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2010 (2) UAD 378
UTTARAKHAND HIGH COURT
Hon’ble Dr. Justice B.S. Chauhan and Hon’ble Mr. Justice Swatanter Kumar
Civil Appeal No. 5987 of 2007
WITH Civil Appeal No. 5982 of 2007
PUBLIC SERVICE COMMISSION, UTTARANCHAL – Appellant
Versus
MAMTA BISHT & ORS. – Respondents
Decided on : 03.06.2010
(B) Constitution of India, 1950, Art. 226, C.P.C., 1908, Sec. 141, Or. I, R. 9 — Necessary parties — If a person who is likely to suffer from the order of the Court and has not been impleaded as a party, has a right to ignore the said order as it has been passed in violation of the principles of natural justice — More so, proviso to Order I, Rule IX of Civil Code, provide that nonjoinder of necessary party be fatal — Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable — It has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties. (Paras 7, 8)
(C) Constitution of India, 1950, Arts. 15(3), 16(1) and 16(4) — 'Vertical reservation' and 'horizontal reservation' — Difference between — Nature of social reservations in favour of SC, ST and OBC u/Art 16(4) are vertical reservations — Special reservations in favour of physically handicapped, women etc., u/Art 16(1) or 15(3) are "horizontal reservations" — Where a vertical reservation is made in favour of a Backward Class u/Art. 16(4), the candidates belonging to such Backward Class, may compete for nonreserved posts — And if they are appointed to the nonreserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Classes — 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 that the reservation quota for SCs has been filled — 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 to merit — And then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste 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 being not in consonance with law laid down by the Apex Court in AIR 2007 SC 3127 — Judgment and order impugned, liable to be set aside. (Para 10 to 14)
¼v½ lfoZl dk ekeyk & [kkyh inksa dk Hkjk tkuk & U;k; dk ;g izfrikfnr fl)kUr gS fd foKkfir inksa dh l[a;k ls vf/kd inksa dks ugha Hkjk tk ldrk & ,d ckj tc lHkh inksa dks Hkj fy;k tkrk gS rks fu;qfDr dh izfd;k lekIr gks tkrh gS & ml n'kk esa ;fn dksbZ vH;kFkhZ dk;ZHkkj laHkkyus ds ckn R;kxi= nsrk gS vFkok ej tkrk gS bl izdkj ls tks in fjDr gks tk, rks og mlh iSuy ls ugha Hkjk tk ldrk tks igys gh lekIr gks pqdk FkkA ¼izLrj 6½
¼c½ Hkkjrh; lafo/kku] 1950] vuqPNsn 226] nhokuh izfd;k lafgrk] 1908] /kkjk 141] vkns'k 1] fu;e 9 & visf{kr i{kdkj & ;fn dksbZ O;fDr U;k;ky; ds vkns'k ls izHkkfor gksrk gS vkSj ,d i{kdkj dh gSfl;r ls okn esa ;ksftr ugha fd;k gS rks mls mDr vkns'k dh vogsyuk djus dk vf/kdkj gS tSls fd og izkdfrd U;k; ds fl)kUrksa ds foijhr ikfjr fd;k x;k gks & bl ls Hkh vf/kd vkns'k 1] fu;e 9 lh-ih-lh- ds izkfo/kku ds vuqlkj visf{kr i{kdkj ds mifLFkr u gksus ls gkfu gks ldrh gS & fulansg gh lh-ih-lh- ds izkfo/kku fjV ds dk;Z{ks= ij ykxw ugha gksrs tSlk fd /kkjk 141 lh-ih-lh- esa izkfo/kku fd;k x;k gS ijUrq ml esa fufgr fl)kUr ykxw gksrs gSa & fu.kZ; esa dgk x;k gS ;fn dksbZ O;fDr fu;qfDr izfd;k dks pqukSrh nsrk gS rks lQy vH;kFkhZ vFkok muesa ls dksbZ Hkh &visf{kr i{kdkj gSA ¼izLrj 7] 8½
¼l½ Hkkjrh; lafo/kku] 1950] vuqPNsn 15¼3½] 16¼1½ vkSj 16¼4½ & ofVZdy fjtosZ'ku vkSj gkfjtsUVy fjtosZ'ku dk vUrj & lkekftd fjtosZ'ku SC, ST vkSj OBC ds fgr esa lafo/kku ds vuqPNsn 16¼4½ ds vUrxZr ofVZdy fjtosZ'ku dgk tkrk gS vkSj 'kkjhfjd :i ls viax ¼fodykax½ L=h iq#"kksa ds fgr esa vuqPNsn 16¼1½ o 15¼3½ ds vuqlkj fo'ks"k fjtosZ'ku ¼vkj{k.k½ dks gkfjtsUVy fjtosZ'ku dgk tkrk gS tc dksbZ ofVZdy fjtosZ'ku vuqPNsn 16¼4½ ds vUrxZr fiNM+h tkfr ds fgr esa fn;k tkrk gS rks ,slh tkfr ds vH;fFkZ;ksa dks vukjf{kr inksa ds fo#) Hkh Li/kkZ esa vkus dk vfèkdkj gS & vkSj ;fn mudh fu;qfDr vukjf{kr inksa ij viuh gh ;ksX;rk ds vk/kkj ij gks tkrh gS rks mu dk uEcj lEc) fiNM+h tkfr ds vkjf{kr dksVs ds fo#) ugha fxuk tk,xk & blfy, SC vH;fFkZ;ksa dh la[;k tks viuh ;ksX;rk ds vk/kkj ij [kqyh LièkkZ esa inksa ij pqu fy;s tkrs gSa vkSj SC vH;fFkZ;ksa dh vkjf{kr inksa dh izfr'kr ds cjkcj gks tkrs gSa vFkok c<+ tkrs gSa rks ;g ugha dgk tk ldrk fd SC dk vkjf{kr dksVk iw.kZ gks x;k gS & ijUrq mijksDr ofVZdy ¼lkekftd½ vkj{k.k dk mijksDr fl)kUr gkfjtsUVy ¼fo'ks"k½ vkj{k.k ij ykxw ugha gksxk & tgk¡ ij efgykvksa ds okLrs fo'ks"k vkj{k.k] SC ds lkekftd vkj{k.k ds vUrxZr gS rks mfpr izfd;k ;g gS fd igys esfjV ds vuqlkj SC ds vkj{k.k dk dksVk iw.kZ fd;k tk, vkSj fQj SC efgyk ds Lis'ky xzqi dh vH;kfFkZ;ksa dh la[;k ekywe dh tkrh gS & ;fn ,slh lwph esa efgykvksa dh la[;k Lis'ky fjtosZ'ku dksVk ls vf/kd gS vFkok cjkcj gS rc Lis'ky fjtosZ'ku dksVk ds vUrxZr dksbZ flysD'ku fd;s tkus dh vko';drk ugha gS & dsoy ml n'kk esa tc] deh gks rks SC efgyk dh visf{kr la[;k SC vH;fFkZ;ksa ls lEcfUèkr lwph esa uhps ls mrus gh vH;fFkZ;ksa dks fujLr djrs gq, yh tk,xh & gkfjtsUVy ¼Lis'ky½ vkj{k.k ofVZdy ¼lksf'k;y½ vkj{k.k ls bl lhek rd i`Fkd gS & bl izdkj ;ksX;rk ds vk/kkj ij ofVZdy fjtosZ'ku ds rgr efgykvksa dh x.kuk gkfjtsUVy vkj{k.k ds rgr mPpre U;k;ky; ds fu.kZ; AIR 2007 SC 3127 ds vuqlkj u gksus ds dkj.k iz'uxr fu.kZ; [kf.Mr gksus ;ksX; gSA ¼izLrj 10 ls 14½
[Per : Hon’ble Dr. B.S. Chauhan, J.]
1. These appeals have been preferred by the Public Service Commission and the State Government of Uttaranchal being aggrieved of the judgment and order of the High Court of Uttaranchal, Nainital dated 26.10.2006 allowing the Writ Petition No. 780 of 2003 (M/B) and directing the present appellants to appoint respondent No. 1 – Ms. Mamta Bisht as Civil Judge, Junior Division in the State of Uttaranchal.
2. Facts and circumstances giving rise to these appeals are that Public Service Commission, Uttaranchal (hereinafter referred to as the ‘Commission’) issued an advertisement dated 7.6.2002 inviting applications for 35 posts of Civil Judge, (Junior Division) with a stipulation that the number of vacancies may be increased or decreased. It clarified that the reservation policy adopted by the State i.e. reservation in favour of SC/ST/OBC and horizontal reservation in favour of handicapped, and women etc. belonging to Uttaranchal would be applicable. Respondent No.1 applied in pursuance of the said advertisement seeking benefit of reservation in favour of Uttaranchal women. She qualified in the written examination and thus faced the interview held by the Commission. The final result of the selection was declared on 31.7.2003 and it was evident from the result that respondent No. 1 was not selected. Instead of filling of 35 vacancies, recommendations to fill up 42 vacancies were made as the decision had been taken in this regard prior to declaration of result. Out of 42 posts, 26 were filled up by General category and 16 by reserved category candidates. Some women candidates stood selected in general category while others had been given the benefit of horizontal reservation being resident of Uttaranchal. Respondent No. 1, being aggrieved preferred Writ Petition No. 780 of 2003 (M/B) in the High Court of Uttaranchal seeking quashment of selected list dated 31`.7.2003 mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in general category and had it been done so, respondent No. 1 could have been selected in reserved category being a woman of Uttaranchal. It had also been pleaded in the petition that some of the women candidates who not only claimed the benefit of horizontal reservation but have been selected giving the said benefit, did not submit their respective certificate of domicile at the time of filling up the application forms but they produced the said certificate at a later stage and it was accepted. The High Court accepted the first submission of respondent No. 1 after examining the record of selection and came to the conclusion that last selected woman candidate who was given benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in general category. Thus, the said candidate ought to have been appointed against the general category vacancy and respondent No. 1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women. Hence, these appeals.
3. Shri S.S. Shamshery, Advocate appearing for the Commission and Shri Ashok Mahajan, Advocate appearing for the High Court have submitted that all the vacancies advertised had already been filled up before the writ petition could be filed. Not a single successful candidate had been impleaded as a respondent before the High Court. Thus, the petition ought to have been dismissed for not impleading the necessary parties. The High Court did not consider the issue of acceptance of domicile certificates by the Uttaranchal women at a belated stage nor any finding has been recorded on the said issue. The High Court failed to consider the principle that if a reserved category candidate secures more marks than the last selected candidate in general category, then he is to be appointed against the general category vacancy, does not apply while giving the benefit of horizon
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