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Judgment
Ramesh Ranganathan, CJ
Heard Mr. Rajveer Singh, learned counsel for the petitioners and Mr. Paresh Tripathi, learned Counsel for the High Court of Uttarakhand/respondent.
The question raised in both these Writ Petitions are identical. As the High Court has filed its counter affidavit in WPSB No.317 of 2019, it is convenient, to take note of the contents of the said Writ Petitions in disposing of both the cases.
The relief sought for in the writ petitions is to quash the list of candidates selected to appear in the Mains Examination, in so far as it relates to the general category, which excludes the petitioner from the said list; a writ of mandamus commanding and directing the respondent to include the name of the petitioner in the list of selected candidates for appearing in the Main Examination and a writ of certiorari to quash the advertisement to the extent the same exceeds 10% reservation to the economically weaker sections.
Facts, to the limited extent necessary, are that the Public Service Commission issued an advertisement on 10.04.2019, inviting applications from eligible candidates for direct recruitment to the Uttarakhand Higher Judicial Services. The said advertisement records that 01 post was sought to be filled-up from among the 'General Category' candidate, 03 posts from the 'Scheduled Castes category', and 2 posts in the 'Economically Weaker Sections' category. The petitioners appeared in the Preliminary Examination. Candidates, found successful in the preliminary examination, were called upon to appear in the Main Examination in the ratio of 1:15 i.e. for each advertised post, the 15 most meritorious candidates, belonging to each category, (in their order of merit in the Preliminary Examination), were called to appear in the Main Examination which was thereafter required to be followed by an interview.
Both the petitioners herein did not come up high in the order of merit for them to be called upon to appear in the Main Examination. They invoked the jurisdiction of this Court contending, that since reservation in favour of the economically weaker sections can only be provided a for maximum of 10%, and since the total number of posts advertised were itself 06 (01 under the General Category, 03 under the Scheduled Castes category and 02 under the Economically Weaker Sections category), and only 01 of these posts was in the general category, providing reservation of 02 posts, in favour of the economically weaker sections, was wholly arbitrary and illegal; 03 posts ought to have been filled-up under the general category; and if candidates were called in the ratio of 1:15, for 03 posts in the general category the most meritorious 45 candidates would have been called to appear in the Main Examination; and the petitioners would have been eligible to appear in the Main Examination.
Mr. Rajveer Singh, learned Counsel for the petitioners, would submit that Article 16 was amended by the Constitution (One Hundred and Third Amendment) Act, 2019, and the amendment was published in the Gazette on 12.01.2019; Article 16(6) provides for reservation of a maximum 10% of the posts to the economically weaker sections of the citizens; in computing the maximum 10% posts, to be reserved in favour of economically weaker sections, it is only those vacancies, which arose after the Constitution (One Hundred and Third Amendment) Act, 2019 came into force, which could have been taken into consideration in computing 10% reservation in favour of the economically weaker sections; the respondent had erred in computing reservation on the total number of posts sanctioned under the general category; and the impugned advertisement, issued by the Public Service Commission, must, therefore, be quashed.
On the other hand, Mr. Paresh Triipathi, learned Counsel for the High Court, would submit that Article 16(6) enables the State to provide reservation, in appointment to posts, in favour of the economically weaker sections; the ceiling for providing such reservation, is 10% of the posts in each of the categories; 25 posts, in the H.J.S. cadre, are required to be filled up by direct recruitment; of these 25 posts, 05 are reserved in favour of the Scheduled Castes category, 01 for the Scheduled Tribes category, and 04 for the Other Backward Classes category, leaving 15 posts to be filled up by direct recruitment under the general category; since 10% reservation is required to be provided in favour of the economically weaker sections, 10% of 15 posts would come to 1.5 and, when rounded of, it would come to 02 posts; only 02 posts, which have been reserved in favour of the economically weaker sections; of these 02 posts, reserved in favour of the economically weaker sections, 01 post has been horizontally reserved in favour of women; and the petitioners' contention that it is only the vacancies available, after the Constitution (One Hundred and Third Amendment) Act, 2019 came into force on 14.01.2019, which can be taken into consideration in providing 10% reservation in favour of the economically weaker sections, is not tenable.
By the Constitution (One Hundred and Third Amendment) Act, 2019, which was notified in the official Gazette on 12.01.2019 Clause (6) was inserted to Article 16 of the Constitution. The said clause (6) reads as under:-
"(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category."
Reservation in favour of the economically weaker sections, under Article 16(6), is available for citizens other than the classes mentioned in Article 16 (4) which would mean that the benefit of reservation, in favour of the economically weaker sections, is available only to persons other than those belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. Further, reservation under Article 16(6) is in addition to the existing reservation which would, evidently, mean reservation under Article 16(4). The benefit of reservation in favour of the economically weaker sections, is confined, in terms of Article 16(6), only to a maximum of 10% of the posts in each category.
The word used in Article 16(6) is "post" and not "vacancy". A post is created on its being sanctioned by the competent authority, and an unfilled post alone is said to be vacant. If Parliament had intended to restrict reservation, in favour of the economically weaker sections, only to 10% of the vacancies, it would have used the word "vacancy" instead of the word "post" in Article 16(6) of the Constitution. Since reservation, in favour of the economically weaker sections, is required to be provided upto a maximum of 10% of the posts in each category, the respondents had taken into account the 15 posts sanctioned under the general category for direct recruitment in Higher Judicial Service, and had prescribed 10% thereupon i.e. 10% reservation in the 15 posts in favour of the economically weaker sections, comes to 1.5 posts which has been rounded of to the next higher figure of 02, and 02 posts have been reserved in favour of this economically weaker sections category. Since none of these 02 reserved posts could have been filled-up earlier, since the said benefit itself was conferred on this category, only after the Constitution (One Hundred and Third Amendment) Act, 2019, came into force, both these posts were advertised to be filled-up from candidates belonging to the economically weaker sections category.
Unlike vertical reservation under Article 16(4) which is in addition to merit, horizontal reservation is not. Consequently, since 30% of the posts, sought to be filled-up under the general category, are required to be reserved in favour of women which comes to 0.6 for 02 posts, it was rounded of to the next higher figure of 01; and, consequently, of the 02 posts reserved in favour of the economically weaker sections, one was horizontally reserved in favour of women from the economically weaker sections category. The contention that only those vacancies, which arose after the Constitution (One Hundred and Third Amendment) Act, 2019 came into force after its publication in the official gazette on 12.01.2019, does not merit acceptance for, as noted herein above, 10% of the "posts", and not 10% of the "vacancies" are required to be reserved in favour of candidates belonging to the economically weaker sections category. The contentions urged, in challenge to validity of the advertisement, does not therefore must acceptance.
Further, neither of the petitioners herein had even appeared in the Main Examination having been found in eligible to appear for the said examination. In terms of the extant Rules, candidates, in the order of their merit in the main examination, are to be called for interview and, thereafter, selected and recommended for appointment to posts in the Higher Judicial Service. The petitioners were not even found to be sufficiently upon in the order of merit to even be called for the Main Examination. The challenge to the reservation, provided in favour of the economically weaker sections, must fail both on merits and on the ground that the petitioners would not have, in any event, been entitled to be selected for appointment to these posts.
Both the Writ Petitions fail and are, accordingly, dismissed. No costs.