AFR
Judgment reserved on 13.05.2010
Judgment delivered on 21.07.2010
Civil Misc. Writ Petition No.69552 of 2009
Devendra Nath Tiwari Vs. State of U.P. & Ors.
Hon. Sunil Ambwani, J.
Hon. K.N. Pandey, J.
The petitioner is a law graduate and a physically handicapped
person with disability, certified by the Chief Medical Officer,
Allahabad on 4.12.2003 on account of ‘Postpathoparisis of left
upper limb with Disability of Fifty (50%) of Affected Part’. By
this writ petition he has prayed for direction to quash the
appointment of Smt. Lavlesh Singh and Shri Akhilesh Kumar
Tiwari, respondent Nos.3 and 4 as Assistant Prosecuting Officers
in the quota of physically disabled persons in the selections
advertised by the Public Service Commission, U.P. at Allahabad,
in Employment News dated 7th -13th October, 2006 for filling up
86 vacancies including 43 vacancies in general category; 24 in
OBC; 18 in SC; 1 in ST and 17 backlog reserved vacancies. He
has also prayed for direction to the respondent to consider him for
appointment to the post of Assistant Prosecuting Officer by
holding main examination and interview of the petitioner and to
appoint him on the post.
We have heard Shri Arvind Srivastava, learned counsel for the
petitioner. Learned Standing Counsel has appeared for the State-
respondent. Shri P.S. Baghel assisted by Shri Gautam Baghel has
appeared for the Public Service Commission, U.P. Shri K.R.
Sirohi along with Ms. Stuti Singh have appeared for Smt. Lavlesh
Singh-respondent No.3.
An advertisement was issued by the Public Service
Commission, U.P. at Allahabad (in short the Commission) in the
year 2003, inviting applications for 57 posts of Asstt. Prosecuting
Officers providing for quota by way of horizontal reservation for
2
physically handicapped; dependents of freedom fighters, and
women candidates in accordance with the Government Orders. In
the advertisement published for the next recruitment after three
years in Employment News dated 7th-13th October, 2006, for 86
vacancies 43 vacancies were included in general category, and 17
backlog vacancies, for reserved category, the advertisement did
not provide for reservation for physically handicapped persons.
The application form, however, provided for information to be
submitted by the candidates in Column C (d) to describe the
nature of physical disability and the category in which the person
may be included.
The petitioner filed a writ petition No.23468 of 2007, with a
prayer to direct the respondents to provide quota for physically
handicapped persons in the selections in accordance with the U.P.
Public Service Commission (Reservation for Physically
Handicapped, Dependents of Freedom Fighters and Ex-
servicemen) Act, 1993, as amended in 1997. The petitioner
submitted that vide Notification dated 31st July, 2007 the post of
Asstt. Prosecuting Officer in the Directorate of Prosecution
(Home) has been identified for reservation for physically
handicapped candidates. By an order dated 10.7.2008 the Court
directed that the respondents shall ensure that one post of Asstt.
Prosecuting Officer is left vacant, in the open general category
and to mention this fact in the select list to be forwarded by the
Commission to the State Government. The writ petition was
disposed of on 13.10.2008 with directions that those physically
handicapped candidates, who have appeared in the examination,
but have failed on the basis of such advertisement will be
considered in the category of physically handicapped candidates
and the best amongst them shall be selected. The directions of
the Court are quoted as follows:-
“So far as non-consideration of the candidature of
the petitioner as physically handicapped candidate is
concerned, at present we are of the view that those
3physically handicapped candidates, who have appeared in
the said examination but failed on the basis of such
advertisement, will be considered in the category of
physically handicapped candidates and the best among
them can be selected.Thus, the writ petition is disposed of.
No order is passed as to costs.
Dt.13.10.2008 Sd-Amitava Lala, J. KST [WA-23468-2007] Sd-Arun Tandon, J."It is stated in para 15 of the writ petition that the petitioner
filed the certified copy of the order of the High court dated
13.10.2008 in the Commission on 4.11.2008 and made an
application demanding information under the Right to Information
Act, 2005, about the cut off marks of the applicant and other
physically handicapped persons, who had appeared in the
examination. A reminder was sent on 24.11.2008. The
Commission gave a reply to the petitioner on 24.1.2009, informing
him that the Commission has not taken a decision as yet on the
judgment of the High Court dated 13.10.2008, and the letter of the
State Government dated 6.9.2008.The petitioner was not declared successful in the preliminary
examination. The Commission informed the petitioner by its letter
dated 14.1.2009 that in the meeting held at the Government level
on 6.9.2008 presided by the Principal Secretary of the department
and assisted by the representatives of the Public Service
Commission, it was decided that since there is a provision of 3%
horizontal reservation for physically handicapped persons and that
since the advertisement did not mention about the reservation, a
corrigendum be issued by the Commission. It was also decided
that in the corrigendum the physically handicapped persons
should be allowed to apply for the reserved posts.It is stated in para 27 of the writ petition that 6 persons out of
those, who applied in general category belonging to physically
handicapped category were called for main examination. The cut
4off marks of different categories in the preliminary examination
were as follows:-1. Genera category 99
2. Scheduled castes 83
3. Women 86Six persons, who were given the benefit of physically
handicapped persons, and were called for main examination,
secured marks in the preliminary and main examination as
follows:-Sl.No. Name Roll Category Marks Marks No. obtained in obtained in preliminary main examination examination 1. Sachin 16431 General 107 198 Kumar Rai 2. Km. 18672 Gen.+ 86 178 Sarika Women 3. Rajiv 25289 SC 85 193 Kumar Bhartiya 4. Smt. 27744 OBC+ 90 201 Lavles Women Singh 5. Akhilesh 29277 General 104 211 Kumar Tiwari 6. Raj Kumar 36208 SC 86 182 VermaThe petitioner was not permitted to appear in the main
examination, and thus he could not compete with the above six
persons. Out of the six, two persons namely Akhilesh Kumar
Tiwari in general category and Smt. Lavlesh Singh in OBC +
women category were selected by providing horizontal
reservation in their respective categories.Shri Arvind Srivastava, learned counsel for the petitioner
submits that out of 86 advertised posts reservation for physically
handicapped persons at 3% would be 2.54 and that by applying
5principle of rounding off, three vacancies were to be reserved for
filling handicapped persons. The Commission selected and
recommended only two persons. He further submits that the
Commission invited 18 persons for each vacancy for final
examinations, whereas in the case of physically handicapped
persons only six candidates were invited to appear in the final
examination for the two vacancies worked out by the Commission.
The petitioner secured 96 marks in the preliminary examination
and was thus entitled in accordance with the ratio in which other
candidates were invited to appear in the main examination.Shri Arvind Srivastava submits that the Commission has
committed gross illegality in reducing the quota of physically
handicapped persons, from out of 86 vacancies to 2 instead of 3,
and thereafter discriminated the physically handicapped
candidates in calling them in insufficient numbers in the ratio of
1:6 for main examination, whereas ratio for general category and
other reserved categories was 1:8. Lastly he submits that the
selected persons namely Smt. Lavlesh Singh and Shri Akhilesh
Kumar Tiwari, respondent Nos.3 and 4 do not belong to the
category of physically handicapped persons and were allowed to
appear in the final examination with much lower marks. In respect
of Km. Sarika, Rajiv Kumar Bhartiya, Smt. Lavlesh Singh and
Shri Raj Kumar Verma, he submits that the physically
handicapped persons stand in a separate quota and have to be
selected on their own merit. They have been wrongly assigned
reservation in the main category provided, with vertical
reservation in which they applied. The Commission should have
selected the physically handicapped candidates in their own merit
and thereafter assigned them horizontal reservation in their own
category. The procedure adopted by the Commission for applying
reservation in main examination on the basis of marks secured in
preliminary examination was incorrect. The same criteria was not
followed for vertical reservation.6
Shri Arvind Srivastava has relied upon the judgments of the
Supreme Court in Shiv Prasad Vs. Government of India &
Ors., (2008) 10 SCC 382; Andhra Pradesh Public Service
Commission Vs. Baloji Badhavath & Ors., (2009) 5 SCC 1
and Union of India Vs. Ramesh Ram & Ors., (2009) 6 SCC
619 in support of his submissions.Shri P.S. Baghel appearing for the Public Service Commission
submits that in the Advertisement No.A-1/E-1/2006 for
conducting examination of Asstt. Prosecuting Officers, 2006, as
per the requisition received from the State Government, at the time
of advertisement, no provision was made for reservation for
physically handicapped persons. The examination was to be
conducted in three stages namely (i) preliminary examination (ii)
main examination and (iii) interview. The petitioner Shri
Devendra Nath Tiwari appeared in the preliminary examination,
the result of which was declared. He filed Writ Petition No.23468
of 2007 for providing reservation to physically handicapped
candidates. Since there was no reservation provided for physically
handicapped candidates, the petitioner was treated as general
category candidates and was declared unsuccessful in the
preliminary examination. The main examination was conducted
on 28.11.2007 and 29.11.2007. By the time the interim order was
passed on 10.7.2008 and the writ petition was finally decided on
13.10.2008, the main examinations were held and the Commission
was going to prepare the result of the main examination.
The Commission in compliance with the judgment after taking
consent of the State Government decided to provide reservation to
only those physically handicapped candidates, who had appeared
in the main examination. Out of the total 86 vacancies of the
Asstt. Prosecuting Officers, according to 3% horizontal
reservation only 2 posts were reserved for physically handicapped
candidates and that as per the policy of the Commission 2 x 3, i.e.
6 candidates qualified for interviews. In the final list two
7candidates of physically handicapped category were selected, one
of them is general and another belong to OBC + female of U.P.
The final select list was forwarded to the State Government. Shri
P.S. Baghel, learned counsel for the petitioner would submit that
the Commission did not cause any discrimination. The judgment
dated 13.10.2008 in Writ Petition No.23468 of 2007, was fully
complied with. The Commission did not provide for reservation
for physically handicapped candidates. It, however, accepted the
judgment of the High court dated 13.10.2008 with direction;
“those physically handicapped candidates, who have appeared in
the said examination but failed on the basis of such
advertisement, will be considered in the category of physically
handicapped candidates and the best among them can be
selected.”The Commission in consultation with the State having decided
to give reservation to physically handicapped persons further
decided that since out of 86 vacancies only 2 vacancies were to be
reserved for providing 3% horizontal reservation to physically
handicapped person, only 6 candidates could be called for
interview in their respective categories. Shri Baghel submits that
principle of rounding off is not applicable to reservation for
physically handicapped persons. If the principle of rounding off
is applied to the advertised vacancies, the quota of physically
handicapped candidates would exceed beyond 3%. In such case
the reservation at 3.48% will be beyond the statutory limit of 3%
provided under the Act. Shri Baghel submits that the petitioner
did not qualify in the preliminary examination. He scored 96
marks, much below the marks awarded to the two general
category candidates namely Shri Sachin Kumar Rai and Shri
Akhilesh Kumar Tiwari with 107 and 104 marks respectively. In
the final examination Shri Akhilesh Kumar Tiwari scored 211
marks and Smt. Lavlesh Singh scored 201 marks. Although Smt.
Lavlesh Singh received the benefit of OBC as well as the women
8in U.P., she was even otherwise at Sl.No.2 in the main
examination and having succeeded in the interviews was
provided with horizontal reservation in her own category, for
appointment. Shri Baghel submits that in the circumstances the
Commission did not make any mistake in applying reservation to
the advertised post, and selected best candidates amongst all as
per the directions of the High Court. He would submit that chance
of succeeding in the final examination and interviews are not the
grounds on which the Court may interfere. The Commission has
selected the best amongst physically handicapped persons.The U.P. Act of 1993 defines physically handicapped
person under Section 2 (e) after its amendment in 1997, a person
which suffers from (i) blindness or low vision (ii) hearing
impairment (iii) locomotive disability or cerebral palsy. Section 3
provides for reservation for vacancies in favour of the physically
handicapped etc. Section 3 of the Act is quoted as below:-“3. Reservation of vacancies in favour of
physically handicapped etc.-(1) There shall be
reserved at the stage of Direct Recruitment-(i) in public services and posts two per cent of
vacancies for dependents of freedom fighters;
(i-a)in public services and posts other than Group
‘A’ posts or Group ‘B’ posts, on and from may 21,
1999 two per cent of vacancies and on and from
the date on which the Uttar Pradesh Public
Services (Reservation for Physically
Handicapped, Dependent of Freedom Fighters
and Ex-Servicemen) Amendment Act, 1999 is
published in the Gazette five per cent of vacant,
for Ex-Servicemen;(ii) in such public services and posts as the State
Government may, by notification, identify one
per cent of vacancies each for the persons
suffering from-(a) blindness or low vision;
(b) hearing impairment; and
(c) locomotor disability or cerebral palsy.
(2) The respective quota of the categories specified in
sub-section (1) shall be such as the State Government
may from time to time determine by a notified order.
(3) The persons selected against the vacancies reserved
under sub-section (1) shall be placed in the appropriate
9categories to which they belong. For example, if a
selected person belongs to Scheduled Castes category he
will be placed in that quota by making necessary
adjustment; if he belongs to [other Backward classes of
Citizens] category, he will be placed in that quota by
making necessary adjustments. Similarly if he belongs
to open competition category, he will be placed in that
category by making necessary adjustments.
(4) For the purposes of sub-section (1) an year of
recruitment shall be taken as the unit and not the entire
strength of the cadre or service, as the case may be;
Provided that at no point of time the reservation
shall, in the entire strength of cadre, or service, as the
case may be, exceed the quota determined for respective
categories.
(5) Where, due to non-availability of suitable
candidates any of the vacancies reserved under sub-
section (1) remains unfilled it shall be carried over to
the next recruitment.”
It is not denied that the State Government has vide
notification dated 31st July, 2007 identified the posts of Asstt.
Prosecuting Officer to be reserved for physically handicapped
persons in accordance with the Act of 1993. The petitioner, with
locomotive disability assessed at 50% was eligible to be
considered for appointment in the quota of physically
handicapped candidates to the advertised posts. The notification
issued by the State Government for respective quotas of categories
in sub-section (1) of Section 3 has not been placed on record. We,
therefore, proceed on the basis that there is 1% reservation on the
post of Asstt. Prosecuting Officer for each of the persons
sufferring from (a) blindness or low vision (b) hearing impairment
and (c) locomotive disability or cerebral palsy. The petitioner
suffers from locomotive disability and thus he was qualified for
1% reservation for physically handicapped person in his
category in the advertised post and in case he was selected, he was
to be adjusted in accordance with sub-section (3) of Section 3 in
the appropriate categories to which he belongs.
The petitioner with locomotive disability, therefore, was
entitled to 1% reservation out of 86 advertised vacancies, and
10
which could not exceed, by one post in the advertised vacancies.
He was, thereafter, required to be placed in his respective category
i.e. general category for appointment by making necessary
adjustments. In the present case by the time interim order was
passed in Writ Petition No.23468 of 2007 on 10.7.2008, directing
that one post of Asstt. Prosecuting Officer to be left vacant within
open/ general category and by the time final orders disposing of
the writ petitions of 13.10.2008 were passed, the main
examinations were held. The Commission in order to comply with
the order of the High Court took a decision to call three persons
out of those, who had applied and were declared successful in the
main examination to be called for interview. Only two persons out
of the 6 successful candidates could be appointed and the best
among them in order of merit was selected and adjusted in their
respective category for appointment on horizontal basis.
Smt. Lavlesh Singh, daughter of Shri Neeraj Kumar is
sufferring with 40% disability of the lower limbs on account of
polio. Shri Akhilesh Kumar Tiwari is also sufferring from 40%
locomotive disability. Both these persons had higher merit than
the petitioner in the preliminary examination.
In Shiv Prasad (Supra) the Supreme Court explained the
reservation made for women candidate by “interlocking
reservation” as propounded in Indra Sawhni’s case, (1992) Supp. 3
SCC 217, and in Swati Gupta Case, (1995) 2 SCC 560, it was
found that three posts in combined cadre of Associate Professor/
Asstt. Professor, one unreserved and 2 SC were available under
flexible cadre structure 20% horizontal reservation for women
candidates were applied to these posts. The figure came out to
0.6%, which was rounded of to 1 post. Since the respondent was
found suitable, no grievance could be made against her
appointment as Asstt. Professor. The Supreme Court further
held that since the cadre of Asstt. Professor and Associate
Professor were combined, either the petitioner or the respondent
11
could be appointed in the general category but in view of the
horizontal reservation for women respondent No.4 could be
appointed only after excluding the petitioner. Since the post was
of general category, the respondent was accommodated on that
post in women reservation quota and her appointment was
consequently valid. In Andhra Pradesh Public Service
Commission (Supra) the Supreme Court held that provisions
contained in Art.15 and 16 are merely enabling provision and
hence the manner in which the State as also the Public Service
Commission would comply with the constitutional requirement of
Art.335 should ordinarily not be allowed to be questioned. The
mandate of reservation provisions and Art.335, should be
balanced and procedure evolved for laying down the mode and
manner for consideration of a right such as the right under Art.16
can be interfered with only when it is arbitrary, discriminatory or
wholly unfair. Unless the procedure adopted by Public Service
Commission is held to be arbitrary or against the known principles
of fair play, the superior courts would not ordinarily interfere
therewith.
The Supreme Court held that shortlisting of candidates for
main examination based on performance in preliminary
examination is permissible, if decided on the touchstone on
Article 335. The State is bound to device some procedure to
shortlist the candidates considering its limited reservation. The
category wise reservation is detrimental to the interest of
meritorious candidates belonging to reserved categories and would
give rise to the complexity since reservation to women and
handicapped person is on the horizontal basis. The constitution
lays down provision both for protective discrimination as also
affirmative action. The reservation made for the members of
scheduled castes, scheduled tribes and other backward classes is
subject to Art.335 of the Constitution of India. No citizen can
claim reservation as matter of right.
12
In Public Service Commission Vs. Mamta Bisht &
Ors. decided on 3.6.2010, MANU/SC/0410/2010 the Supreme
Court quoted with approval the method of applying horizontal
reservation, explained in Rajesh Kumar Daria Vs. Rajasthan
Public Service Commission & Ors., AIR 2007 SC 3127:
MANU/SC 7813/2007, as follows:-
“The second relates to the difference between the
nature of vertical reservation and horizontal reservation.
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.’ Where a
vertical reservation is made in favour of a backward class
under Art. 16(4), the candidates belonging to such
backward class, may compete for non-reserved posts and if
they are appointed to the non-reserved posts on their own
merit, their numbers will not be counted against the quota
reserved for the respective backward class. 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 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 of
India v. Virpal Singh Chauvan (1995 (6) SCC 684) and
Ritesh R. Sah v. Dr. Y. L. Yamul (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 quota 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.”
13
In the present case the Commission made a mistake in
failing to provide statutory reservation for physically handicapped
persons, under the U.P. Act of 1993 as amended in 1997, at 3%
reservation for physically handicapped persons, and which
provides for 1% reservation for each of the person suffering from
blindness or low vision; hearing impairment and locomotive
disability or cerebral palsy. Both the selected persons namely
respondent Nos.3 and 4 as well as the petitioner fell within 1%
reservation on the vacancy to be reserved for locomotive
disability. The Commission could appoint only 1 in the 86
vacancies and thereafter place it in appropriate category. The
maximum number that could be identified under Section 3 (1) (ii),
in the selections was to best amongst persons, who had appeared
in the preliminary examination to be called for final examination.
Since the final examination was already over, the Commission did
not commit any mistake in calling for 6 persons in the same ratio
as the persons were called in the order of merit from amongst the
main examination to interviews. In correcting the mistake the
Commission did not commit any further error in complying with
the order of High Court, which was not challenged and has
become final by selecting the best amongst those, who had
appeared in the final examination. Smt. Lavlesh Singh had added
advantage of being women candidate falling in OBC category and
thus both respondent Nos.3 and 4 were appointed in preference
to the petitioner, on the basis of their merit in their respective
categories compared with the petitioner.
In the given facts and circumstances, we do not find that the
Commission committed any error of law in applying the
reservation for physically handicapped persons under the U.P.
Act of 1993, as amended in 1997, in the selections.
The writ petition is dismissed.
Dt.21.07.2010
SP/