Paroksh Kumar Sen vs State of Madhya

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 175

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Agarwal, J.
Paroksh Kumar Sen & Others v. The State of Madhya
Pradesh & Others
Writ Petitions No. 9097 of 2022, 9253 of 2022, 9948 of 2022, 10833 of 2022, 26770 of 2022, 27041 of 2022, 27794 of 2022, 27854 of 2022, 28161 of 2022 and 28772 of 2022 (Jabalpur); Decided on 4.4.2024

Advocates:
Narinder Pal Singh Ruprah, Dinesh Singh Chauhan for
respective petitioners; Manas Mani Verma, Government Advocate
for respondents/State; Rahul Diwakar with Aman Gupta for respondent/Board

Headnote:
(1) Reservation -- cannot be sought as a matter of right. (2017) 3 SCC 504 and (2009) 5 SCC 1 followed. [Para 23]
(2) Reservation -- post meant for horizontal reservation cannot be carried forward. (2021) 4 SCC 542 followed. [Para 25]
(3) Ex-servicemen (Reservation of Vacancies in the State Civil Services and Posts Class III and Class IV) Rules, 1985 (M. P.) -- R. 4(3) -- whether provisions of Rules of 1985 will be deemed to be illegally repealed by virtue of information brochure issued by Employees Selection Board while publishing rules for conduct of examination -- held -- this Rule has no application for filling up of vacancy on basis of open competitive examination -- there is no implied repeal nor conflict in scheme of examination floated by Employees Selection Board and Rules of 1985. (2003) 12 SCC 274 and (2014) 12 SCC 65 distinguished. [Paras 26 & 27]
(4) Civil Services -- appointment -- reservation -- horizontal reservation -- scheme of examination is crystal clear that candidates in ratio of five times the number of posts are to be called for in terms of each vertical compartment and then, from amongst those, horizontal reservation posts are to be filled -- merit could not have been diluted by either diluting benchmark requirement or extending list so as to accommodate five times candidates from each horizontal category -- candidates are required to be called for second round of selection in prescribed ratio only in terms of vertical categories and not in terms of horizontal reservation categories -- as per undertaking, none of the candidates recommended for appointment secured lesser marks than petitioners in first round of examination -- posts meant for ex-servicemen or women under horizontal reservation cannot be subjected to carry forward merely because sufficient number of women/ex-servicemen candidates did not qualify under scheme of calling five times the number of candidates for which posts were advertised in each group under vertical reservation categories. (2021) 4 SCC 542 followed. 2022 SCC Online SC 1570, Writ Petition No. 8757 of 2022 decided on 26.4.2022 and Writ Appeal No. 2736 of 2016 decided on 27.11.2016 (All.) referred to. [Paras 28 & 29]
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¼2½ vkj{k.k & {kSfrth; vkj{k.k ds fy, vk'kf;r in dks vkxs ugha cढ+k;k tk ldrkA ¼2021½ 4 ,llhlh 542 vuqlfjrA ¼iSjk 25½
¼3½ HkwriwoZ lSfud ¼jkT; dh flfoy lsokvksa rFkk inksa] r`rh; Js.kh vkSj prqFkZ Js.kh esa fjfä;ksa dk vkj{k.k½ fu;e ¼e-ç-½ 1985 & fu- 4¼3½ & ijh{kk ds lapkyu ds fy, fu;e çdkf'kr djrs le; deZpkjh p;u eaMy }kjk tkjh dh xbZ tkudkjh foojf.kdk ds lu~ 1985 ds fu;eksa ds mica/k voS/k :i ls fujflr le>s tk,¡xs ;k ugha & vfHkfu/kkZfjr & [kqyh çfr;ksxh ijh{kk ds vk/kkj ij fjfä Hkjus ij ;g fu;e ykxw ugha gksrs & deZpkjh p;u eaMy }kjk dk;kZfUor ijh{kk ;kstuk rFkk lu~ 1985 ds fu;eksa esa dksbZ foosf{kr fujlu ;k fojks/kkHkkl ughaA ¼2003½ 12 ,llhlh 274 rFkk ¼2014½ 12 ,llhlh 65 çHksfnrA ¼iSjk 26 ,oa 27½
¼4½ flfoy lsok & fu;qfä & vkj{k.k & {kSfrth; vkj{k.k & ijh{kk ;kstuk esa Li"V gS fd çR;sd Å/oZ oxZ ds vuqlkj inksa ds ik¡p xq.kk ds vuqikr esa vH;FkhZx.k cqyk, tkuk gaS vkSj fQj] muesa ls] {kSfrth; vkj{k.k inksa dks Hkjk tkuk gS & çR;sd {kSfrth; oxZ ls ik¡p xq.kk vH;FkhZx.k dks LFkku nsus ds fy, ekud vis{kk f'kfFky djds ;k fQj lwph foLr`r djds ;ksX;rk dks de ugha fd;k tk ldrk Fkk & p;u ds f}rh; nkSj esa vH;FkhZx.k dks Å/oZ oxks± ds vuqlkj fofgr vuqikr esa gh cqyk;k tkuk visf{kr gS] {kSfrth; vkj{k.k oxksZa ds vuqlkj ugha & opui= ds vuqlkj] fu;qfä ds fy, ftu vH;FkhZx.k dh flQkfj'k dh xbZ muesa ls fdlh us Hkh ijh{kk ds çFke nkSj esa ;kphx.k ls de vad çkIr ugha fd, & {kSfrth; vkj{k.k ds v/khu HkwriwoZ lSfud ;k efgykvksa ds fy, vk'kf;r in ek= blfy, vkxs cढ+k, ugha tk ldrs fd Å/oZ vkj{k.k oxks± ds v/khu çR;sd lewg esa ftu inksa ds fy, foKkiu fn;k x;k Fkk muds fy, vH;FkhZx.k dh la[;k ds ik¡p xq.kk vH;FkhZx.k dks cqykus dh ;kstuk ds v/khu i;kZIr la[;k esa efgyk@HkwriwoZ lSfud vH;FkhZx.k us vgZrk çkIr ugha dhA ¼2021½ 4 ,llhlh 542 vuqlfjrA 2022 ,llhlh v‚uykbu ,llh 1570] fjV ;kfpdk Ø- 8757 lu~ 2022 fu.khZr fnukad 26-4-2022 rFkk fjV vihy Ø- 2736 lu~ 2016 fu.khZr fnukad 27-11-2016 ¼byk-½ fufnZ"VA ¼iSjk 28 ,oa 29½

ORDER

1. This bunch of petitions are filed by two-set of petitioners challenging the Police Constable Recruitment Test, 2020, alleging that while making such recruitment, horizontal compartment wise reservation policy has not been implemented for the Ex-servicemen and similarly, in another set of petitions, it is alleged that posts which were meant for women constables for which advertisement was issued, at least five times of the women candidates should have been called for the second round of selection but, in place of calling five times the number of posts reserved for women under each of the categories meant for vertical reservation, a common list of selection was issued causing inequal treatment to the women candidates.

2. Shri Narinder Pal Singh Ruprah and Shri Dinesh Singh Chauhan, learned counsel for the petitioners have placed reliance on the judgment of the Hon'ble Supreme Court in Cdr Amit Kumar Sharma v. Union of India and others, 2022 SCC Online SC 1570, to point out that respondents have not disclosed the cut-off marks under each of the categories and the non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority, sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy.

3. Reliance is placed on the provisions contained in Madhya Pradesh Exservicemen (Reservation of Vacancies in the State Civil Services and Posts Class III and Class IV) Rules, 1985 (for brevity, ''Rules of 1985'') to submit that that sub-rule (3) of Rule 4, which deals with the reservation of vacancies provides as under :--

''4(3) No vacancy reserved for Ex-servicemen in a post to be filled otherwise than on the results of an open competition examination, shall be filled by the appointing authority by any general candidate, until and unless said authority--

(i) has obtained a ''Non-availability Certificate'' from the Employment Exchange (Where a requisition is placed on an Employment Exchange);

(ii) has verified the non-availability of a suitable candidate by reference to the Director General, Resettlement and recorded a certificate to that effect; and

(iii) has obtained approval of the State Government.''

4. Therefore, it is submitted that the posts which were meant for Exservicemen could not have been diverted to the General category candidates or the candidates of different categories where the horizontal reservation for Exservicemen is provided.

5. Reliance is also placed on the judgment of Hon'ble Supreme Court in Security Association of India and another v. Union of India and others, (2014) 12 SCC 65 and reading first two lines of para 51 of the said judgment, it is submitted that Hon'ble Supreme Court has held that ''It is evident from the above that the subject-matters of the two acts are substantially different and the conflict in the operation of the two Acts is incidental.''

6. Thus, it is pointed out that even if reservation in promotion or the scheme of recruitment provides for not carrying forward the post meant for women candidates or for Ex-servicemen but, in case of Ex-servicemen in view of the provisions contained in sub-rule (3) of Rule 4 of the Rules of 1985, there could not have been any denial of carry forward of the vacancies meant for Exservicemen and they should have been left vacant to be filled from amongst Exservicemen only.

7. It is further submitted that if suff