Hon'ble Shashi Kant Gupta,J.
(Delivered by R.K.Agrawal, J.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner prays for issue of a writ order or direction in the nature of certiorari quashing the office memorandum dated 22.10.2007 issued by the Secretary, (Appointment), Anubhag-4, U.P. Government, Civil Secretariat, Lucknow, respondent no.1, filed as Annexure 8 to the writ petition as also a writ, order or direction in the nature of mandamus commanding the respondents to consider the claim of the petitioner for her appointment on the post of Civil Judge (Junior Division) on unfilled vacancies under General Woman Category in 2003 examination in accordance with law and to appoint the petitioner on the said post and other consequential reliefs.
FACTS OF THE CASE:
Briefly stated the facts giving rise to the present writ petition are as follows:
The U.P. Public Service Commission, Allahabad (hereinafter referred to as the Commission) issued an advertisement No A-2/E-1/2003 published in the Employment News dated 22/28.11.2003 inviting applications for 347 posts of Civil Judge (Junior Division). In the advertisement so issued 73 vacancies were reserved for Scheduled Castes candidates of U.P., 07 vacancies were reserved for Scheduled Tribes candidates of U.P., 94 vacancies were reserved for Other Backward Class candidates of U.P. and 173 vacancies were allotted to General candidates. It was further mentioned in the advertisement that two percent reservation benefit shall be given to Dependants of Freedom Fighter candidates of U.P. and one percent reservation benefit shall be given to Ex-Army Personnel of U.P. according to the provisions of G.O. No. 18/1/95-Ka-2/1995T.C..-1/97 dated 20.9.1997. So far as reservation for women was concerned it was provided that according to Rule 8 of U.P. Judicial Service Rules, 2001 (hereafter referred to as the Rules), the reserved vacancies for woman of U.P. shall be subject to the decision in S.L.P. No. 15768 of 2001 (Manjula Sircar Vs. Harendra Bahadur Singh) and other connected appeals by the Hon'ble Supreme Court.
The petitioner being eligible and fully qualified for the post of Civil Judge (Junior Division) also applied. She qualified in the preliminary examination conducted by the Commission and thereafter appeared in the main written examination and was declared successful. An interview letter was issued by the Commission informing the petitioner that the interview would be held on 21st April, 2005. The petitioner appeared in the interview. The Commission declared the final result on 2nd May, 2005 and the name of the petitioner was placed at serial no. 177 in the select list. According to the petitioner she was waiting for the appointment letter to be issued in her favour but in the meantime some of the candidates challenged the result of the final selection before this Court by means of Civil Misc. Writ Petition No. 40058 of 2005 (Dinesh Pratap Sngh and another vs. State of U.P. and others) in which this Court directed that the candidates who were less than upper age limit on 1st July, 2003 would also be eligible to appear at 2003 recruitment, however, the candidates who have crossed upper age limit according to their categories on 1st July, 2003 would not be eligible under second proviso to Rule 10 of the Rules. The matter was taken up before the Hon'ble Supreme Court in S.L.P. No. (C) 22523 of 2005 later on converted in Civil Appeal No. 1867 of 2006 (Malik Mazahar Sultan vs. U.P. Public Service Commission). The Hon'ble Supreme Court vide judgment and order dated 3rd April, 2006 allowed the appeal and had held that age requirement therein would be as on 1st July, 2002 and not as on 1st July, 2004 in view of Rule-4 (m) read with Rule 10 of second proviso of the Rules. Pursuant to the decision of the Hon'ble Supreme Court in Malik Mazahar Sultan reported in (2006) 9 SCC 509, the select list was revised. According to the petitioner the total number of 10 candidates including 2 candidates whose result were withheld earlier were included in the revised select list and 8 candidates from earlier select list were excluded form the select list. The name of the petitioner has been excluded from the select list after declaration of the revised select list and recommendations were sent by the Commission to the State Government for appointment of the candidates. The State Government in consultation with this Court issued appointment letters to all 347 candidates but according to the petitioner only 342 candidates have turned up and joined the post. One Tanya Singh (Roll No. 012815) resigned within two months of her joining from the post of Civil Judge (Junior Division) due to her selection in I.A.S.. Another selected candidate, namely, Ritu Sharma (Roll No. 016831) did not join her post at all because she was already a P.C.S. Officer in the State of Uttar Pradesh.
It is the case of the petitioner that as two posts in General Woman Category fell vacant and she was in the select list which was earlier declared by the Commission and subsequently due to reivison of result after the decision of Hon'ble Supreme Court in Malik Mazahar Sultan (supra), in all probability she was placed next to the last selected woman candidate in General Category and was, therefore, entitled for her recommendation by the Commission and subsequent appointment by the State of Uttar Pradesh, respondent no.1 on the post of Civil Judge (Junior Division). On this premise she represented before the Commission and the State Government and when no step was taken by the respondents to fill up the unfilled vacancies, she approached this Court by filing Civil Misc. Writ Petition No. 51386 of 2006 which was disposed of finally vide judgment and order dated 15.9.2006 with the following directions:
"In view of the above, we dispose of the writ petition with an observation that in case there remained some unfilled vacancies from the said selection of 2003 for the post of Civil Judge (Junior Division), and the State Government requisitions the names from the Public Service Commission, the same may be sent in accordance with law, if the select list is still alive and the unfilled vacancies, if any, be filled up in accordance with law."
The petitioner sent a certified copy of this Court's order dated 15.9.2006 by registered post to the respondents for taking appropriate action but no heed was paid. She was left with no other option but to approach this Court by filing Contempt Application No. 3144 of 2007 in which this Court issued notice on 3rd September, 2007 to the Appointment Secretary of the State Government. The State Government decided the petitioner's representation vide Office Memorandum dated 22.10.2007 and filed the same along with counter affidavit in the contempt application in which date was fixed for 26.10.2007. In the Office Memorandum dated 22.10.2007 the State Government after getting the comments from the Registrar General of this Court as also from the Commission had held that there is no vacancy in the cadre of Civil Judge (Junior Division) pursuant to the examination held in the year 2003 and as the name of the petitioner does not find place in the list of 20 persons sent by the Commission for issuance of the appointment pursuant to the direction given by the Hon'ble Supreme Court, the claim of the petitioner is not tenable. The petitioner sought information from the Commission under the Right to Information Act regarding the marks obtained by her. The Commission had informed that she had obtained 669 scaled marks whereas last selected candidate under General Woman Category obtained 670 scaled marks. She had obtained 494 actual marks whereas last selected candidate in General Woman Category, Ms. Archana Gupta, had obtained 481 actual marks. The petitioner, therefore, claimed the benefit of the decision of the Hon'ble Supreme Court in the case of Sanjay Singh v. U.P. Public Service Commission, Allahabad ( AIR 2007 SC 950 ) . In any event, the petitioner claims that as Ms. Ritu Sharma, who had been selected in General Woman Category, did not join the post, the vacancy does exist and she being the next person in that category ought to be given appointment as the select list is still alive.
A supplementary affidavit has been filed by the petitioner in which it has been stated that according to the horizontal reservation 35 posts for Woman General Category, 19 posts for Woman in Other Backward Class and 14 posts for Woman in Scheduled Caste category and one post for Woman Scheduled Tribe category has to be filled up. Only 68 woman candidates have been selected in revised result declared by the Commission. It has further been stated that in all 38 General Woman candidates have been selected out of which 34 General Woman category candidates were selected under 20% woman category quota and remaining 4 woman candidates have been selected according to their merits. One woman candidate, namely, Ms. Ritu Sharma (Roll NO. 016831), who had been selected in General Woman category, did not join the post and her candidature has been cancelled vide Office Memo. Dated 21st February, 2008. One post in General Woman Category, therefore, remain unfilled for which the petitioner is entitled to be selected/appointed. It has further been mentioned that pursuant to the decision of the Hon'ble Supreme Court in Malik Mazahar Sultan (supra) the select list was revised and two General Woman Candidates were excluded from the select list but in their place only one General woman candidate and another Other Backward Class woman candidate were included. According to the petitioner two General woman candidates ought to be included in the revised select list and if that is done the petitioner is entitled for being selected/appointed.
A counter affidavit has been filed by Sri A.K.Mukherjee, Officer on Special Duty, High Court, Allahabad on behalf of respondent no.2. It the counter affidavit it has been stated that no benefit can be given to the petitioner on the basis of the decision of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) as the Hon'ble Supreme Court itself has restricted the relief granted therein to such persons who have approached this Court and the Hon'ble Supreme Court before 31st August, 2005 and admittedly the petitioner had not approached this Court before the cut off date, i.e. 31st August, 2005. The vacancies which have occurred on account of the candidates who have not joined or on account of resignation of Ms. Tanya Singh and Mr. Dharmendra Rana have been filled up from amongst the candidates found eligible in terms of the decision of the Hon'ble Supreme Court in the case of Sanjai Singh and there remains no vacancy in the examination of 2003 which can be filled up. It has also been stated that under the Rules there is no provision for making any waiting list and it only provides for preparation of a final list of the selected candidates. In the supplementary counter affidavit filed by Sri B.L.Yadav, Officer on Special Duty (Litigation), on behalf of respondent no.2 it has been stated that in the recruitment year 2003 out of 347 vacancies notified, 4 selected candidates did not join. Pusuant to the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh (supra), the State Government forwarded a list of 20 selected candidates for posting out of which 4 existing vacancies for the recruitment year 2003 were utilised and 16 vacancies of the recruitment year 2006 were added to accommodate the remaining selected candidates and the vacancy for the year 2006 was reduced by 16 and therefore, no vacancy survives for giving appointment to the petitioner.
A chart giving the breaking up of 363 appointments made on the post of Civil Judge (Junior Division) pursuant to the advertisement dated 22/28-11-2003 and the order dated 09.01.2007 passed by the Hon'ble Supreme Court has also been filed by the High Court. In the said chart the breakup given is as follows:
Sri Pandey, learned counsel for the petitioner submitted that the State Government has provided 20% reservation for woman candidates and as in the open General category the petitioner had obtained 669 scaled marks whereas the last selected candidate in the General woman category had obtained 670 scaled marks and two woman candidates, namely, Ms. Tanya Singh (Roll No. 012815) and Ms. Ritu Sharma (Roll No. 016831) did not join the post, the appointment ought to have been given to the petitioner. He further submitted that the petitioner had obtained actual 494 marks before scaling whereas last candidate in General woman category, Ms. Archana Gupta, had obtained 481 actual marks, therefore, in view of the decision of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) , the petitioner ought to have been given selection and appointment. He further submitted that 20% reservation provided for woman i.e. 35 posts reserved for woman candidates have not been filled up in the open General category as out of total 38 General woman candidates having been selected only 34 General woman candidates have been selected in the 20% woman category quota and 4 were selected according to their merit, thus, one post in the reserved category out of 4 vacant post ought to have been given to the petitioner. In support of his plea he has relied upon the following decisions:
1.Indra Sawhney vs. Union of India (1992 Supp. (3) SCC 217);
2.Jai Narain Ram vs. State of U.P. an others ( AIR 1996 SC 703;
3.Ved Prakash Tripathi vs. State of U.P. (2001) 1 UPLBEC 462;
4.D.Singh and others vs. State of U.P. and others (2001) 2 UPLBEC 1432);
5.State of U.P. vs. Ram Swaroop Saroj (2002) 2 UPLBEC 956 (SC);
6.Trilok Nath Mishra and others vs. State of U.P. (2002) 3 UPLBEC 2675;
7.Sheo Shyam and others vs. State of U.P. 2005(10 SCC 314 and
8.Sanjai Singh and another vs. U.P. Public Service Commission (2007) 2 UPLBEC 1068 (SC).
Sri Sthalekar, learned counsel appearing for the High Court submitted that under the scheme of reservation provided by the State Government to woman i.e. 20%, is only to ensure that in the selection at least 20% candidates selected are women. If any woman candidate has been selected in any of the category on her own merit than that would also be counted towards 20% and only if the total number of woman is less than 20% of the total selected candidates, then woman candidates having secured lesser marks would be selected in that category. However, in the present case a total number of 73 woman candidates have already been selected which is more than 20% of the notified vacancy of 347 but is equal to 20% of the total appointment made after giving into effect and applying the judgment and order dated 9th June, 2007 passed by the Hon'ble Supreme Court in the case of Sanjay Singh (supra) as total 363 appointments have been made. He further submitted that in the General category 43 woman candidates have been selected which is more than the quota of 20% horizontal reservation available under the open General category of woman. He further submitted that the petitioner cannot be granted benefit of the direction contained in the judgment of the Hon'ble Supreme Court in the case of Sanjai Singh as she had not approached this Court before 31st August, 2005. He thus submitted that the petitioner is not entitled for any relief.
Sri Baghel learned senior counsel appearing for the Commission supported the arguments advanced by the learned counsel appearing for the High Court.
STATUTORY PROVISIONS:
Rule 8 of the Rules provides for reservation in the appointment of Civil Judge (Junior Division) and Civil Judge (Senior Division) which, for ready reference, is reproduced below:
"8. Reservation. Reservation to posts in the service for the members of Scheduled Castes, Scheduled Tribes and other categories shall be in accordance with the provision of the law prescribing reservation for Scheduled Castes, Scheduled Tribes and other categories."
The State Government vide order dated 26th February, 1999 had provided for reservation for women in public services under the State which, for ready reference, is reproduced below:
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"5. According to Rule 8 of U.P. Judicial Service Rules, 2001 the reserved vacancies for woman of U.P. shall be subject to the decision in S.L.P. No. (1) 15768/ 2001 (Manjula Sircar Vs. Harendra Bahadur Singh) (2) No. 18822/2001 U.P.State vs. Harendra Bahadur Singh, (3) No. 628/2001 Km Shivani Jaiswal vs. Harendra Bahadur Singh (4) No. 18824/2001 U.P. State vs. Harendra Bahadur Singh and (5) No. 18/2001 Shivani Jaiswal vs. Harendra Bahadur Singhby the Hon'ble Supreme Court."
POINTS FOR DETERMINATION:
From the pleading of the parties and the submission made by the learned counsel for the parties, the following points arise for determination in the present case:
1.What is the position regarding reservation for woman under the advertisement issued by the Commission?
2.Whether reservation for woman is applicable in selection and appointment of Civil Judge (Junior Division) under the G.O. Dated 26.2.1999?
3.Whether the horizontal reservation for woman provided under the G.O. Dated 26.2.1999 is restricted to each of the categories or is general in nature?
4.Whether the petitioner is entitled to any relief in the category of reservation for woman?
DISCUSSIONS:
Before taking up the above mentioned points for determination, we feel it proper to deal with the various decision cited at the Bar and also other relevant decisions on the subject:
In the case of Indra Sawhney (supra) the Hon'ble Supreme Court in paragraph 812 of the report has held as follows:
"812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A. little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."
It has further held that for the purpose of applying the rule of 50%, a year should be taken as the unit and not the entire strength of the cadre, service or the unit, as the case may be.
In the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Ors. (2007) 8 SCC 785 the Hon'ble Supreme Court has held as follows:
"7. A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. Stat of U.P. thus : (SCC p.185, para 18) "The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)" (emphasis supplied)
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, there number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)"
In Special Appeal No. 1120 of 2010 (Rajeev Kumar vs. State of U.P. and others) a Division Bench of this Court following the decision of Rajesh Kumar Daria (supra) has held that horizontal reservation is to be given category wise and if there is any shortfall, the requisite number of reserved category females candidates shall have to be taken by deleting the corresponding number of candidates from bottom of the list relating to such category. This Court has held as follows:
"The decision of the Apex Court, coupled with the conditions of advertisement, clearly demonstrate that horizontal reservation has to be given category-wise. Not only this, the manner of implementing the rule of reservation vertically and then horizontally has been very succinctly explained in paragraph 9 of the judgment in Rajesh Kumar Daria's case (supra). The relevant part of the judgment has been highlighted by us in bold, which leaves no room for doubt that only if there is any shortfall, the requisite number of reserved category females candidates shall have to be taken by deleting the corresponding number of candidates from bottom of the list relating to such category.
The rule, therefore, does not allow the respondent State Government to extend the benefit of reservation even beyond 20 percent in the respective categories, as a special reservation for women. It cannot be a tool or device to recruit candidates of the female category, even if they are less meritorious, in order to complete such horizontal reservation for which candidates are not available in other categories. There cannot be a pooling of female category candidates in excess of 20 percent against the strength of a category, as horizontal reservation in the instant case is compartmentalized.
It is, however, something different that if the female category candidates are more meritorious than the male category candidates, then they would be entitled to be accommodated in their respective categories according to their merit, but again their merit will have to be higher than the male category candidates. Women can compete with men for the balance of 80 percent seats within their category on merit but not with the aid of the logic of saturating the unfilled seats of 20 percent horizontal reservation in other categories. The reservation has to be spread evenly for the representation of female category candidates to the extent of minimum of 20 percent in each category."
In the case of Jai Narain Ram (supra) the Hon'ble Supreme Court has held that right to seek appointment to a post under Article 14 read with Article 16(1) and (4) is a constitutional right to equality and the State failed to perform its constitutional duty when it does not requisition to Public Service Commission to recommend the next qualified persons to the posts reserved for Scheduled Caste in case the selected persons does not join the service.
In the case of Ram Swaroop Saroj (supra) the Hon'ble Supreme Court declined to interfere in the relief granted by the High Court on the ground that the period of one year lapsed during the pendency of the writ petition and select list had elapsed.
In the case of Ved Prakash Tripathi (supra) a Division Bench of this Court has held that the petitioners cannot be made to suffer due to the fault of the respondents. This Court has found that all the seven candidates included in the list dated 20th January, 1999 though effered appointments did not join and the State Government was under an obligation to cancel the names of seven candidates who did not join and call for equal number of candidates but instead it cancelled the candidatures of only three candidates and called for three additional names from the waiting list for appointment. The Commission forwarded four additional names and subsequently the State Government cancelled the candidatures of remaining four candidates and requested the Commission to send four additional names from the waiting list of 1996 examination. The Commission declined on the ground that in the meantime Assistant Prosecuting Officer Examination, 1997 had been held. This Court came to the conclusion that the vacancies which arose as a result of cancellation of four candidates were not included in the subsequent examination and the petitioners before it cannot be made to suffer for no fault of theirs. In these circumstances the Court directed the Commission to send four additional names from the waiting list of 1996 examination to the State Government for issuance of appointment letters.
In the case of Dvijendra Singh (supra) this Court has held that as the five persons who have joined the post but later resigned within one year of the lift of the panel, the next five persons in accordance with merit as per the select list are entitled for appointment. The Court has applied the principle laid down in the case of Ved Prakash Tripathi (supra).
In the case of Trilok Nath Mishra (supra) this Court has held that if the vacancies continue to exist on account of non-joining of candidates and the vacancies relate to the same recruitment year and arose before the select list could be finalised the candidates who claimed to have secure marks, next to the selected candidates, had a right to be considered for appointment on the said vacancies.
In the case of Sheo Shyam (supra) the Hon'ble Supreme Court has held that it would be inequitable and unjust to compute the one year period from the date when the first recommendation was made by the Commission and the period should be reckoned from the last date when the recommendation was made.
In the case of Sanjay Singh (supra) the Hon'ble Supreme Court has held that the scaling system adopted by the Commission was unsuited in regard to Civil Judge (Junior Division) Examination and directing moderation will be prospective and its application and will not affect the selection and appointments already made in pursuance of the 2003 examination. However, in so far as the petitioners before it were concerned, the Hon'ble Supreme Court issued directions to do complete justice. The directions issued by the Hon'ble Supreme Court are reproduced below:
"42. However, in so far as the petitioners are concerned, we deem it proper to issue the following directions to do complete justice on the facts of the case :
a) If the aggregate of raw marks in the written examination and the marks in the interview of any petitioner is less than that of the last selected candidate in the respective category, he will not be entitled to any relief (for example, the petitioners in WP(C) No. 165/2005 belonging to the Category 'BC' have secured raw marks of 361 and 377 respectively in the written examinations, whereas the last five of the selected candidates in that category have secured raw marks of 390, 391, 397, 438 and 428 respectively. Even after adding the interview marks, the marks of the petitioners in W.P. [C] No.165/2005 is less than the marks of the selected candidates).
b) Where the aggregate of raw marks in the written examination and the interview marks of any petitioner, is more than the aggregate of the raw marks in the written examination and interview marks of the last selected candidate in his category, he shall be considered for appointment in the respective category by counting his appointment against future vacancies. (For example, we find that petitioner Archna Rani, one of the petitioners in WP (C) No. 467/2005 has secured 384 raw marks which is more than the raw marks secured by the last five selected candidates [347, 337, 336, 383 and 335] under the SC category and even after adding the interview marks, her marks are more than the five selected candidates. Hence, she should be considered for appointment). This relief will be available only to such of the petitioners who have approached this Court and the High Court before 31st August, 2005."
The directions were made applicable to such of the petitioners who have approached the Hon'ble Supreme Court or the High Court before 31st August, 2005.
From the aforesaid decisions the following principles emerge:
(i) Vertical reservations cannot exceed 50% in an year. However, the horizontal reservations cut across the vertical reservations and persons selected against horizontal reservations are to be adjusted in the appropriate category by making necessary adjustment and the percentage of reservations in favour of the specified categories, Scheduled Casts, Scheduled Tribes, Other Backward Classes of citizens remain the same.
(ii) Provision for reservation made for woman is a horizontal reservation.
(iii) The proper and correct course is to fill up the General category quota on the basis of merit and then fill up each of the reserved category quotas of Scheduled Castes, Scheduled Tribes, Other Backward Classes and thereafter find out how many candidates belong to special reservations i.e. horizontal reservations have been selected on the above basis. If the quota fixed for horizontal reservation is already satisfied, in case it is an overall horizontal reservation, no further question arises and if it is not satisfied, the requisite number of special reservation candidates under the horizontal reservation have to be taken and adjusted/accommodated against their respective categories by deleting the corresponding number of candidates therefrom.
(iv) If it is a case of compartmentalised horizontal reservation, then this is to apply separately to each of the vertical reservation. In this way entire reservation quota will be intact and available to all concerned.
(v) While determining the over all percentage of horizontal reservation candidates selected on merits in the respective categories have to be included and the minimum percentage of horizontal reservation granted to a particular category like 20% for women in this case has to ensured. If the number of women candidates exceed 20% and they have been selected on their own merit then their number shall not be reduced.
(vi) Right to seek appointment to a post is constitutional right to equality and the State fails to perform its constitutional duty when it does not requisition to Public Service Commission to recommend the next qualified persons to the posts reserved for particular caste and category in case the selected persons does not join the service.
(vii) No one should be made to suffer for no fault of his if the vacancy arises as a result of cancellation of candidature of some candidates.
(viii) If some persons who have joined the post but later resigned, the next persons in accordance with merit as per the select list are entitled for appointment.
(ix) The period of one year should be reckoned from the last date when the recommendation was made.
(x) The benefit of the decision of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) is applicable to all the petitioners who have approached the High Court or the Supreme Court before 31st August, 2005.
Point No.1.
From the advertisement dated 22/28 November, 2003 published by the Commission we find that regarding reservation for women it was specifically mentioned that the reserved vacancy for woman shall be subject to the decision in S.L.P. No. (1) 15768/ 2001 (Manjula Sircar Vs. Harendra Bahadur Singh) (2) No. 18822/2001 U.P.State vs. Harendra Bahadur Singh, (3) No. 628/2001 Km Shivani Jaiswal vs. Harendra Bahadur Singh (4) No. 18824/2001 U.P. State vs. Harendra Bahadur Singh and (5) No. 18/2001 Shivani Jaiswal vs. Harendra Bahadur Singh by the Hon'ble Supreme Court. 20% horizontal reservation to woman has been provided by the State Government vide Government order dated 26th February, 1999. In the matter of providing reservation for women to the extent of 20% in the appointment and selection held under the U.P. Nyayik Sewa Civil Judge (Junior Division) 1999 a challenge was made before this Court by filing writ petition by a candidate selected but could not be appointed because of 20% reservation has been given to the women candidates. A Division Bench of this Court vide judgment and order dated 27th July, 2007 had held that there could not be any reservation for women in the said selection as there had been no consultation at all with the High Court for providing such reservation. The matter was taken up by the selected women candidates who were beneficiaries of 20% horizontal reservation given to women candidates by filing afore mentioned special leave petitions before the Hon'ble Supreme Court. The Hon'ble Supreme Court in Civil Appeal No. 6429 of 2002 Manjula Sircar and others vs. Harendra Bahadur Singh and others along with other connected civil appeals vide judgment and order dated 13th September, 2007 [( 2007) 7 SCC 488] had upheld the judgment and order passed by this Court. However, the Hon'ble Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution of India, directed that appointments already given to the women candidates shall not be disturbed and their services shall not be terminated but for the purposes of the seniority they shall be placed just below the 12 selected men candidates referred to in the interim order dated 27.9.2009. In the present case we find that as in the advertisement published by the Commission it was specifically mentioned that reservation for woman candidates shall be subject to the decision of the Hon'ble Supreme Court in the case of Manjula Sircar (supra) and four others and the Hon'ble Supreme Court has held that benefit of 20% reservation for women is not available, we are of the considered opinion that the petitioner is not entitled to claim benefit of reservation provided for women under the advertisement.
Point No.2.
We may mention here that U.P. Nyayik Sewa Civil Judge (Junior Division) Examination 1999 was conducted when the U.P. Nyayik Sewa Niyamawali, 1951 was in force. In the said Niyamawali, Rule 7 provided for reservation for Scheduled Castes. However, reservation in respect of Scheduled Castes, Scheduled Tribes and Other Backward Classes in public services in the State of Uttar Pradesh has been made applicable by the Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (U.P. Act No. 4 of 1994). Rule 8 of the Rules specifically provides for reservation to the post in the services for the members of Scheduled Castes, Scheduled Tribes and other categories in accordance with the provisions of law. 20% horizontal reservation for women in public services in the State of Uttar Pradesh has been provided by the State Government vide Government Order dated 26th February, 1999. The power to issue Government Order dated 26th February, 1999 is relatable to Article 162 of the Constitution of India and thus, it would be a reservation prescribed by law and the 20% horizontal reservation for women candidates would be applicable in U.P. Judicial Service Civil Judge (Junior Division) Examination, 2003, held by the Commission.
Point No.3.
Applying the principles laid down in the aforementioned cases regarding horizontal reservation to the facts of the present case, we find that from a reading of the Government Order dated 26th February, 1999 already reproduced herein before, 20% reservation to woman candidates have been given horizontally. Clause (1) of the said Government Order provides for reservation in the initial appointment and not in the case of post to be filled up by way of promotion. Clause (2) of the said Government Order provides that reservation shall be horizontal in nature and the reservation provided for women candidates shall be adjusted in the category to which they belong. Clause (3) of the said Government Order provides that if a woman candidate has been selected on merit in that case she will be counted and adjusted in the reservation provided for that post. Clause (4) of the said Government Order provides that in any direct recruitment if requisite number of women are not available then it will be filled up by eligible male candidates and shall not be carried forward. Clause (5) of the said Government Order provides that a woman candidate should fulfill the requisite qualification and eligibility under the relevant service rules.
Therefore from a conjoint reading of the various clauses of the aforementioned Government Order dated 26th February, 1999 it is clear that even though in the opening part of the Government Order the State Government has provided 20% reservation for women but by Clause (2) of the Government Order the reservation for woman has been made applicable in that category itself and if a woman candidate is selected on her own merit, her selection would be counted in the number of selected women candidates.
Point No.4:
Applying the principles laid down in the aforesaid cases to the facts of the present case, we find that the total number of vacancies advertised for the post of Civil Judge ( Junior Division) Batch 2003 was 347 out of which 343 posts have been filled form the select list and 20 posts have been filled in pursuance of the direction given by the Hon'ble Supreme Court in the case of Sanjay Singh (supra). Thus, a total 363 appointments have been made out of which 163 candidates were from General Category, 119 candidates were from Other Backward Classes, 75 candidates belonged to Scheduled Castes and 6 candidates belonged to Scheduled Tribes. A total number of 73 woman candidates were appointed which is 20% of the total vacancy. 17 woman candidates were appointed under Other Backward Category, 13 woman candidates were appointed under the Scheduled Caste category and 43 woman candidates were appointed under General category. The petitioner claims appointment under General category. Out of 363 candidates appointed on the post of Civil Judge (Junior Division) pursuant to the examination held in the year 2003 only 182 posts were to be filled from unreserved category, i.e. General category out of which 20% comes to 36, the minimum number for which woman candidates could have claimed appointment as against which 43 woman candidates have already been appointed.
The contention of the petitioner that she has obtained 669 scaled marks whereas the last selected general woman candidate who has been appointed has secured 670 scaled marks and two woman candidates Miss Tanya Singh (Roll No. 012815) and Miss Ritu Sharma (Roll No. 016831) did not join the post, the appointment ought to have been given to the petitioner is wholly misconceived. As already mentioned hereinbefore that there are seven woman candidates in excess of 20% reservation provided for women under the General category and, therefore, even if the two woman candidates did not join the post, the petitioner cannot claim any appointment under the reservation quota of General woman category. The plea of exhausting of waiting list would not be of any help to the petitioner as against 343 vacancies notified appointments of 363 candidates have already been made.
We may further mention here that the petitioner is not entitled to claim the benefit of the decision of the Hon'ble Supreme Court in the case of Sanjay Singh (supra) wherein the Apex Court has held the scaling system adopted by the Commission to be inappropriate and unsuitable for evaluation of the answer scripts in the Civil Judge (Junior Division) Examination but had restricted the benefit of the judgment to only those petitioners who have approached the High Court or the Supreme Court before 31st August, 2005. Admittedly the petitioner had neither approached this Court nor the Hon'ble Supreme Court before 31st August, 2005 challenging the scaling system adopted by the Commission.
In view of the foregoing discussions, we do not find any merit in this petition which is hereby dismissed. There shall, however, be no order as to costs.
Dt. January 20, 2012.
samz.