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2014 Supreme(HP) 1623
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAJIV SHARMA, SURESHWAR THAKUR, JJ.
Praveen Bharti and another - Petitioner
Versus
State of H.P. and others - Respondent
CWP No. 6864 of 2014
Decided on : 03-12-2014
Advocate Appeared:
For the Petitioner:Mr. Adarsh K. Vashishta, Advocate.
For the Respondent:Mr. M.A. Khan, Addl. A.G. with Mr. P.M. Negi, Dy. A.G. Ms. Archana Dutt, Advocate
The legal validity of denying appointment based on reservation policies and the prospective application of instructions.
Headnote:
Reservation - Appointment of Junior Engineers - Article 16 (4), Horizontal and Vertical Reservation - 8.11.1994 onwards - Instructions dated 23.10.2010 - Instructions Annexure R-II - Advertisement No. 25/2013 - 9.6.2014 - Legal validity of denying appointment - Prospective application
Fact of the Case:
Petitioners, belonging to scheduled caste category, qualified for the posts of Junior Engineers but were denied appointment based on instructions issued on 9.6.2014 regarding reservation policies.
Finding of the Court:
The court found that the denial of appointment based on the reservation policies was legal and directed the respondents to fill the posts from the scheduled caste ex-servicemen (unreserved) category within four weeks.
Issues: The main issue was the legal validity of denying appointment to the petitioners based on reservation policies and the prospective application of the instructions issued on 9.6.2014.
Ratio Decidendi: The court analyzed the reservation policies, including the distinction between horizontal and vertical reservation, and found that the denial of appointment was in accordance with the applicable instructions and the prospective application of the instructions was upheld.
Final Decision: The writ petition was disposed of, and the respondents were directed to fill the posts of Junior Engineer from the category of scheduled caste ex-servicemen (unreserved) within four weeks from the date of the judgment.
JUDGMENT :
Rajiv Sharma, J.
1. Respondent No.3 issued an advertisement No. 25/2013 dated 20.5.2013 whereby applications were invited for filling up the posts of Junior Engineers in IPH/HIMUDA. The last date of receipt of applications was 20.6.2013. Petitioners also participated in the selection process. They belonged to scheduled caste category. Written test was held on 10.1.2014. They qualified the written test and were called for interviews on 24.3.2014 and 25.3.2014, respectively. The result was declared on 20.4.2014. Petitioners were declared successful/suitable by respondent No.3. However, fact of the matter is that appointment letters were not issued to the petitioners purportedly on the basis of instructions issued on 9.6.2014.
2. Mr. Adarsh Vashistha, learned counsel for the petitioners, has drawn the attention of the Court to page 228 of the Handbook on Personnel Matters Volume-II (Second Edition). It reads as under:
?From 8.11.1994 there is Vertical Reservation in favour of Scheduled Castes, Scheduled Tribes and the Other Backward Classes under Article 16 (4) of the Constitution. The reservation provided to Ex-servicemen, children/grand children of freedom fighters, physically handicapped persons, antodaya/IRDP and outstanding sportsmen under Article 16 (1) of the Constitution is treated as Horizontal Reservation. The Horizontal Reservation is to be dove tailed with vertical reservation in the following manner:-
?The persons concerned have to be first selected against the respective quotas in favour of Ex-servicemen, physically handicapped persons etc. provided by Horizontal reservations under Article 16 (1) and thereafter depending upon the fact as to which of the reserved categories under Article 16 (4) (whether scheduled castes, scheduled tribes or other backward classes) or the residuary general category, they belong to, they have to be suitably adjusted against the said categories.?
3. In continuation to this, the State Government has also issued suitable instructions on 23.10.2010. The text of instructions dated 23.10.2010 read as under:
?I am directed to refer to your letter No.H.P.SSSB-B (2)-392/06-17:86 dated 7th September, 2010 on the subject cited above and to say that the horizontal reservation is dove-tailed with the vertical reservation. In the event of non-availability of suitable candidate (s) for appointment against the vacancy under horizontal reservation, the said vacancy can be filled up from the candidate of respective category to whom this vacancy/post originally belong/earmarked by following proper procedure. This Department (Appointment-III) has issued detailed instructions on the subject from time to time and case to case viz. Per (AP.II) B (19)-3/85 dated 14.7.1988 (appearing at page 802 of HB on personnel Matter Vol-II), No. Per (AP) C-F (4)-4/96 dated 12.5.1997 and No. 2-11/72-DP (A.II) dated 28.5.1999 vide letter dated 28th May, 1999, a photocopy each of these letters is annexed. It is requested that the matter may please be examined and decided accordingly.?
4. Mr. M.A. Khan, learned Additional Advocate General has drawn the attention of the Court to instructions Annexure R-II. These instructions are dated 14.7.1998. The crux of the instructions is that in cases where it is obvious that ex-servicemen will not at all be available for appointment to any category of posts, the posts so reserved for ex-servicemen may be filled by dependent sons, daughters and wives of ex-servicemen in the first attempt with the prior concurrence of the ex-servicemen cell in the Labour and Employment Department, Himachal Pradesh, Shimla. In case, sons, daughters and wives of ex-servicemen for posts authorized to be filled in the first attempt are not available then the reservation would be carried forward to four calendar years, as at present.
5. We have gone through these instructions quoted hereinabove. Petitioners have been declared successful/ suitable as per result declared on 20.4.2014. The instructions on the b
