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2013 Supreme(P&H) 429
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Augustine George Masih
CWP No. 11047 of 2010
Pearl Sidhu
v.
State of Punjab & Ors.
{Decided on 29/04/2013}
For the Petitioner in CWP No. 11047 of 2010
& For the Respondent No.3 in CWP No.10780 of 2009:Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Arjun Pratap Atma Ram, Advocate.
For the Petitioner in CWP No. 10780 of 2009
& For the Respondent No. 15 in CWP No. 15427 of 2010:Mr. M.K. Dogra, Advocate.
For the Petitioner in CWP No. 15427 of 2010:Mr. Ramesh Goyal, Advocate.
For the Petitioner in CWP No. 15563 of 2010:Mr. Gurdev Singh, Advocate.
For the Respondents:Ms. Monica Chhibber Sharma, Deputy Advocate General, Punjab.
For the Respondent No.8 in CWP Nos. 11047 of 2010
& 15427 of 2010:Mr. A.R. Takkar, Advocate.
Headnote:Service Law--Reservation--Vertical (Social) & Horizontal (Special) Reservation--Concept Explained.
(A) Service Law--Reservation--Direct Appointment-- Assistant Town Planner--11 posts of Assistant Town Planner advertised--Out of these 11 posts, one post to be filled from ESM Punjab category--One “A” and petitioner applied under Ex-servicemen Punjab category--After selection, petitioner was placed at Serial No. 3 in combined merit list and “A” at Serial No. 5--In category wise merit list, petitioner was placed at Serial No. 1 and “A” at Serial No. 2--”A” is asserting his appointment prior to petitioner on ground that he was possessing qualification as provided in Cl.(a), which is a preferential qualification, whereas petitioner possesses qualification as provided in Cl.(c)--Held, claim of petitioner cannot be ignored by passing merit obtained by her as assessed by commission since she has secured higher marks in merit than “A”--Punjab Town and Country Planning Class-II (Technical) Service Rules, 1998, R.5 & Appendix-B, Cl.(a) & (c). (Paras 14, 16, 17 & 19)
(B) Service Law--Reservation--Direct appointment--Horizontal reservation-- Assistant Town Planner--”A”(Male), in his writ petition asserted that petitioner herein (Female) having obtained 3rd rank in combined merit list would occupy a general category seat which would entitle him to be appointed against sole reserved category seat of ESM Punjab--Held, reservation to ESM category would fall to special reservation group and, therefore, would be a horizontal reservation--Meaning thereby that petitioner herein could not move on to general category post--However, in case “A” secures higher merit marks than last general category candidate selected and appointed, last general category candidate will have to make way for him--Punjab Town and Country Planning Class-II (Technical) Service Rules, 1998. (Paras 16, 17, 20 & 22)
(C) Service Law--Reservation--Vertical (Social) & Horizontal (Special) Reservation--Concept Explained.
“5. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney v. Union of India, [1992 Supp.(3) SCC 217], the principle of horizontal reservation was explained thus (para 812) :”.......all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [(under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1)of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations--what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1)of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC)category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains--and should remain--the same.”
A special 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 vs. State of U.P. [1995 (5) SCC 173] thus :
“ ........... The proper and correct course is to first fill up the Open Competition quota(50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; 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]”
6. 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’.
7-8. 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 numbers 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 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 (Supra), 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 vs. 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 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.]” (Para 21)
(D) Service Law--Filling up excess posts than advertised--Validity--Advertisement specifically provides that number of vacancies and reservation of posts is liable to be altered without any notice--Held, action of respondents in filling up vacancies which have arisen due to posts becoming available during selection process cannot be said to be not in accordance with law. (Paras 25 & 26)
(E) Service Law--50% marks for viva-voce--Propriety of--Challenge to selection and appointment on ground that criteria for selection, which allocates 50% marks for viva-voce, is excessive and same being contrary to law--Held, recruiting agency can evolve its own criteria for selection in absence of any statutory mandate--If process of selection and criteria is provided under statutory rules then same cannot be deviated from by recruiting authority--No statutory rules/instructions has been referred to by petitioners which would prescribe a criteria for selection or short listing of candidates--In absence of same, discretion is that of commission to evolve its own process of short listing and devise its own method for same--Challenge on above stated ground must fail. (Paras 27, 28 & 30)
Mr. Augustine George Masih, J.:- By this order I propose to decide Civil Writ Petitions No. 11047 of 2010, 10780 of 2009, 15427 of 2010 and 15563 of 2010, which pertain to selection to the post of Assistant Town Planners in pursuance to the advertisement dated 22.5.2009, issued by the Punjab Public Service Commission (in short ‘the Commission’).
2. In CWP No. 10780 of 2009, petitioner has approached this Court praying for quashing the selection of Ms. Pearl Sidhu as Assistant Town Planner under the Ex-servicemen category by asserting that she having scored higher marks than the general category candidate, should be appointed against the general category, leaving the post vacant for the petitioner to be appointed against the said post. Eligibility of Ms. Pearl Sidhu for appointment has also been challenged. It has further been asserted that the petitioner possesses preferential qualifications as prescribed in the advertisement, which would entitle the petitioner in this writ petition, i.e. Amolak Singh, to be appointed prior to Ms. Pearl Sidhu as he possesses a Post Graduate Degree in M. Tech (Urban Planning), whereas Ms. Pearl Sidhu is Bachelor in Architecture with experience of three years.
3. Notice in this writ petition was issued and during the pendency of the writ petition, Amolak Singh possessing the qualification of Post Graduation has been issued appointment letter, whereas Ms. Pearl Sidhu has not been issued the same, which resulted in filing of CWP No. 11047 of 2010 by her, challenging the appointment and selection of all the candidates in pursuance to the advertisement dated 22.5.2009 to the post of Assistant Town Planner. It has been asserted that the petitioner is eligible for appointment to the post in question having scored higher marks than many of the general category candidates and being placed at Serial No. 1 in the Ex-serviceman category. It has further been asserted that she (Ms. Pearl Sidhu) being eligible, as per the Statutory Rules, should be issued the appointment letter and non-issuance of the same by the respondent-department is violative of the judgment of the Hon’ble Supreme Court in Rajesh Kumar Daria Versus Rajasthan Public Service Commission and others, AIR 2007 SC 3127, which lays down the principle of horizontal reservation and the operation of the said principle has been explained therein. It has further been asserted that preferential qualifications as provided in the Statutory Rules would come into effect when on consideration of all the candidates, who are eligible as per the Statutory Rules, have been found to be equal in all respects. When the said position comes into existence, it is then the person with the preferential qualifications would be entitled to be considered prior for appointment, but when a candidate without that preferential qualification, secures higher marks as has been assessed by the selecting authority, the said principle of preferential qualifications will not come into force. In support of this contention, reliance has been placed upon the judgment of the Hon’ble Supreme Court in State of U.P. and another Versus Om Prakash and another, 2006 (6) SCC 474. It has further been asserted that the respondent-department has proceeded to appoint candidates more than the advertised posts, which is not sustainable in the light of the judgment of this Court in Satbir Singh Bura Versus Haryana State Electricity Board, Panchkula, 1996 (1) SCT 437. On this basis, prayer has been made for allowing the writ petition by directing the respondents to appoint her (Ms. Pearl Sidhu) on the post of Assistant Town Planner.
4. In CWP No. 15427 of 2010, petitioner Prince Kaushal is asserting his right for appointment to the post in question on the ground that he possesses the qualification, which has been termed as preferential qualification, for appointment to the post of Assistant Town Planner, but no benefit of the same stands granted to him while considering his candidature for a
