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2010 (2) UAD 614
SUPREME COURT OF INDIA
Hon’ble Dr. Justice B.S. Chauhan and Mr. Justice Swatanter Kumar
(Vacation Bench)
Civil Appeal No. 5987 of 2007
PUBLIC SERVICE COMMISSION, UTTARANCHAL – Appellant
Versus
MAMTA BISHT & ORS. – Respondents
WITH
Civil Appeal No. 5982 of 2007
STATE OF UTTARANCHAL – Appellant
Versus
MAMTA BISHT & ORS. – Respondents
Decided on : 03.06.2010
(Para 6)
(B) Civil Procedure Code, 1908, Or. 1, R. 9 — Necessary party, proper party and proforma party — Distinction between — Writ jurisdiction — Held that if a person who is likely to suffer from the order of the Court and had 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 Or. 1, R IX of C.P.C. 1908 provided that non-joinder of necessary party be fatal. (Paras 7, 8)
(C) Constitution of India, 1950, Art. 226, Civil Procedure Code, 1908, Sec. 141 — Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Sec. 141 CPC but the principles enshrined therein are applicable — AIR 1765 SC 1153, AIR 1974 SC 2105, AIR 1987 SC 88 relied on. (Para 9)
(D) Terms & Expressions — Vertical reservation and Horizontal reservation — Difference between — Nature of — Social reservations in favour of SC, ST and OBC under Art 16(4) are "vertical reservations" — Special reservations in favour of physically handicapped, women, etc., under Art 16(1) or 15(3) are "horizontal reservations" — 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 — The entire reservation quota will be intact and available in addition to those selected under open competition category — But 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 S.C. in order of merit and then find out the nmber of candidates among them who belong to the special reservation group of S.C. 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 — Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.
(Para 13)
¼v½ O;ogkj vkSj izfd;k & ;g fof/k dk izfrikfnr fl)kUr gS fd foKkfir fjfDr;ksa ls vf/kd fjfDr;ksa dh iwfrZ ugha dh tk ldrh & tc ,d ckj lHkh fjfDr;ka Hkj yh tkrh gSa rks pquko izfd;k lekIr gks tkrh gS & ml n'kk esa tc dksbZ pquk gqvk vH;FkhZ dk;ZHkkj laHkkyus ds i'pkr~ R;kxi= ns nsrk gS vFkok ej tkrk gS rks bl izdkj fjfDr gks tkus ij mls mlh iSuy }kjk ugha Hkjk tk ldrk tks lekIr gks pqdk Fkk & AIR 2010 SC 932 ij vk/kkfjrA ¼izLrj 6½
¼c½ nhokuh izfd;k lafagark] 1908] vkns'k 1] fu;e 9 & visf{kr i{kdkj] mfpr i{kdkj vkSj vkSipkfjd i{kdkj dk foHksn & ;kfpdk dk dk;Z{ks= & fu.kZ; esa dgk x;k fd ;fn dksbZ O;fDr U;k;ky; ds vkns'k ls {kfrxzLr gksus okyk gks vkSj mls okn esa i{kdkj u cuk;k x;k gks rks mls mDr vkns'k dks vuns[kk djus dk vf/kdkj gS ih MCY;w fd og izkdfrd U;k; ds fl)kUrksa dh vogsyuk djds ikfjr fd;k x;k Fkk & vkns'k 1] fu;e 9 lhihlh 1908] esa izkfo/kkfur gS fd visf{kr i{kdkj dk uku TokabMj gkfudkjd gks tk,xkA ¼izLrj 7] 8½
¼l½ Hkkjrh; lafo/kku] 1950] vuqPNsn 226] nhokuh izfd;k lafgrk] 1908] /kkjk 141 & fu%lansg gh /kkjk 141 CPC ds vk/kkj ij nhokuh izfd;k lafgrk ds izkfo/kku fjV ;kfpdk ds dk;Z{ks= esa ykxw ugha gksrs ih MCY;w fd ml esa fufgr ¼iznRr½ fl)kUr gh ykxw gksrs gSa & AIR 1765 SC 1153; AIR 1974 SC 2105; AIR 1987 SC 88 ij vk/kkfjrA
¼izLrj 9½
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Dr. B.S. Chauhan, J. – 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 26.10.2005 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 select 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 N. 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 horizontal reservation. The wr
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