Court No. - 37
Case :- WRIT - A No. - 16411 of 2021 Petitioner :- Aruna Chaudhary Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Surendra Prasad Mishra Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
Petitioner belongs to OBC category and is aggrieved by denial of horizontal reservation to him for appointment to the post of Constable in U.P. Police, although he ahs scored higher marks than the last selected woman candidate in open category, who has been extended the benefit of horizontal reservation. It is admitted to the respondents vide their counter affidavit that cut off marks for Constable in Civil Police (open female category) is 144.942 marks. The petitioner has scored marks above the aforesaid cut off as she has scored 162.441 marks.
According to respondents having claimed benefit of reservation in the OBC category, the petitioner was not entitled to benefit of horizontal reservation available to open female candidates. Petitioner has otherwise not secured marks above the cut off for OBC candidates.
Issue as to whether benefit of horizontal reservation would be available to an OBC candidate has been considered by the Supreme Court in a recent decision rendered in Saurav Yadav and others Vs. State of Uttar Pradesh and others, in Special Leave Petition (Civil) No.23223 of 2018, decided on 18.12.2020. The Supreme Court after examining the issue extensively has observed as under in para 37:-
"37. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in 'Open/General Category', the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us. However, considering the facts that those selected candidates have actually undergone training and are presently in employment and that there are adequate number of vacancies available, we mould the relief and direct as under:-
a) All candidates coming from 'OBC Female Category' who had secured more marks than 274.8928, i.e. the marks secured by the last candidate appointed in 'General Category? Female' must be offered employment as Constables in Uttar Pradesh Police.
b) Appropriate letters in that behalf shall be sent to the concerned candidates within four weeks.
c) If the concerned candidates exercise their option and accept the offer of employment, communications in that behalf shall be sent by the concerned candidates within two weeks.
d) On receipt of such acceptance, the codal and other formalities shall be completed within three weeks.
e) Letters of appointment shall thereafter be issued within a week and the concerned candidates shall be given appropriate postings.
f) For all purposes, including seniority, pay fixation and other issues, the employment of such candidates shall be reckoned from the date the appointment orders are issued.
g) The employment of General Category Females with cut off at 274.8928 as indicated by the State Government in its affidavits referred to in paragraphs 5 and 8 hereinabove are not to be affected in any manner merely because of this judgment."
In the facts of the present case since the petitioner has obtained marks above the cut off fixed for female candidates in open category, the denial of her claim for horizontal reservation for women would clearly be arbitrary and in the teeth of the law laid down by the Supreme Court in Saurav Yadav (supra).
Learned counsel for the petitioners states that vacancies otherwise exists since large number of candidates have been declared unfit on physical parameters, at the stage of medical examination, and petitioners' claim for appointment can always be considered even without disturbing the Constables already appointed.
In view of the materials placed on record, as also for the reasons recorded above, this Court is of the considered opinion that petitioner having scored marks above the cut off fixed for female (open category candidates) cannot be denied consideration for appointment only for the reason that she cannot be given benefit of reservation twice. The Full Bench judgment of this Court in the case of Ajay Kumar Vs. State of U.P. and others, reported in (2019) 5 ALJ 466, which endorsed such view, has not been approved in Saurav Yadav (supra). In paragraph 23 of the Supreme Court judgment in Saurav Yadav (supra), the Full Bench judgment of this Court has been referred to as the "second view". In paragraphs 31 and 32 the Supreme Court has observed as under:-
"31. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.
32. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open/General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court."
Petitioner, therefore, having scored higher marks than the female (open) candidates can not be discriminated by denying her the benefit of horizontal reservation for women only because she has claimed benefit of reservation as OBC candidates. Petitioner, accordingly, is entitled to be considered for appointment to the post of Constable in view of the law laid down by the Supreme Court in Saurav Yadav (supra). Such consideration shall be made within a period of three months from the date of presentation of a copy of this order.
With the above observations/directions, writ petition stands disposed of.
(Alok Mathur, J.) Order Date :- 20.12.2021/Ravi/-