RAJESH KUMAR DARIA v. RAJASTHAN PUBLIC SERVICE COMMISSION AND ORS

Citation: [2007] 8 S.C.R. 972

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, R.V. RAVEENDRAN, DALVEER BHANDARI

Case summary

RAJESH KUMAR DARIA v. RAJASTHAN PUBLIC SERVICE COMMISSION AND ORS.pdf

Judgment text

RAJESH KUMAR DARIA v. RAJASTIIAN PUBLIC SERVICE COMMISSION AND ORS. JULY 18, 2007 [K. G. BALAKRISHNAN, CJ. , R. V. RAVEENDRAN AND DALVEER BHANDARI, JJ. ] Service Law: Constitution of India, 1950; Articles 15 and 16/Rajasthan Judicial Service Rules, 1955; R. 9(3): Judicial Service-Appointment/selection ofwomen candidates in excess of reservation quota-Challenge to--Dismissed by High Court-On appeal, Held: Social reservation in favour ofSC, ST and OBC categories as provided in terms ofArticle 16(4) ofthe Constitution are vertical reservation, however, special reservation in favour of physically handicapped women etc.

as provided under Articles 16(1) and 15(3) are horizontal reservation- Principle applicable to vertical reservation could not be applied to horizontal reservation-Women candidates selected on merit within the vertical reservation quota would be counted against the horizontal reservation quota for women-Respondent-Commission selected women candidate in excess of quota reserved for them by flouting the principle of horizontal reservation depriving selection of male candidates in their respective categories-Since the candidates so selected have been serving as Judicial Officers for more than f IVe years, it would not be appropriate to disturb the selection list/ interfere with the appointment already made-Jn the facts and circumstances ofthe case, only three candidates would have been selected ifthe horizontal reservation policy would have been applied properly-Hence, it is just and proper to accommodate those three candidates-Accordingly, they shall be deemed to be selected by the Commission and their seniority will be counted as indicated in the judgment-Directions issued.

Words and Phrases: 'Horizontal reservation' and 'Vertical reservation'-Distinction between in the context of social vis-a-vis special reservation in the matter of fl 972 RAJESHKUMARDARIA v. RAJASTHAN PUBLICSERVICECOMMISSION 973 appointment-Discussed-Constitution of India, 1950-Artic/es 15 and I6. Appellant-candidates appeared for selection for the posts of Munsiff- Magistrate in the Rajasthan Judicial Service Examination conducted by the Rajasthan Public Service Commission ('RPSC'). They were not selected. They alleged that women candidates selected as a result of this examination were in excess of their reservation quota, contrary to the Reservation Rules. They contended that though the Rules provided for horizontal reservation of 20% for women category-wise. However, RPSC had wrongly applied the principles ofvertical reservation and selected the women candidates in excess of the quota meant for them, thereby denying selection to the eligible male candidates.

They filed a writ petition seeking a declaration that the selection list dated 30. 12. 2001, was bad in law to the extent ofexcess selection ofwomen candidates and for a consequential direction to fill those vacancies with male candidates. The petition was dismissed by the High Court Hence the present appeal Partly allowing the appeals, the Court HELD: 1. 1. Social reservations in favour of SC, ST and OBC under I '. . \- Article 16(4) of the Constitution are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc. , under Articles 16(1) or 15(3) of the constitution are 'horizontal reservations'. Where vertical reservation is made in favour ofa backward class under Article 16(4), the candidates belonging to such backward class, may compete for nonreserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted ~gainst the quota reserved for the respective backward class.

Therefore, if the number ofSC candidates, who by their own merit, get selected against open competition vacancies, ..... equals or even exceeds the percentage of posts reserved for SC candidates, it ' ~ cannot be said 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. (Para 7] (979-A-C] Indira Sawhney v. Union of India, (1992) Suppl. 3 SCC 217; R. K. Sabharwal v. State ofPunjab, (1995) 2 SCC 745, Union ofIndia v. Virpa/ Singh Chauvan, (1995] 6 SCC 684 and Ritesh R Sah v. Dr. Y. L. Yamul, [1996) 3 sec 253, relied on. ....... ,, 1. 2. The principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for ,_ I- ~ y 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 of merit and then find out the number ofcandidates among them who belong to tthe special reservation group of'Scheduled Castes-Women'. Ifthe number of women in such list is equal to or more than the number ofspecial 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 ofcandidates from the bottom of the list relating to Scheduled Castes. -1 ~ :. - To that 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. ! Para 7) 1979-D-F) 2. 1.

In the instant case, the number of candidates to be selected under general category (open competition), were 59, out ofwhich 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 women candidates, which was equal to the quota for 'General Category- Women'. There was thus no need r ' for any further selection of woman candidates under the special reservation -+for women. But what RPSC did was to take only the first 48 candidates in the t order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, it is found that among 59 general category candidates in all 22 women have been selected consisting ofeleven women candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 & 41 of the Selection List) and another eleven (candidates at Sl. Nos.

54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the Selection List) included under reservation quota for 'Gen. era! Category-Women'. This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women i as a vertical reservation, instead of being a horizon. taI reservation within the vertical reservation. ! Para 9) 1980-B-C) 2. 2. In regard to 24 posts for OBC, 19 candidates were selected by RPSC in accordance with merit from among OBC candidates which included three woman candidates. Thereafter, another five women were selected under the category of'OBC - Women', instead of adding only two which was the shortfall. Thus ~here were in all 8 women candidates, among the 24 OBC candidates found in the-Selection List. The proper course was to list 24 OBC candidates as per t~e merit and then find out number of woman candidates among them, RAJESH KUMARDARIAv. RAJASTHAN PUBLIC SERVICECOMMISSION 975 '! " ..

> and only fill the shortfall to make up the quota of five for woman• [Para 10) (980-F-G) 3. 1. The appellants' grievance that the selection process adopted by RPSC was contrary to the reservation policy contained in Rule 9(3) is justified. (Para 11) [980-G-H) 3. 2. On completion ofthe selection process, 97 candidates were appointed ... ~ in the year 2002 and have been serving as Judicial Officers for more than five years. There has also been a subsequent selection and appointments in the year 2005. Further all the selected candidates are not impleaded as parties. Even from among the original ten writ petitioners, only seven are before this Court. On the facts and circumstances, it would not be appropriate to disturb the selection list dated 30. 12. 2001 or interfere with the apppintments already made in pursuance ofit. [Para 11) (980-G-H; 981-A-B) 3. 3.

Even if the selection list had been prepared by applying horizontal reservation properly, only the appellant in this appeal and appellant Nos. 3 and I . ~ 6 in the connected appeal will get selected. The other appellants were not .. eligible to be selected. (Para 11) (981-B-C) ' 3. 4. In view of the above and in view ofavailable vacancies, it is just and proper to accommodate these three candidates in terms of the direction in the judgment without disturbing the selections and appointments already made, to do complete justice. [Para 12) (981-C) CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3132 of2007. From the Final Judgment and Order dated 30. 5. 2003 of the High Court of Judicature for Rajasthan Bench at Jaipur in D. B. Civil Writ Petition No. }. 4150/2002. WITH C. A. No. 3773/2007. L. N. Rao, Shobna, Ajay Verma, G. Arun Deep Verma, A. Mishra for Pratibha Jain for the Appellant. ~ M. R.

Calla, Surya Kant, N;iveen Kumar Singh for Aruneshwar Gupta, Mukesh Sharma for Rameshwar Prasad Goyal, Ansar Ahmad Chaudhary for the Respondents. ,,-~ The Judgment of the Court was delivered by - K. G. BALAKRISHNAN, CJI. Leave Granted. The appellant in this appeal, as also the ~ppellants in the connected appeal, were candidates for selection to the posts of Munsiff - Magistrate, in the Rajasthan Judicial Service. Rajasthan Public Service Commission (for short 'RPSC'), entrusted with the responsibility of selection, issued an advertisement dated 17. 5. 200I inviting applications for filling up 116 vacancies of Munsiff - Magistrates. The details of the vacant posts were shown as L under: Total General Category Posts Reserve Posts No. S. C. ST 0. 8. C. of Posts Men (M) Women(W) M F M F M F 116 48 11 15 4 11 3 19 5 The RPSC conducted the written examination followed by interviews. 261 ,b- -+ ' candidates were successful.

Only 97 of them could be appointed, as some ~ vacancies earmarked for SC and ST categories could not be filled for want of suitable candidates. 2. The appellant in this app~al (Rajesh Kumar Daria) and the third appellant in the connected appeal (Mohan Lal Soni) were OBC candidates. The other five appellants in the connected appeal were general category candidates. They were not selected. According to them, women candidates were selected in excess of their reservation quota, contrary to the Rules. They contended that though the Rules provided for horizontal reservation of 20% for women categorywise, RPSC while preparing the selection list, had wrongly -1 applied the principles of vertical reservation. and had selected women in excess of the quota, thereby denying selection of the appellants and other male candidates. It was contended that they had secured higher marks than the selected women candidates and but for the excess selection of women .

I candidates, they would have been selected. The appellants in these appeals along with some other aggrieved candidates therefore filed W. P. No. 4150/2002 seeking a declaration that the selection list dated 30. 12. 2001, was bad in law i- 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 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. [Vide - Indira Sawhney (Supra), R. K. Sabharwal v. State of Punjab, [1995] 2 SCC 745, Union ofIndia v. Virpal Singh Chauvan, [1995] 6 SCC 684 and Ritesh R. Sah v. Dr. Y. L. Yamu/, [1996] 3 SCC 253]. 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 quot! :! for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-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.

Let us illustrate by an example : If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any •urther SC women candidate. On the other hand, if the list of ~. ,. , 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC , candidates contain four women SC candidates.

[But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four. ] 9. In this case, the number of candidates to be selected under general category (open competition), were 59, out of which 11 were earmarked for women. When the first 59 from among the 261 successful candidates were taken and listed as per merit, it contained 11 women candidates, which was equal to the quota for 'General Category - Women'. There was thus no need for any further selection of woman candidates under the special reservation for women. Bet what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates.

As a result, we find that among 59 general category candidates in all 22 women have been selected consisting ofeleven women candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 & 41 ofthe Selection List) and another eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 & 80 of the Selection List) included under reservation quota for 'General Category-Women'. This is clearly impermissible. The process ofselections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation. IO. Similarly, we find that in regard to 24 posts for OBC, 19 candidates were selected by RPSC in accordance with merit from among OBC candidates which included three woman candidates. Thereafter, another five women were p selected under. the category of 'OBC - Women', instead of adding only two which was the shortfall.

Thus there were in all 8 women candidates, among the 24 OBC candidates found in the Selection List. The proper course was to list 24 OBC candidates as per the merit and then find out number ofwoman candidates among them, and only fill the shortfall to make up the quota of five for woman. 11. The appellants' grievance that the selection process adopted by RPSC was contrary to the reservations policy contained in Rule 9(3) is justified. But the question is whether the entire selection should be set aside and whether all appellants should be granted relief. On completion ofthe selection . r process, 97 candidates were appointed in the year 2002 and have been I RAJESH KUMARDA. RIA v. RAJASTHANPUBLIC SERVICECOMMISSION [BALAKRISHNAN, CJ. ) 98} serving as Judicial Officers for more than five years. There has also been a subsequent selection and appointments in the year 2005. Further all the selected candidates are not impleaded as parties.

Even from among the original ten writ petitioners, only seven are before us. On the facts and circumstances, we do not propose to disturb the selection list dated 30. 12. 2001 or interfere with the appointments already made in pursuance ofit. We will only consider whether the appellants before us are entitled to relief. We find that even if the selection list had been prepared by applying horizontal reservation properly, only the appellant (Rajesh Kumar Daria) in this appeal, and appellant Nos. 3 and 6 in the connected appeal (Mohan Lal Soni and Sunil Kumar Gupta) will get selected, The other appellants were not eligible to be selected. 12. In view of the above and in view of available vacancies, we deem it just and proper to accommodate those three candidates without disturbing the selections and appointments already made, to do complete justice, in the following manner : 12.

l) Sunil Kumar Gupta (general category candidate with 184 marks) and Mohan Lal Soni (OBC candidate with 169 marks), who ought to have been selected in the 200l selection list, and who were denied appointment in view of excess selection of women candidates, shall be deemed to have been selected by RPSC. As a consequence, necessary letters ofappointment shall be issued to them. Their seniority for all purposes will however be counted only from the date ofactual E· appointment. 12. 2) Rajesh Kumar Daria (OBC candidate with 171 marks) was also not selected because ofthe selection of excess women candidates. He ought to have been selected and appointed in the 2001 selection. We are told that Rajesh Kumar Daria got selected in the subsequent 2005 examination and was appointed in the Rajasthan Judicial Service on 12. 2. 2005. Considering the above fact, we direct that he should be given his position in the 200 l selection list.

Interests ofjustice would be served if he is placed as the last candidate in the 200I selection list. As he worked from 12. 2. 2005, we make it clear that such retrospective seniority will not entitle him to any monetary benefits, but will only be counted for promotions and pensionary benefits. 13. ·The appeals are allowed accordingly in part and the order of the High Court is set aside insofar as the said three appellants; S. K. S. Appeal partly allowed.