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2013 Supreme(MP) 1261
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
Sanjay Yadav, J.
Sunita Thakre - Appellant
Versus
State of M.P. and Others - Respondent
W.P. No. 18023 of 2013
Decided On : 23-10-2013
For the Appellant : Ashish Trivedi
For the Respondents:S.S. Bisen, Government Advocate for State of M.P.
Horizontal reservation for women candidates of all categories does not allow migration of candidates to the General Category based on higher marks.
Headnote:
Reservation - Recruitment - Madhya Pradesh Civil Services (Special Provisions for Appointment of Women) Rules, 1997 - Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan-Jatiyon Aur Annya Picchade Vargon Ke Liye Arakshan) Adhiniyam, 1994 - Indra Sawhney vs. Union of India, 1992 Supp. (3) SCC 217 - Rajesh Kumar Daria vs. Rajasthan Public Service Commission, AIR 2007 SC 3127
Fact of the Case:
The case involved the recruitment of Ayush Medical Officers in Madhya Pradesh, with specific reservation for female candidates and different categories. The petitioner, an OBC candidate, sought adjustment against the General Category seat based on higher marks obtained by OBC female candidates.
Finding of the Court:
The court held that under the Madhya Pradesh Civil Services Rules and the Madhya Pradesh Lok Seva Adhiniyam, horizontal reservation for women candidates of all categories does not allow migration of candidates to the General Category based on higher marks.
Issues: The main issue was whether OBC candidates, despite obtaining higher marks than General Category candidates, could seek migration to General Category posts under the reservation rules.
Ratio Decidendi: The court relied on the interpretation of horizontal reservation in Indra Sawhney vs. Union of India and Rajesh Kumar Daria vs. Rajasthan Public Service Commission to conclude that candidates under horizontal reservation cannot migrate to other categories based on merit.
Final Decision: The petition was dismissed, and the court declined to grant the mandamus sought for adjusting the petitioner against the General Category seat.
JUDGMENT
Sanjay Yadav, J.:-
Shri Ashish Trivedi, learned counsel for the petitioner.
Shri S.S. Bisen, learned Government Advocate for the respondent-State of M.P. on advance notice.
Heard.
Public Health and Family Department, Government of Madhya Pradesh invited applications for recruitment of 1252 contract posts of Ayush Medical Officers under National Rural Health Mission. Of these, 626 posts were earmarked in favour of female candidates. These 1252 posts were further earmarked for Ayurved Medical Officer (45% = 564 posts), Homoeopathy Medical Officer (45% = 564 posts) and Unani Medical Officer (10% = 124 posts). As per roster, posts of Homoeopathy Medical Officer (presently we are concerned with the Homoeopathy Medical Officer) was reserved as under:--
2. Homoeopathy Medical Officer: Total posts 564
3. Petitioner applied against the post earmarked for Other Backward Class.
4. Examination was held on 4-8-2013. Results whereof were declared on 19-9-2013.
5. Petitioner obtained 2222 rank with score of 49.
6. That, category wise cut off list was published with open rank and close rank. For OBC female nil class candidates, the open and close rank were 1057 and 2202. The district cut off for Balaghat for female candidate was 52 and 8766 open and close rank respectively.
7. That, category wise marks cut off was also declared with maximum marks and minimum marks for OBC female unreserved as 60 and 49 respectively and the corresponding cut off marks of District Balaghat in the petitioner's category was 82 (maximum) and 27 (minimum).
8. The category wise cut off list and category wise marks cut-off for female OBC nil class is depicted hereunder--
9. That, category wise cut off and category wise cut off marks for unreserved female were 563 (open rank) and 2702 (close rank) and 68 (maximum marks) and 47 (minimum marks).
10. Petitioner with 2222 rank with score of 49 raised the grievance that instead of accommodating the petitioner (though OBC) in General Category, the candidates below the rank of petitioner and receiving less marks than the petitioner are being selected in General Category.
11. Contention on behalf of petitioner is that as per Rule 3 of Madhya Pradesh Civil Services (Special Provisions for Appointment of Women) Rules, 1997, thirty per cent of the total post in service is to be reserved in favour of women and the said reservation is horizontal and compartment wise. That being so, it is contended that since marks obtained by the female candidates are higher than those belonging to General Category incumbent, it was upon the respondents to have considered such OBC Female Candidates obtaining more marks than the last female candidate of General Class for appointment in General Category.
12. The Rules of 1997 which are being referred to are framed in exercise of the power conferred by the proviso to Article 309 of the Constitution of India. Rule 2 whereof stipulates that "without prejudice to the generality of the provisions contained in any service rules, these rules shall apply to all persons to public service and posts in connection with the affairs of the State. Meaning thereby that the provisions of 1997 Rules will not affect the operation of other Rules (See Standard Chartered Bank vs. Director of Enforcement, (2006) 4 SCC 278 Paragraphs 21 and 22). In other words, the mechanism for implementing the reservation clause has to be in consistent with the provisions of the M.P. Lok Seva (Anusuchit Jatiyon, Anusuchit Jan-Jatiyon Aur Annya Picchade Vargon Ke Liye Arakshan) Adhiniyam, 1994, which is an Act to provide for the reservation of vacancies in public services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens and for matters connected therewith or incidental thereto.
13. Sub-section (2) of section 4 of Adhiniyam, 1994 stipulates the percentage of posts reserved in service in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and other Backwa
