Court No. - 16
Case :- WRIT - A No. - 27039 of 2018 Petitioner :- Km. Sunoya Pandiya Respondent :- State Of U.P. and 4 Others Counsel for Petitioner :- Manoj Kumar Singh Counsel for Respondent :- C.S.C., Abhishek Srivastava
Hon'ble Mrs. Sangeeta Chandra,J.
Order on Stay Application No. 01 of 2018.
1. Heard learned counsel for the petitioner and Shri Abhishek Srivastava who appears for the respondents.
2. Petitioner has filed this writ petition against the advertisement dated 06.10.2018 issued by the Electricity Service Commission, U.P. Power Corporation Limited, U.P. for the post of Assistant Engineers (Trainees) in various categories i.e. Electrical, Computer Science, Electronics and Telecommunication and Civil Engineering on the ground that the aforesaid advertisement does not mention horizontal reservation applicable to female candidates in all fresh recruitments as is given by the Government Order dated 26.02.1999 issued by the Secretary, Karmik Anubhag, Government of Uttar Pradesh.
3. It has been submitted by the petitioner that the petitioner is a B.Tech degree holder in Electrical Engineering and for the purpose of appointment on the post of Assistant Engineer the educational qualifications as prescribed under the U.P. State Electricity Board Services of Engineers Regulations 1970 are possessed by her. Under the Regulation - 6 of the said Regulations of 1970 it has been provided that reservation of the vacancies for Scheduled Caste/Scheduled Tribe and Backward Classes in direct recruitment shall be in accordance with the orders for such reservation in force under the State Government at the time of recruitment. Therefore, in any advertisement for appointment on the post of Assistant Engineer in the Power Corporation, the Corporation is bound to follow the reservation policy of the State Government.
4. It has been submitted that by the Government Order dated 26.02.1999 twenty per cent horizontal reservation for female candidates has been provided in all fresh recruitment to such posts as are governed by the definition of Public Service and Posts mentioned in Section - 2 of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter to referred as "the Act of 1994").
5. It has been submitted by the learned counsel for petitioner that under Section - 2 (c) (iii) of the Act of 1994 the Public Services and Posts have been defined and included Services and Posts in a Board, Corporation or Statutory Body owned and controlled by the State Government or a Government Company as defined under Section - 671 of the Companies Act in which not less than 51% of the paid up share capital is held by the State Government. On the basis of such definition which has also been referred to in Clause - 7 of the Government Order dated 26.02.1999 it has been argued that the Government Order dated 26.02.1999 shall apply automatically for providing 20% horizontal reservation for female candidates in fresh recruitment carried out by the Corporation. On the other hand, the Corporation has deliberately ignored the provisions of this Government Order by issuing the advertisement for recruitment on the post of Assistant Engineers.
6. It has also been submitted that an application under the RTI Act, 2005 was filed by the father of petitioner and in the reply the Public Information Officer in the Department of Energy, a copy of file notings dated 12.12.2014 and 14.12.2014 have been enclosed which say that the Power Corporation is bound by the Government Order dated 26.02.1999 and in view of the clarification issued by the Department of Energy, Anubhag - 2 by its letter dated 26.09.2011, it would be appropriate that the executive instructions be issued for implementation of twenty per cent horizontal reservation for females in all fresh recruitments in anticipation of ex-post facto approval to be given by the Board of Directors in its meeting.
7. In another RTI application the Public Information Officer of the Power Corporation Limited has sent a reply dated 08.11.2016 wherein it has been mentioned that on 21.11.2012 the 93rd Board Meeting had directed for implementation of three per cent horizontal reservation for handicapped persons and twenty per cent horizontal reservation for female candidates. Thereafter, the Managing Director by an executive order dated 15.01.2013 had issued the directions for implementation of twenty per cent horizontal reservation for women in anticipation of ex-post facto approval by the Board of Directors in its forthcoming meeting. However, on 24.06.2013 the Managing Director had recalled the proposal of implementing twenty per cent horizontal reservation proposed to be implemented in the anticipation of Board's approval.
8. It has also been submitted by the learned counsel for the petitioner that as is evident from a perusal of the order dated 15th of January, 2013 issued by the Managing Director and order dated 24th June, 2013 the earlier decision of the Board in its 93rd Meeting has not been recalled and the same decision still exists and ought to be followed by the Corporation.
9. Shri Abhishek Srivastava, on the other hand, has pointed out that the order dated 24th of June, 2013 filed at page No. 54 of the Paper Book clearly shows that it has been issued on the directions of the Board of Directors; whereas, the earlier order dated 15th of January, 2013 has been issued only by the Managing Director in anticipation of ex-post facto approval from the Board of Directors. The order dated 24th of June, 2013 also shows that the ex-post facto approval has been refused in 95th Meeting of the Board of Directors.
10. The learned counsel for respondents has also pointed out the file notings annexed by the petitioner as Annexure - 8 to the writ petition. The pages No. 28 and 29 of the same file of which pages No. 14 and 15 had been annexed by the petitioner as annexure - 4 of the paper book referring to the proposal dated 12.12.2012 clearly show that in the Board's meeting twenty per cent of horizontal reservation for omen has been refused. It is also apparent from Annexure - 8 that the Board had also considered the applicability of 2% reservation for the dependants of freedom fighters in its 107th meeting held on 18th of July, 2014 and had further directed that all the Government Departments be approached to find out whether they are applying 20 per cent horizontal reservation for women as per the Government Order issued from time to time. No information except from one department i.e. Panchayati Raj Department was made available to the Power Corporation in this regard.
11. The learned counsel for respondents has pointed out that the file noting dated 20.10.2015 (Annexure - 8) clearly shows that till date twenty per cent horizontal reservation for women has not been made applicable by any decision of the Board of Directors in fresh recruitments to be carried out by the Corporation.
12. It has also been argued that the Corporation is bound by the provisions of the Act of 1994 and the Act provides for vertical reservation. With regard to the horizontal reservation, however, only Government Orders have been issued, the some have been adopted by the Corporation in its meeting of the Board of Directors, but others have not been adopted. Therefore, 3 per cent horizontal reservation for handicapped persons and 2 per cent horizontal reservation for dependants of the freedom fighters have been made applicable. But 20 % horizontal reservation for women have not been applicable on the recruitments to be carried out by the Corporation. The executive instructions according to the counsel for respondents are not automatically applicable to the Corporation; whereas, the Act of the Legislature is automatically applicable and therefore, the Act of 1994 applies in full force to all recruitments/promotions.
13. The learned counsel for respondents has pointed out the Regulation - 6 of a Regulations of 1970 which only makes a mention with regard to vertical reservation in direct recruitment.
14. The learned counsel for petitioner in rejoinder has argued that under the Article 162 of the Constitution the executive power is co-extensive with that of legislative power and any executive instructions that are issued by the State Government are also binding on the Corporation.
15. This Court having heard the learned counsel for the parties is of the prima facie opinion that there are two different concepts with regard to the vertical reservation and horizontal reservation.The vertical reservation is mandated under the Constitution itself; whereas, with regard to horizontal reservation there is only an enabling provision which has been referred by the Hon'ble Supreme Court in its Constitution Bench judgment in the case of M. Nagraj & Ors Versus Union of India and Ors., AIR 2007 SC 71.
16. It has also settled law that executive instructions can supplement the provisions of Statutory Regulations but they cannot supplant or add something that is not envisaged in the Regulations at all. The Statutory provisions i.e. Act of 1994 have not been amended by the State Government and the horizontal reservation has been provided to the dependants of the freedom fighters and the handicapped persons only because there is a specific Act i.e. U.P. Public Services (Reservation to Physically handicapped Dependants of Freedom Fighters and Ex-servicemen) Act, 1993. It is also applicable to all public servants including that of the Corporation. With regard to the 20 per cent horizontal reservation for the women no such Act of the Legislature is at present available to be automatically binding upon the Corporation even without its conscious adoption by a resolution in the meeting of the Board of Directors.
17. In the result, the application for interim relief is rejected at this stage.
18. The respondents may file their counter affidavit within a period of four weeks. Two weeks' time thereafter is given to the petitioner to file her rejoinder affidavit.
19. List this matter on 1st of February, 2019.
Order Date :- 19.12.2018 LBY