Public Service Commission, Uttaranchal vs Mamta Bisht And Ors.

Mamta Bisht & Ors. ..Respondents

With

Civil Appeal No. 5982 of 2007

State of Uttaranchal ....Appellant

Versus

Mamta Bisht & Ors. ...Respondents

JUDGMENT

Dr. B. S. CHAUHAN, J.

1. These appeals have been preferred by the Public Service

Commission and the State Government of Uttaranchal being

aggrieved of the judgment and order of the High Court of Uttaranchal, Nainital dated 26.10.2005 allowing the Writ

Petition No.780 of 2003 (M/B) and directing the present

appellants to appoint respondent No.1- Ms. Mamta Bisht as

Civil Judge, Junior Division in the State of Uttaranchal.

2. Facts and circumstances giving rise to these appeals are

that Public Service Commission, Uttaranchal (hereinafter

referred to as the `Commission') issued an advertisement dated

7.6.2002 inviting applications for 35 posts of Civil Judge,

(Junior Division) with a stipulation that the number of

vacancies may be increased or decreased. It clarified that the

reservation policy adopted by the State i.e. reservation in

favour of SC/ST/OBC and horizontal reservation in favour of

handicapped, and women etc. belonging to Uttaranchal would

be applicable. Respondent No.1 applied in pursuance of the

said advertisement seeking benefit of reservation in favour of

Uttaranchal women. She qualified in the written examination

and thus faced the interview held by the Commission. The

final result of the selection was declared on 31.7.2003 and it

was evident from the result that respondent No.1 was not

2 selected. Instead of filling of 35 vacancies, recommendations to

fill up 42 vacancies were made as the decision had been taken

in this regard prior to declaration of result. Out of 42 posts, 26

were filled up by general category and 16 by reserved category

candidates. Some women candidates stood selected in general

category while others had been given the benefit of horizontal

reservation being resident of Uttaranchal. Respondent No.1,

being aggrieved preferred Writ Petition No.780 of 2003 (M/B)

in the High Court of Uttaranchal seeking quashment of select

list dated 31.7.2003 mainly on the ground that women

candidates belonging to Uttaranchal had secured marks

making them eligible to be selected in general category and

had it been done so, respondent No.1 could have been selected

in reserved category being a woman of Uttaranchal. It had also

been pleaded in the petition that some of the women

candidates who not only claimed the benefit of horizontal

reservation but have been selected giving the said benefit, did

not submit their respective certificate of domicile at the time of

filling up the application forms but they produced the said

certificate at a later stage and it was accepted. The High Court

3 accepted the first submission of respondent No.1 after

examining the record of selection and came to the conclusion

that last selected woman candidate who was given benefit of

horizontal reservation for Uttaranchal women had secured

marks higher than the last selected candidate in general

category. Thus, the said candidate ought to have been

appointed against the general category vacancy and

respondent No.1 ought to have been offered the appointment

giving her the benefit of horizontal reservation for Uttaranchal

women. Hence, these appeals.

3. Shri S.S. Shamshery, Advocate appearing for the

Commission and Shri Ashok Mahajan, Advocate appearing for

the High Court have submitted that all the vacancies

advertised had already been filled up before the writ petition

could be filed. Not a single successful candidate had been

impleaded as a respondent before the High Court. Thus, the

petition ought to have been dismissed for not impleading the

necessary parties. The High Court did not consider the issue

of acceptance of domicile certificates by the Uttaranchal

4 women at a belated stage nor any finding has been recorded

on the said issue. The High Court failed to consider the

principle that if a reserved category candidate secures more

marks than the last selected candidate in general category,

then he is to be appointed against the general category

vacancy, does not apply while giving the benefit of horizontal

reservation. The writ petition filed by the respondent did not

have any factual foundation or proper pleadings and thus was

not worth entertaining. It is well neigh impossible to

implement the judgment of the High Court at this belated

stage, for the reasons that all the vacancies advertised stood

filled up in 2003. Subsequent to the selection involved herein

appointments have been made several times. Judicial Officers

appointed from the said selection have been promoted as Civil

Judge (Senior Division). Respondent No.1 cannot be given

seniority over and above the officers appointed in subsequent

selections. Thus, appeals deserve to be allowed.

4. On the contrary, Shri R. Venkataramani, learned senior

counsel appearing for respondent No.1 has vehemently

5 opposed the appeals contending that great injustice has been

done to respondent No.1. She has succeeded before the High

Court on the sole ground that the last selected candidate

receiving the benefit of horizontal reservation in favour of

Uttaranchal women could be appointed against the general

category vacancy and the respondent No.1 ought to have been

selected giving her the benefit of horizontal reservation in

favour of Uttaranchal women. There are still some vacancies

from the said selection as two successful candidates have

resigned after joining. Thus, respondent No.1 can be adjusted

against one of such vacancies. Respondent No.1 has been

issued appointment letter dated 17.5.2010 in pursuance of the

impugned judgment, but has not yet been given posting by the

High Court. Thus, she could not join the service. Thus, the

appeals are liable to be dismissed.

5. We have considered the rival submissions made by

learned counsel for the parties and perused the record.

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6. It is settled legal proposition that vacancies over and

above the number of vacancies advertised cannot be filled up.

Once all the vacancies are filled up, the selection process

comes to an end. In case a selected candidate after joining

resigns or dies, the vacancy, so occurred cannot be filled up

from the panel, which stood already exhausted. (Vide Rakhi

Ray & Ors. Vs. The High Court of Delhi & Ors. AIR 2010 SC

932).

However, in the instant case, the advertisement itself

made it clear that the vacancies could be increased and

decreased and before completion of the selection process, a

decision had been taken to fill up 42 instead of 35 vacancies

and reservation policy had been implemented accordingly.

7. In case the respondent No.1 wanted her selection against

the reserved category vacancy, the last selected candidate in

that category was a necessary party and without impleading

her, the writ petition could not have been entertained by the

High Court in view of the law laid down by nearly a

Constitution Bench of this Court in Udit Narain Singh

7 Malpaharia Vs. Additional Member, Board of Revenue,

Bihar & Anr., AIR 1963 SC 786, wherein the Court has

explained the distinction between necessary party, proper

party and proforma party and further held that if a person

who is likely to suffer from the order of the Court and has not

been impleaded as a party has a right to ignore the said order

as it has been passed in violation of the principles of natural

justice. More so, proviso to Order I, Rule IX of Code of Civil

Procedure, 1908 (hereinafter called CPC) provide that non-

joinder of necessary party be fatal. Undoubtedly, provisions of

CPC are not applicable in writ jurisdiction by virtue of the

provision of Section 141 CPC but the principles enshrined

therein are applicable. (Vide Gulabchand Chhotalal Parikh

Vs. State of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai

Patel Vs. Nandlal, Khodidas Barat & Ors., AIR 1974 SC

2105; and Sarguja Transport Service Vs. State Transport

Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).

8. In Prabodh Verma & Ors. Vs. State of U.P. & Ors. AIR

1985 SC 167; and Tridip Kumar Dingal & Ors. Vs. State of

8 West Bengal & Ors. (2009) 1 SCC 768), It has been held that

if a person challenges the selection process, successful

candidates or at least some of them are necessary parties.

9. All the 42 vacancies had been filled up, implementing the

reservation policy. All the women candidates selected from

reserved category indisputably belong to Uttaranchal and none

of them is from another State.

10. The High Court decided the case on the sole ground that

as the last selected candidate, receiving the benefit of

horizontal reservation had secured marks more than the last

selected general category candidate, she ought to have been

appointed against the vacancy in general category in view of

the judgment of this Court in Indra Sawhney Vs. Union of

India, AIR 1993 SC 477, and the Division Bench judgment of

High Court of Uttaranchal in Writ Petition No.816/2002 (M/B)

(Km. Sikha Agarwal Vs. State of Uttaranchal & Ors.)

decided on 16.4.2003, and respondent no.1 ought to have

9 appointed giving benefit of reservation thus, allowed the writ

petition filed by respondent No.1.

11. In fact, the High Court allowed the writ petition only on

the ground that the horizontal reservation is also to be applied

as vertical reservation in favour of reserved category

candidates (social) as it held as under:

"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 candidate and as 5th candidate the petitioner should have been counted for Uttaranchal Women General Category seats."

12. Admittedly, the said Neetu Joshi has not been impleaded

as a respondent. It has been stated at the Bar that an

application for impleadment had been filed but there is

nothing on record to show that the said application had ever

been allowed. Attempt had been made to implead some

successful candidates before this Court but those applications

stood rejected by this Court.

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13. The view taken by the High Court on application of

horizontal reservation is contrary to the law laid down by this

Court in Rajesh Kumar Daria Vs. Rajasthan Public Service

Commission & Ors. AIR 2007 SC 3127, wherein dealing with

a similar issue this Court held as under:

"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, their 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

1 (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." (Emphasis added)

14. In view of the above, it is evident that the judgment and

order of the High Court is not in consonance with law laid

down by this Court in Rajesh Kumar Daria (supra). The

judgment and order impugned herein is liable to be set aside

and all consequential orders become unenforceable and

inconsequential.

Thus, appeals succeed and are allowed. Judgment and

order of the High Court dated 26.10.2005 passed in Writ

1 Petition no.780/2003 (M/B) is hereby set aside. No costs.

.........................................J. (Dr. B.S. CHAUHAN)

.........................................J. (SWATANTER KUMAR)

New Delhi, June 3, 2010

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