent No. 3, at length.
2. The petitioner of Special Civil Application No. 18654 of 2018 has prayed to set aside the action on part of the respondent No. 2 Gujarat Public Service Commission in including the name of respondent No. 3 in general category and excluding the name of the petitioner by showing him to be unsuccessful. By terming such action as contrary to Government Resolution dated 01st August, 2018, the petitioner has further prayed to direct the respondent Commission to include the name of the petitioner in the list of successful candidates and remit the same to the respondent State Government for the purpose of appointment to the post of Police Inspector, Unarmed, on the same date on which other Socially and Educationally Backward Class (SEBC) Male candidates were appointed and to grant with all consequential benefits.
2.1. In the similar way, three petitioners of Special Civil Application No. 18968 of 2018 have prayed to set aside the action of the respondent No. 2 Commission in including the name of respondent Nos. 3 to 8 in their respective category and excluding the name of the petitioners by showing them to be unsuccessful. Further direction as prayed for in the first petition above are also prayed for. The prayer in the third petition filed by the petitioner of Special Civil Application No. 12292 of 2018, on same lines to set aside the action of the respondent No. 2 Commission in including the name of respondent No. 3 in her category and excluding the name of the petitioner by showing her to be unsuccessful. Same further directions are prayed for by this petitioner as well to include his name for appointment to the post etc.
3. All the petitioners applied for the post of Police Inspector, Unarmed, advertised by the respondent-Gujarat Public Service Commission (GPSC) on 15th July, 2017. The recruitment process consisted of preliminary examination in which the physical capacity was tested, the main written examination followed by oral interview. The petitioners appeared in all the three stages and cleared them. Total 115 posts were advertised, out of which 38 posts were reserved for female candidates under being 33% for women's category. After the oral interview, respondent GPSC published list of successful and unsuccessful candidates.
3.1. The case of the petitioner of the first mentioned petition who was a male candidate in SEBC category, is inter alia that the cut-off marks in SEBC category were 368.15, resultantly, this petitioner figured at Serial No. 85 in the list of unsuccessful candidate since he has secured 366 marks. In the category of SEBC Male, the petitioner would rank second in the list of unsuccessful candidates. It was stated that the cut-off marks for SEBC Female were fixed at 335.
3.1.1. Out of 30 seats available for SEBC Category, 10 were reserved for SEBC Female candidates. In the final result, four females belonging to SEBC class were shown as General Female candidates who were selected on their own merits. They were (i) Kumari Hina Kiritbhai Humbal (GF 14) at Serial No. 71, (ii) Kumari Himalben Ghemarbhai Rabari (GF 16) at Serial No. 78, (iii) Kumar Jinal Ghemarbhai Desai (GF 19) at Serial No. 82 and (iv) Kumari Shilpaben Mahadevbhai Desai (GF 20) at Serial No. 83. Now, in the category of SEBC Female excluding the above four females selected on her own
