Mamta Bisht, Advocate Vs State of Uttaranchal and Others

P.C. Verma, J.@mdashBy means this petition, the Petitioner seeks writ of mandamus or order setting aside the result dated 31-7-2003 of Uttaranchal Judicial Service, Civil Judge (Junior Division) Examination, 2002 and also seeks writ of direction to summon and declare the merit list and marks of the Main Examination/Interview of the candidates selected in the main examination before the Court so as to make the process of selection transparent.

2. The Petitioner filed the writ petition framing the following questions of law:

(a) Whether granting reservation more than what is prescribed in the notification that is 37%, is unconstitutional and has been done to adjust candidates which would otherwise have not qualified if taken in general category.

(b) Whether the selection of candidates in excess of the posts notified that is 42 instead of 35 is violative of Articles 14 and 16 of the Constitution?

(c) Whether the increased vacancies should have included both reserved and general category as against the selection made of only candidates of reserved category?

(d) Whether the selection of abovementioned roll numbers of the general candidates in the category of Uttaranchal Mahila (reserved category) is arbitrary?

(e) Whether the selection process suffers from malpractices and arbitrariness and has been done based on the whims and fancies of the authorities in order to suit their own convenience and candidates?

(f) Whether the entire process of selection as in the instant case lacks transparency where the merit list has been deliberately not suppressed?

3. Brief facts giving rise to the present writ petition are that the State of Uttaranchal, vide notification No. 2(Exam.)2002-03 dated 07-06-2002 advertised 35 posts for Uttaranchal Judicial Service Civil Judge (Junior Division) Examination, 2002. The Petitioner is a domicile of Uttaranchal. She applied in accordance to the rules pursuant to the aforesaid advertisement. The Petitioner appeared in the preliminary examination held by the Respondent No. 3 and was declared successful on 13-2-2003 being roll number 02885 in Uttaranchal Mahila Category. The Petitioner further appeared in the main examination and in the same also declared successful in the result published on 22-6-2003. Thereafter she appeared for the interview on 23-7-2003 but in the final result which was declared on 31-7-2003 the name of the Petitioner was not amongst the selected candidates of Uttaranchal Mahila Category. The number of candidates selected was 42 as against 35 which was initially advertised. It is alleged by the Petitioner that it is surprising that most of the candidates belongs to the Scheduled Caste. Scheduled Tribes and OBC Category do not belong to Uttaranchal and have been appointed in-stead of domiciles of Uttaranchal. The Petitioner also alleged that the entire process of selection has been made by Respondent No. 3 without following the due process of law and its own guidelines and notification for reservation dated 18-7-2001. Out of total 42 candidates so selected, only 23 candidates are in general cadre, whereas 19 candidates have been selected in the reserved category, which shows that the entire process was malafide and against the settled principles of law.

4. The Petitioner, by way of amendment application, seeks to amend the writ petition, which was allowed on 30-9-2005 and the Petitioner was permitted to incorporate the amendment during the course of day. By way of amendment the Petitioner alleged that five seats were horizontally reserved against general category for Uttaranchal Mahila but only four candidates of the Uttaranchal Mahila General Category have been selected viz Km. Monika Mittal (Roll No. 7658, Sl. No. 24), Km. Neelam (Roll No. 0465, Sl. No. 25), Anju Shree Juyal (Roll No. 3482, Sl. No. 27) and Preetu Rani (Roll No. 12524, Sl. No. 28). It is also alleged by the Petitioner that the action of the Respondents reducing the seats reserved for Uttaranchal Mahila General Category is absolutely illegal in view of the law laid down by the Apex Court in the case of Indra Sawhney v. Union of India and Ors. reported in 1992 Supp.31 SCC 217 as well as law laid down by the Division Bench of this Court in Writ Petition No. 816 of 2002 (M/B), Km. Shikha Agarwal v. State of Uttaranchal and Ors. decided on 16-4-2003. The Petitioner further alleged that one candidate, namely Neetu Joshi (Roll No. 12320 Sl. No. 9) was selected by virtue of her own merit as general category candidate but she was counted against five seats reserved for the Uttaranchal Mahila General Category and as such one more candidate belonging to Uttaranchal Mahila General Category should have been selected.

5. On 01-9-2003 the Petitioner filed supplementary affidavit deposing therein that the candidates declared successful in written (main) examination, arbitrarily or giving any reason to that effect, have been given benefit of the benefit prescribed for woman category of Uttaranchal State. Km. Neelam Bahuguna Roll No. 00465, Anju Shree Juyal Roll No. 03482 and Monika Mittal Roll No. 07658 have been given benefit as mentioned above only with a liberal heart for illegally selecting them as Judicial Officers Uttaranchal.

6. Respondent No. 3-Uttaranchal Public Service Commission (hereinafter referred to as the Commission) has filed counter affidavit. It has been alleged in the said counter affidavit that no irregularity or illegality has been committed in conducting the examination of selection of Civil Judge (Junior Division) in Uttaranchal Judicial Service finally declared on 30-7-2003 either in law, or in procedure. The alleged substantial questions of law, as framed in the writ petition, are absolutely baseless and misconceived.

In reply of question (a) the Respondent No. 3 denied that more than 37% reservation has been given in the selection. The quota of Uttaranchal woman, dependent of freedom fighter and ex Army personnel has been granted as horizontal reservation and they have been adjusted against their category as such it does not increase the fix percentage of reservation. The horizontal reservation has been given according to the Government Order No. 1144/Karmik 2001-53 (1)/2001 dated 18th July 2001 and requisition received from the government on that behalf.

In reply of question (b) the Respondent No. 3 stated that it is wrong to say that 42 candidates have been selected against 35 vacancies. Initially, 35 vacancies were notified as per requisition and as there was a possibility that this number may increase or decrease during the selection process, thus in column No. 2 of the advertisement a specific note was mentioned that the number of vacancies can increase or decrease. After the advertisement since 7 more vacancies arose and the requisition to this effect was also received by the commission, selection of the total number of vacancies i.e. 42 has been made.

In reply of question (c) of the writ petition, the Respondent/Commission submitted that the relevant reservation has been given in the same ratio in the increased number of vacancies as applicable.

The Respondent/Commission in reply of question (d) submitted that those candidates having role numbers 00465, 03482 and 07658 are the candidates of Uttaranchal Woman Category and the same was mentioned in their application forms. At the time of preliminary examination they have not submitted their domicile certificates, as such in the result of preliminary exam they were shown in general category. Subsequently, they submitted their respective certificates and after securing place in merit of Uttaranchal Women Category, they have been declared successful in this category.

Regarding questions (e) and (f) the Respondent/Commission stated that the allegations are baseless and highly objectionable. No malpractice or illegality has been committed in the entire selection process by the Respondent. The Respondent No. 3/Commission replied that the Petitioner appeared in the interview held on 23-7-2003 and could not stand in merit of the successful candidates of the Uttaranchal Women Category. It is submitted that only 5 seats were horizontally reserved against general category of Uttaranchal Women and the Petitioner could not secure place on merit within five seats as such she has not been selected.

The Commission described the position of reservation and granted to the candidates, which is as under:

It is also contended in the counter affidavit filed by the Respondent/Commission that the women candidates selected under this quota has been adjusted in their respective category of vertical reservation. The Commission further stated that the position regarding the reservation as shown by the Petitioner is correct but the position of result as shown therein is wrong and incorrect. It is stated that according to the rule and government orders, if any candidate relating to reserved category secures place on merit in general category, he shall be adjusted in the general category and on that ground the quota of that category shall not be reduced. In the present matter, since the candidates having Roll No. 2041 Ajay Chaudhary, Roll No. 101 Arvind Kumar and Roll No. 175 Varun Kumar have secured place on merit in general category and they have been adjusted in general category as such cannot be treated to have been selected against their category. The Respondent/Commission denied the contents of paragraph 2(11) of the writ petition. However, it is stated that the candidates selected under horizontal category have been adjusted in their vertical category according to the quota. Similarly the three women candidates, namely, Neelam Bahuguna, Anjushri Juyal and Monika Mittal have been adjusted in general category as a candidate of Uttaranchal Women category.

7. The Petitioner also filed the rejoinder affidavit rebutting the stand taken by the Respondent No. 3/Commission. The Petitioner deposed that the contents of paragraph No. 3(a) of the counter affidavit are absolutely incorrect because the total, percentage of the reservation has been very clearly defined in Government Order dated 13th July 2001, where the percentage of reservation for women, ex Army men and handicap persons, freedom fighter have been given horizontally, but in case the percentage of reservation have been fixed in Uttaranchal as not exceeding 37% and keeping in view the position of reservation 26 seats out of total 42 seats must have been given to the candidates of the general category including general category women. But 23 seats have been provided to the general category candidates by which the Petitioner has been deprived of her right of selection.

8. The Petitioner has also filed supplementary affidavit dated 7-6-2005 reiterating the facts mentioned in the writ petition and also in the rejoinder affidavit. The Respondent No. 3/Commission also filed a supplementary counter affidavit dated 12-7-2005 in rebuttal of the same.

9. An application has also been moved by the Petitioner on 01-3-2005 seeking permission to implead Monika Mittal, Anjushri Juyal and Neelam Bahuguna, who are the selected candidates, on which notices were issued to them. In response to the notice Anjushri Juyal, one of the aforesaid three proposed Respondents, has filed her objection by way of counter affidavit denying the facts stated in the writ petition also.

10. We have heard the learned Counsel for the parties and perused the entire material on record. The main argument advanced by the learned Counsel for the Petitioner is that one candidate, namely, Neetu Joshi (Roll No. 12320, Sl. No. 9) was selected by virtue of her own merit as general category candidate but she was counted against eight seats reserved for the Uttaranchal Mahila category and as such one more candidate belonging to Uttaranchal Women general category should have been selected. The learned Counsel for the Petitioner also contended that the action of the Respondents in reducing the seats reserved for Uttaranchal Women general category is absolutely illegal in view of the law laid down by the Apex Court in the case of Indra Sawhney v. Union of India and Ors. reported in 1992 (3) SCC 217 as well as law laid down by the Divisional Bench of this Court in Writ Petition No. 816 of 2002 (M/B), Km. Shikha Agarwal v. State of Uttaranchal and Ors..

11. The learned Counsel for the Respondent No. 3 Commission vehemently contented that since only 8 (eight) seats were reserved for Uttaranchal Women candidates and 5 (five) candidates against this category have been selected by the Commission as general Mahila candidates including Km. Neetu Joshi who had competed on her own merit against unreserved seats, which is evident from the select list dated 31-07-2003 in view of Clause (3) of the Government Order issued by the State of Uttaranchal dated 21st June, 2002. (The said Government Order has also been annexed in the supplementary counter affidavit as Annexure SCA-1 by the Respondent No. 3/Commission). Clause (3) of the aforesaid Government Order provides that, if any women candidate is selected on merit in any public service or post under the State Government, she will be counted against reserved category for women. Since 5 candidates have been selected by the Commission against Uttaranchal Women general category, the Petitioner could not be given appointment against the seats reserved for Uttaranchal Women.

12. The learned Counsel for the Petitioner placed reliance of case law of Hon''ble Supreme Court in the case Indra Sawhney and Ors. v. Union of India and Ors. reported in 1992 Supp (3) SCC 217, in which in para - 811 the Apex Court held as under:

In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.

13. Keeping in view the rule laid down by the apex Court in the aforesaid case, the Division Bench of this Court, of which one of us (P.C. Verma, J.) was a member, passed the interim order on 16-4-2003 in Writ Petition No. 816 (M/B) of 2002, Km. Sikha Agarwal v. State of Uttaranchal and Ors. holding Clause-3 of the Government order dated 21-6-2002 discriminatory in nature. In the said order this Court held as under:

The grievance of the Petitioner is that under the reserved category candidates for women, the women candidates who could have been selected for admission in the general category candidates according to their merit have been selected as a reserved category candidates, thereby the Petitioners have been excluded. The procedure adopted by the Respondent is contrary to the rule laid down by the apex Court In Indra Sawhney''s case 1992 Supp (3) S.C.C. 217 in which it is categorically held by the apex Court that if the reserved category candidate competes in a selection with the genera! category, he/she will not be treated as reserved category candidate. In reply to this argument, learned Counsel for the State of U.P. placed reliance on the Government Order dated 22-10-2002 issued by the State of Uttaranchal nominating the Director General of Medical Health, Uttaranchal, member of the counseling Board and further providing that in case of horizontal reservation In favour of the ladies, the Government Order dated 21-6-2002 shall be applicable. By the said Government order dated 21-6-2002 in Clause 3 it has been provided that if a women candidate is selected on her merit in general category, she shall be treated against the reserved seat for the women candidate.

Clause 3 of the Government Order is contrary to the law laid down by the apex Court in Indra Sawhney''s case, in which it has been specifically held that if a reserved category candidate competes with the general category candidates according to merit, he/she shall not be treated as reserved category candidate.

It is further found from the perusal of the Government Order that this provision has been made only with regard to the reservation given to the women. This provision has not been made applicable in case of other reserved category candidates. Therefore, this clause itself is discriminatory in nature and prima facie we are of the opinion that it can not be sustained in the eye of law.

The aforesaid order of Division Bench of this Court has been complied with by the Department of Medical Health, Uttaranchal but in the present case the Commission has ignored the law laid down by the apex Court in Indra Sawhney''s case.

14. The main controversy relates to horizontal reservation given to Uttaranchal Mahila which is 20% and out of 42 seats, 8 seats were reserved for the Uttaranchal Mahila. The Commission has prepared a list of selected candidates, according to their merit, which is as under:

Following 8 (eight) women candidates have been given reservation in the category of Uttaranchal Women within 20% quota as under:

In general category

In OBC category

In SC category

15. Thus, it is evident that Neetu Joshi (Sl. No. 9, Roll No. 12320), who has secured 561 marks, has been included in the reserved category candidates. She has competed against the unreserved seats on her own merit. Therefore, Neetu Joshi could not have been included in the reserved category candidates amongst the five general category candidates as held by the apex Court In para-811 of Indra Sawhney''s case (supra). It cannot be disputed that principle what is applicable in respect of reserved category candidates of vertical reservation is equally applicable to horizontal reservation.

16. The Petitioner has also secured 498 marks, which are equal to that of last woman candidate, namely, Preetu Rani (Roll No. 12524) selected under the reserved category of Uttaranchal Women (general).

17. Therefore, the Respondent No. 3/Commission fell into error in applying the Government Order dated 21-and-2002 and has committed mistake by including the name of Neetu Joshi within 20% quota reserved for the women candidates who herself has competed on the merit as general category candidate and her name figures at serial No. 9 in the overall merit list. She has secured 561 marks. Therefore, Neetu Joshi is treated to be general category candidate and on account of Neetu Joshi being treated general category candidate, the only seven women candidates remain in the Uttaranchal women category, while according to percentage it should be less by one. Therefore, had the law correctly been applied, the 8th post reserved for the women candidates would have gone to the Petitioner.

18. No other point is pressed by the learned Counsel for the Petitioner in view of the statement made in reply filed by Respondent No. 3/Commission.

19. In view of above, Neetu Joshi, (Sl. No. 9, Roll No. 12320) has wrongly been counted by the Respondent No. 3/Commission against five seats reserved for Uttaranchal Women General Category as she has competed on her own merit as general candidates and as 5th candidate the Petitioner should have been counted for Uttaranchal Women General Category seats.

20. Hence, the writ petition is allowed and the Petitioner is declared selected, as she has secured equal marks to that of last woman candidate (Sl. No. 25 Preetu Rani, Roll No. 12524) selected against reserved seats for Uttaranchal Women. We direct the Respondent No. 3/Commission to recommend for appointment of the Petitioner to the High Court of Uttaranchal within a period of 15 days and the High Court of Uttaranchal is further directed to send the recommendation for appointment of the Petitioner to the State Government thereafter within 15 days as the vacancies for the posts of Civil Judge (Junior Division) are available ,and on receipt of the said recommendation the State Government shall issue appointment letter to Petitioner within 15 days. No order as to costs.