Divya Rajvanshi and Another Vs State of Uttarakhand and Another

Barin Ghosh, C.J.@mdashThere is horizontal reservation for �female� in service, with which we are concerned here. Such reservation applies to general category candidates and also to other category candidates. Learned Counsel for the Petitioners contends that the same is not permissible. We say that the same is permissible since the judgment of the Hon�ble Supreme Court was rendered in Indra Sawhney v. Union of India, (1992) 6 SCR 321 .

2. It has further been contended by the Petitioners that the post, reserved for female general category candidates, is being carried forward year after year and the same is not permissible. This contention, being against the interest of the Petitioners, we have thought that it would not be appropriate on our part on this writ petition to decide the same.

3. The principle grievance of the Petitioners is that though 33 posts were advertised, and according to Rules, 99 people were to be called for interview, but only 21 people were called for interview on the purported basis that remaining, having not been able to secure 60 marks, did not qualify. It was contended by learned Counsel for the Petitioners, relying on the judgment of Hon�ble Supreme Court in the case of State of Punjab and Others Vs. Manjit Singh and Others, , that in a situation of this nature, the Commission could not fix a cut off mark, and instead was required to call 99 people for interview on the basis of marks secured by them in examination chronologically on the basis of merit. We think that the judgment of the Hon�ble Supreme Court, rendered in the case of State of Punjab v. Manjit Singh (Supra) has no application to the instant case. In that case, the Commission was conducting the Screening Test. Even in the screening test, a minimum benchmark had been prescribed. The Hon�ble Supreme Court felt that when the object of the screening test was to screen competent people for the purpose of testing their merit at a subsequent examination, there was no just reason to fix any benchmark at the screening test, instead to screen those people on the basis of their merit obtained in the screening test. In the instant case, the Respondent Commission was not conducting any screening test instead it was conducting the final written examination in order to ascertain merit of candidates. In the matter of ascertaining such merit, it goes without saying that not only a benchmark can be fixed in law, the same is required to be fixed so that undesirable people, who do not have the basic knowledge to be tested in the examination, are not appointed only on the ground that others do not have better merit than them. We, accordingly, see no force in the contention that the Respondent Commission was incompetent to fix benchmark, more so, when the service rule itself provides the same.

4. The last contention is that having had fixed the benchmark at 60 marks for general candidates and 50 marks for scheduled caste and scheduled tribe candidates, the Commission did not get appropriate candidates to fill up the vacant posts and, accordingly, at present the benchmark has been reduced to 50 for general candidates and to 40 for scheduled caste and scheduled caste candidates. That has been, as it could be, done only by amending the Rules. That having been done, it is hoped and expected that in the next examination, Petitioners would come within the benchmark.

5. With the hope as above, the writ petition is disposed of.