Back
1996 Supreme(All) 746
HIGH COURT OF ALLAHABAD
R.A.Sharma, S.Rafat Alam
SHEO SHANKAR SINGH
Versus
PUBLIC SERVICE COMMISSION U P ALLAHABAD
Decided On : 08 July 1996
Civil Misc. Writ Petition No. 1291 of 1996
V.M.SAHAI, Yar Mohammad,
Reservation in favor of ex-servicemen under Article 16(1) of the Constitution cannot be divided or allocated on the basis of the castes of the ex-servicemen.
Headnote:
PUBLIC SERVICE COMMISSION - RESERVATION FOR EX-SERVICEMEN - DIVISION OF VACANCIES ON CASTE BASIS - NOT PERMISSIBLE - U. P. PUBLIC SERVICES (RESERVATION FOR PHYSICALLY HANDICAPPED DEPENDANTS OF FREEDOM FIGHTERS AND EX-SERVICEMEN) ACT, 1993 (U. P. ACT NO. 4 OF 1993), SECTION 3.
Fact of the Case:
Petitioner, an ex-serviceman, applied for the Combined State/Upper Subordinate Services Examination under the reserved quota for ex-servicemen. He appeared in the preliminary examination but was not declared successful. He challenged the division of reserved vacancies for ex-servicemen on the basis of caste, arguing that all ex-servicemen should be treated as one class and considered against all vacancies reserved for them.
Finding of the Court:
The court held that the division of vacancies reserved for ex-servicemen on the basis of caste was not permissible. It held that reservation in favor of ex-servicemen falls under Article 16(1) of the Constitution, which is different from the reservation provided for Scheduled Castes, Scheduled Tribes, and other Backward Classes under Article 16(4). The court held that considerations and the basis of reservation under Article 16(1) are different from what is contained in Article 16(4), and posts reserved for ex-servicemen cannot be distributed, divided, or allocated on the basis of the castes of the ex-servicemen.
Issues: Whether the division of vacancies reserved for ex-servicemen on the basis of caste was permissible.
Ratio Decidendi: The court relied on the Supreme Court decision in Indra Sawhney v. Union of India, which held that reservations in favor of Scheduled Castes, Scheduled Tribes, and other Backward Classes under Article 16(4) are vertical reservations, whereas reservations in favor of physically handicapped under Article 16(1) are horizontal reservations. The court held that horizontal reservations cut across the vertical reservations and that persons selected against the quota of physically handicapped are to be placed in the appropriate category to which they belong.
Final Decision: The court allowed the petition, quashed the order dividing the vacancies reserved for ex-servicemen on the basis of caste, and directed the Commission to consider the petitioner's claim along with the claims of other candidates against all three reserved vacancies on merit.
Public Service Commission, U. P. Allahabad (hereinafter referred to as the Commission) issued an advertisement notify ing 375 vacancies (likely to increase or decrease) for the Combined State/ Upper Subordinate Services. One per cent of the posts advertised were reserved for ex-Servicemen. Petitioner, being an ex-Serviceman, made an application pursuant to the said advertisement against the reserved quota of the Ex-Servicemen, petitioner appeared in the preliminary examination but was not declared
successful. Being aggrieved, he has filed this writ petition for writ of mandamus, directing the Commission to admit him to the Com bined State/upper Subordinate Services (main) examination, 1994, com mencing from 29-6-1996. Consequential and incidental prayers in connection therewith have also been made. Petitioner has moved an application for amendment of the writ petition, which has been allowed by us.
2. The commission has filed counter-affidavit and has also produced the original relevant record before the Court. We have heard the learned counsel for the parties.
3. The U. P. Public Services (Reservation for Physically Handi capped Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 (U. P. Act No. 4 of 1993) (hereinafter referred to as the 1993 Act) provides for reservation of five per cent vacancies in the Public services and the post in connection with the affairs of the State at the stage of direct recruit ment in favour of physically handicapped, dependants of freedom fighters and ex-servicemen. Section 3 of the said Act, being relevant is reproduced below :
"3. Reservation of vacancies in favour of physically handicapped etc.- (1) In public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacan cies at the stage of direct recruitment in favour of-
(i) physically handicapped,
(ii) dependents of freedom fighters, and
(iii) ex-servicemen.
(1) The respective quota of the categories specified in sub-section (2) shall be such as the State Government may, from time to time, determine by a notified order.
(3) The persons selected against the vacancies reserved under sub section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Caste category, he will be placed In that quota by making necessary adjustments, if he belongs to
Scheduled Tribes category, he will be placed in that quota by making necessary adjustments if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly the belongs to open competition category, he will be placed in category by making necessary adjustments.
(4) For the purposes of sub-section (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be;
Provided that at no point of time the reservation shall, in the entire strength of cadre or service, as the case may be, exceed the quota determine for respective categories.
(5) The vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment. "
4. Section 2, which is a definition clause, defined the ex-servicemen as under :
"2 (x) "ex-servicemen" means a person who has served in any rank, as a combatant or non-combatant, in the Indian Army, Navy, or Air Force, and-
(i) has retired from such service after earning his pension, or (ii) has been released from service on medical grounds, in accordance with requirements of such service or because of circumstances beyond his control and has been granted medical or disability pension, or
(iii) has been released otherwise than on his own request, as a consequence of reduction in the establishment of such service, or!
(iv) has been released from such service after fixed specified period, but has not been released on his own request or has not been dismissed or discharged on account of miscon duct inefficiency and has b
