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Judgment
These two writ petitions are being decided by passing a
common order, as the issue involved in both the writ petitions is of
similar nature.
The petitioners by way of these writ petitions have prayed
for quashing the final result of the successful candidates in clerical
cadre and to issue final select list strictly by following rules and
regulations of the reservation policy and for considering their
candidatures on the post of Clerk as they belong to Ex-servicemen
OBC Category.
The facts which require consideration for disposal of the
cases are that the Oriental Bank Of Commerce had issued an
advertisement in November 2008 inviting applications for
appointment in the clerical cadre for various States of India. For
Rajasthan, there were total 143 posts, which had bifurcated in the
various categories of General, SC/ST &OBC. In the advertisement,
it was provided that the reservation for Ex-servicemen shall be
horizontal and the horizontal reservation shall be provided
category-wise, as per their own category.
The petitioners participated in the selection process as Ex-
servicemen candidates. The written examination consisted of two
parts i.e. subjective and objective examination. The subjective
examination was only qualifying and the marks obtained in that
examination, were not to be counted while preparing the merit
list. Candidates who stood in sufficient merit, as per the cut-off, in
the objective paper, were called for interview. The final merit was
to be prepared on the basis of marks obtained in the objective
paper as well as in the interview.
Petitioner Satpal, after having cleared the objective paper
was called for interview on 21.04.2009 and, thereafter final result
was declared wherein, in all, names of 56 candidates were
included from Rajasthan but the name of the petitioner-Satpal was
not included. Similarly, in the second writ petition
(No.6614/2009), the petitioner Phusa Ram Beniwal was called for
interview after clearing the objective paper, but his name was also
not included in the select list. Both of them are from OBC
Category.
The petitioners have asserted that the respondents have
selected only 7 candidates in the entire country in the Ex-
servicemen quota, which was to be 10% of the total number of
posts. The assertion is on the basis of provision contained in Ex-
servicemen (Re-employment in Central Civil Services & Posts)
Rules, 1979 (herein after referred as ''the Rules of 1979'').
The petitioners, therefore, filed the present writ petitions
assailing that the action of the respondents in not including a
single Ex-servicemen in total 143 posts, vacancies notified for
Rajasthan, alleging that the action was not only contrary to the
advertisement issued, but also in violation of the Rules of 1979. It
is submitted that as the petitioners have passed the objective
papers and have also appeared for interview, their aggregate
marks were required to be taken into consideration for providing
reservation to Ex-servicemen in the OBC Category, to which, both
of them belonged. It has been stated that as many as 57
candidates from OBC Category had been given appointments, as
both the petitioners were from Ex-Servicemen OBC Category, both
ought to have been pulled up against the total number of 57 posts
and should have been considered for appointment by placing them
in the select list against the Ex-servicemen quota, which has to be
filled horizontally.
The writ petitions were admitted and ad-interim order was
passed by keeping one post reserved for the petitioners. It may be
relevant to mention herein that in the advertisement, there were
31 posts reserved for the candidates belonging to the OBC
Category.
A reply to the writ petition has been filed and it has been
stated that in the OBC Category, the last candidate, which was
selected, secured 146 marks. Petitioner Satpal secured 112
marks, while petitioner Phusa Ram secured 96 marks. Thus, both
secured marks below the cut-off line and could not be selected. It
is asserted that that candidates with much higher rank in the
vertical category cannot be sacrificed for the candidate who is
falling in the horizontal category as it effects the efficiency in
employment as envisaged under Article 335 of the Constitution of
India, therefore, the petitioners were not appointed.
Mr. M.S. Singhvi, Senior Advocate further submitted that all
the posts have now been filled. Higher meritorious candidates
cannot be denied benefit of their merit, in order to, give
reservation benefit to Ex-servicemen. It was, however, observed
at Bar that the appointments have been made after the interim
order was passed.
Before examining, whether the reservation provision relating
to Ex-servicemen has been correctly applied, it will be
advantageous to refer the nature of horizontal reservation and
the manner of it''s application. In Indra Sawhney Vs. Union of
India reported in 1992 Supp (3) SCC 217, the principle of
horizontal reservation was explained in Para 812, which is
reproduced as under:-
"812..... all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ''vertical reservations'' and ''horizontal reservations''. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [(under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same."
The view expressed above by the eleven Judges Bench, was
further extended by the Hon''ble Apex Court in the case of Anil
Kumar Garg Vs. State of UP reported in 1995 (5) SCC 173.
The issue involved in the case of (Supra) was relating to
admission to medical colleges and a submission was raised that
15% reservation for special categories was an overall reservation
and not compartmentalized reservation and thus special
reservation candidates have to be provided overall 15% of the
total seats whether by adjusting them against any of the Vertical
(Social) reservation or otherwise. Relevant Para 18 has been
quoted as under:-
"18. Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas). The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special rreservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota." [underlining is mine]
The issue relating to horizontal reservation again came up
before the Apex Court in the case of Rajesh Kumar Daria Vs.
RPSC reporeted in (2007) 8 SCC 785 wherein relying upon the
view aforesaid in Anil Kumar Gupta (Supra). The reservation for
women which is 30% in judicial services was examined and after
taking into consideration, it was held that while in vertical
reservation quota will be intacted and available in addition to
those who selected under open category for reservation under the
horizontal (special reservations). The principle laid down in R.K. Sabarwal & Ors. Vs. State of Punjab & Ors. reported in
1995 (2)SCC 745, Rajesh Kumar Sahah Vs. Dr. Y.L. Yamuna
1996 (3) SCC 253 would not apply. Explaining further, in
Rajesh Kumar Daria (supra) it has been held as under:-
"9.c. Where a special reservation for women is provided within the social reservation for Scheduled Caste, the proper procedure is first to fill up quota for Scheduled Caste in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste Women". If the number of workmen 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 candidate from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation."
The issue relating to horizontal reservation came up for
discussion in the case of Union of India Vs. National
Federation of the Blind & Ors. Reported in (2013) 10 SCC
772 wherein it was held that 3% reservation was for disabled
category persons, it would not violate the rule of 50% ceiling and
explaining Para 812 of Indra Sawhney (Supra) it was held in
Para 42 which is as under:-
"42. A perusal of Indra Sawhney (supra) would reveal that the ceiling of 50% reservation applies only to reservation in favour of other Backward classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the Constitution. In fact, this Court in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. Para 95 of the judgment clearly brings out that after selection and appointment of candidates under reservation for persons with disabilities they will be placed in the respective rosters of reserved category or open category respectively on the basis of the category to which they belong and, thus, the reservation for persons with disabilities per se has nothing to do with the ceiling of 50%.''''
If the stand of the respondents is accepted, the very purpose
of horizontal reservation would stand frustrated. It is settled law
that the horizontal reservation has to be provided by cutting
across amongst vertical reservation and if a candidate having a
right of selection under any of the horizontal reservations, secures
lesser marks than the last candidate in the vertical reservations
category, the candidate from horizontal reservation shall be pulled
up for filling up in the last seats in that categories of vertical
reservation. The benefit of horizontal reservation could not have
been denied merely because the last OBC Category candidate was
having higher merit. The provisions of Article 335 of the
Constitution shall not be attracted for filling seats amongst
reservationists of horizontal category vis a vis vertical category.
Keeping in view the aforesaid principles and applying it to
the present case in hand, this Court finds that the reservation
relating to Ex-servicemen in Central Civil Services, post was laid
down under the Rules of 1979. The same came into force w.e.f.
01.07.1979, it is admitted position that the said rules have also
been adopted by the respondent-Bank for filling up the posts and
it is thus mentioned in the advertisement issued by the Bank for
filling up 900 posts in various States of India. Coming back to
the Rules of 1979, it would be seen that Rule 4 of the Rules of
1979, which provides as under:-
Reservation of vacancies: (1) Ten per cent of the vacancies in the posts of the level of Assistant Commandant in all Para- military forces; ten per cent of the vacancies in each of the categories of Group ''C'' posts and of such posts in each group ''C'' Service; and twenty per cent of the vacancies in each of the categories of Group ''D'' posts and of such posts in each Group `D'' Service. including permanent vacancies filled initially on a temporary basis and temporary vacancies which are likely to be made permanent or are likely to continue for three months and more, to be filled by direct recruitment in any year shall be reserved for being filled by ex-servicemen : Provided the percentage of reservation so specified for ex-servicemen in a category of posts shall be increased or decreased, in any one recruitment year to the extent to which the total number of vacancies reserved for ex- servicemen, Scheduled Castes and Scheduled
Tribes (including the carried forward reservations for Scheduled Castes and Scheduled Tribes) and for any other categories taken together, falls short or is in excess as the case may be, of fifty per cent of the vacancies in that category of posts filled in that year: Provided further that in case of an increase in the reservation for the ex-servicemen under the preceding proviso the additional vacancies so made. available for them shall be utilised first for the appointment of disabled ex-servicemen and if any such vacancies still remain unfilled thereafter the same shall then be made available to other ex-servicemen. 2. Out of the vacancies reserved for being filled by ex-servicemen, vacancies shall be reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes in accordance with such orders as are issued in this behalf by the Central Government from time to time : Provided that if any ex-serviceman belonging to the Scheduled Caste or Scheduled Tribe is selected, his selection shall be counted against the overall quota of reservations that shall be provided for the Scheduled Castes or Scheduled Tribes in accordance with the orders issued by the Central Government from time to time. (3) No vacancy reserved for ex-servicemen in a post to be filled otherwise than on the results of , an open competitive, examination, shall be filled by the appointing authority by any general candidate, until and unless the 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 Central Government.
Thus, 10% of the total vacancies advertised in each category
of for General, State would be required to be taken into
consideration for filling up from Ex-servicemen, if they are
available.
A natural corollary from above, would be that for the number
of posts advertised under the OBC Category for Rajasthan
namely 31, 3.1 i.e. 3 posts shall be kept reserved for Ex-
Servicemen personnel who are from OBC Category also. The
principle in Indra Sawhney (Supra), Anil Kumar Gupta
(Supra), Rajesh Kumar Dariya (Supra) if applied, would mean
that if any Ex-Servicemen OBC Category person obtains marks
more than the last OBC category candidate, he would fall in merit
and also keep away one post meant for Ex-servicemen. However,
if there is a shortfall, the candidates shall be filled up from lower
merit belonging to Ex-servicemen so that 3 posts of Ex-
Servicemen are filled.
Admittedly, no person amongst Ex-Servicemen was
available and therefore, in view of the two petitioners being
available, were required to be pulled up and be given
appointment.
Mr. M.S. Singhvi, Senior Counsel by Caveat stated that there
may be other persons also who may be from the Ex-Servicemen
Category having obtained higher marks than the petitioners and if
the principle is to be applied, candidates above the petitioners
may have a claim. Principally, the submission of the Senior
Counsel is true, however, as has been noted, there was one post
kept reserved for the two petitioners alone and the appointments
have already been given to the candidates by the respondents,
after the interim order had been passed and this Court would like
to absurd the entire selection already conducted. This Court,
therefore, deems it appropriate to limit the relief to the
petitioners, who were aware of the rights and had approached the
Court in time. The view taken by the Hon''ble Apex Court in
Rajesh Kumar Daria (Supra) where two certain candidates
approached the Supreme Court after the decision rendered in case
but were denied, even though, having higher merit than the
petitioners who had originally filed SLP before the Supreme Court.
It has been further informed to this Court that in a similar
matter relating to the same selection, writ petitions were filed at
Punjab & Harayana High Court i.e. C.W. 16691/2009 Dayal
Chand Vs. The Oriental Bank Of Commerce, New Delhi &
Ors. decided on 03.03.2011 and CWP No.13840/2010 Ex-
Sergeant Shanker Maiti & Ors. Vs. Chairman-cum-Managing
Director, Oriental Bank of Commerce, New Delhi & Ors.
decided on 23.03.2011, a similar view was taken with the
following directions:-
"The submission that the petitioner could not obtain the cut off marks is again apparently misconceived. It is not stated anywhere that there was any minimum cut off marks fixed for selection, which the petitioner could not attain. Once the reservation is made for a particular category, the person competing in that category will have to be assessed on the basis of his merit and selection accordingly made depending upon the number of vacancies available in that reserved category. Concededly, 11 post of Clerks were reserved for ex-serviceman category and none was selected. This approach is not legally appropriate and as such, a case is made out for issuing directions to the respondents to make selection in accordance with law. The action of the respondents in denying selection to the petitioner, therefore, cannot be sustained."
Accordingly, directions are issued to the respondents to
consider the candidatures of the petitioners for appointment on
the post of Clerk under the Advertisement issued in November,
2008 and under the Ex-Servicemen OBC Category and appoint
them from the date similarly situated other clerical staff has been
appointed with all consequential benefits of seniority etc. However,
the pay and allowances shall only be notionally fixed and actual
payment shall be made only from the date of their joining. The
said exercise shall be done within a period of fifteen days from
today.
In the result, both the writ petitions are accordingly allowed.
No costs.