9911796707
TMI Blog2010 (1) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1. Leave granted. 2. These Appeals are directed against the common Division Bench judgment of the High Court of Judicature at Allahabad dated 22.12.2006. By the aforesaid judgment, the High Court decided number of Appeals directed against the common judgment of the learned Single Judge in Writ Petition No. 25328 of 2001 and a number of other connected writ petitions. 3. The appellants had assailed the judgment dated 22.5.2002 of the learned Single Judge to the extent that the Writ Petition Nos. 25328, 26847, 36411, 28836, 26177, 34039, 4630, 32763, 27849, 27060, 29069 of 2001 and 47528 of 2002 had been dismissed whereby the petitioners-appellants were seeking a writ in the nature of mandamus directing the respondents to send them for training to the post of Sub Inspectors. In some of the writ petitions, a prayer had also been made for quashing the entire select list which was also declined by the learned Single Judge. In Special Appeal No. 592 of 2006, the appellant who was respondent had assailed the aforesaid judgment of the learned Single Judge only to the extent the Single Judge had issued a writ in the nature of mandamus to the respondent-appellants to fill up vacancies a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge and Mental Aptitude Test consisting of 400 marks. Thereafter, the candidate was to appear for interview which consisted of 75 marks. There were, however, no qualifying marks for the interview. 8. It is common ground that in response to the advertisement, more than 50,000 candidates applied for the posts. The result for the Preliminary Written Test which was held on 6.2.2000, was declared on 22.9.2000. 7325 candidates were found successful. Physical Test was held from 29.10.2000 to 6.11.2000 and 1454 candidates were found successful. The Main Written Test was held on 29.4.2001 wherein 1178 candidates were declared successful. The final result of the interview was declared on 6.7.2001, wherein 1006 candidates were declared successful. The number of persons who were selected in different categories finally and have been sent for Training is as under: 1. General (Male) for the post of Sub Inspectors 608 2. General (Female) for the post of Sub Inspectors (This included one dependent of freedom fighter) Note: 163 OBC, 19 Scheduled Castes and 1 Scheduled Tribes candidates having secured more, than the last general candidate, were selected against general vacancies. 15 3. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts came to be filled in by direct recruit. Since 99 posts were filled under the Category of "Dying in Harness" Rules, only 1379 posts remained to be filled. Separate selection was to be held on the 2% vacancies reserved for Sportspersons through a separate advertisement. Therefore, as a matter of fact, actual recruitment was made i.e. only for 1350 posts of SICP and 255 posts of PC. The break-up of the posts was as indicated above. 12. Upon consideration of the entire matter, Ashok Bhusan, J. delivered common judgment dated 22.5.2002 in CMWP No. 25328 of 2001 (Narendra Partap Singh v. Director General of Police, U.P. and Ors.). All the writ petitions were disposed of with the following observations: In view of the foregoing discussions none of the contentions of the petitioner can be accepted except the contention regarding 2% reservation for sports men. Relief claimed by the petitioner cannot be granted except the direction to the respondents to recalculate the number of posts of general category candidates by applying 2% reservation for sports men horizontally and adding 2% posts of sports men also while calculating the total number of vacancies of general category c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rical background in which the provisions with regard to reservation came to be incorporated in the Constitution of India. The Division Bench also noticed the entire history with regard to the various government orders making reservation for different categories. The Division Bench notices that the matter of reservation has been dealt in detail by this Court in numerous cases. Therefore, the Division Bench has confined itself to the problem as, faced and countered, in the State of U.P; particularly with reference to the category of the candidates belonging to `O.B.Cs.' The Division Bench also noticed the statutory provisions contained in the U.P. Public Services (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1994 (hereinafter referred to as "the Act of 1994"). The High Court considered issues No. 1, 2 and 3 together. 16. The Division Bench has concluded that the various Government orders and the Act of 1994 provide reservation in State services with the intent to achieve the goal of adequate representation of Backward Classes of Citizens in service. It notices that reservation under Article 16(4) has to be made keeping in view the provisions contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or criteria would disentitle the reserved category candidate to compete in the general category. After analyzing the law laid down by this Court in numerous judgments, the Division Bench has concluded that the conflicting claims of individuals under Article 16(1) and the preferential treatment given to a backward class under Article 16(4) of the Constitution has to be balanced, objectively. The Division Bench then considered as to whether the concession or relaxation in the matter of fee and age would deprive a reserved candidate of his right to be considered against an unreserved seat. Can it be said that such a candidate is not a person who has competed with the general category in an open competition. It is noticed that under GOs (Government Orders) dated 11.04.1991, 19.12.1991 and 16.04.1992 and the clarification dated 19th October, 1992, it was provided that a reserved category candidate cannot compete with the open category candidate(s) after availing preferences which result in lowering of the prescribed standards. Such a candidate would only be considered against seat/post for the reserved category. However, after the promulgation of the 1994 Act and issuance of the Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me had to be filled from the general category male candidates and could not be carried forward. 20. Reservation in favour of sportspersons quota (2%) has also been upheld. It was held that the aforesaid reservation has to operate horizontally, therefore, the 29 vacancies which remained unfilled could not have been carried forward. The observations made by the Single Judge on this issue have been approved. A direction has been issued as follows: We direct the respondent-authorities to fill in the unfilled vacancies reserved for women candidates and sportsmen from suitable candidates of respective category on the basis of merit list and send them for training and provide all other benefits, if any as per rules. However, we may add here, since the respondents did not hold recruitment for sports persons in the present selection and we are informed that a separate selection was held, therefore, we provide that the vacancies remain unfilled from the separate selection held for sportsmen against 29 vacancies separated from the impugned selection, only those remaining vacancies shall be made available to the respective candidates of this selection. 21. The aforesaid findings of the Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field". Learned Sr. Counsel further submitted that the Division Bench has misinterpreted Section 3 of the Act of 1994. It has to be read as a whole. Section 8 is in nature of exception to Section 3(6), because it creates a non-level playing field. 26. In order to emphasize that reservation under Article 16(4) of the Constitution of India is a group right, and includes preferences, concessions and exemptions, Mr. L.N. Rao relied on certain observations of this Court made in the case of Indra Sawhney and Ors. v. Union of India and Ors. 1992 Supp (3) Scc 217. According to him, the fact that only age and fee relaxations were given does not take the reserved category candidates out of the group category. He has also relied on the judgment rendered in the case of Post Graduate Institute of Medical Education & Research, Chandigarh and Ors. v. K.L. Narsimhan and Anr. 1997 (6) SCC 283 in support of the submission that once a candidate takes advantage of relaxation in the eligibility criteria, he/she has to be treated as a reserved category candidate. 27. With regard to the interpretation to be placed on the Act of 1994, Mr. L.N. Rao submitted that Section 3 preserves the definition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in other cases is not over-ruled. It has in fact been subsequently referred to in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. 1999(7) SCC 120; Bharati Vidyapeeth and Ors v. State of Maharashtra and Anr. 2004 (11) SCC 755 and State of Madhya Pradesh and Ors. v. Gopal D. Tirpathi and Ors. 2003 (7) SCC 83. Therefore, according to Mr. L.N. Rao, the reasoning given therein is still relevant. Learned Sr. Counsel then relied on the judgment in the case of Union of India and Anr. v. Satya Prakash and Ors. JT 2006 (4) SC 524 in support of the submission that only a candidate who has been selected without taking advantage of any relaxation/concession can be adjusted against a seat meant for General Category Candidate. Learned Sr. Counsel then submitted that the vacancies which are reserved for Women candidates remained unfilled, and therefore, ought to have been filled from the men candidates belonging to the General Category. Even these vacancies have been illegally carried forward. The reservation in favour of women is referable to Article 15(3) of the Constitution of India and not Article 16(4) of the Constitution of India. Therefore, it is horizontal reservation in which ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions/relaxations in fee and age. Under Section 3(6), the candidate even though belonging to a reserved category is entitled to be treated as a General Category Candidate. According to Mr. Dwivedi, the Division Bench has correctly observed that taking advantage of fee concession or age relaxation would not be a bar for the reserved category candidates to be treated as general category candidates. They can be taken out of General Category only as an exception i.e. if their standard is lowered. On the other hand, if by relaxation, the reserved category candidate gets no advantage, he cannot be compartmentalized. The judgment relied upon by the appellants in K.L. Narsimhan (supra) has been over-ruled in the subsequent judgment of this Court in the case of Faculty Association (supra). Once the judgment is over-ruled, it cannot be argued that it is only partly over-ruled. Learned Senior counsel also submitted that the particular sentence relied upon by learned Sr. Counsel appearing on behalf of the appellants in the case of K.L. Narsimhan (supra) is a stray observation and cannot be treated as an authoritative pronouncement or a precedent. In any event, according to him, in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Sr. Counsel, the direction issued by the Division Bench to fill up the unfilled vacancies reserved for women candidates and sportsmen from suitable candidates of respective categories has been issued without taking into account that all the vacant posts have been filled, in accordance with the Government Order. The Division Bench has failed to appreciate that no unfilled posts reserved for women and the Sportsmen quota have been carried forward. 31. Dr. Rajeev Dhawan, learned Sr. Counsel reiterated the submissions made by Mr. L.N. Rao. According Dr. Dhawan the judgment in the case of K.L. Narsimhan (supra) has only been partly over-ruled in one case. The aforesaid judgement had decided three appeals by a common judgement, therefore, the reasoning of the judgment is still intact and would be applicable to the facts and circumstances of the present case. Since the reserved category candidates have been given relaxation in the age and the fee, the same would fall within the group right of reservation under Article 16(4) of the Constitution of India. Learned Sr. Counsel reiterated that once a candidate takes advantage of reservation/concessions under Article 16(4) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provision have to be harmonized keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. If is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (see his speech in Constituent Assembly, set out in para 28). No. other member of the Constituent Assembly suggested otherwise. It is thus, clear that reservation of a majority of seats were never envisaged by the found Fathers. Nor are we satisfied that the present context requires us to depart from that concept. 34. In PGI MER v. Faculty Association (supra) in para 32 the same principle was reiterated as under: 32. Article 14, 15 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be taken that the 50% maximum limit placed on reservation in any particular year by this Court in Indra Sawhney case (supra) must be maintained. It must further be ensured that in making reservations for the members of the Scheduled Castes and Scheduled Tribes, the maintenance of the efficiency of administration is not impaired. 37. It is in this context, we have to examine the issue as to whether the relaxation in fee and upper age limit of five years in the category of OBC candidates would fall within the definition of "reservation" to exclude the candidates from open competition on the seats meant for the General Category Candidates. Taking note of the submissions, the Division Bench has concluded by considering questions 1, 2 and 3 that concession in respect of age, fee etc. are provisions pertaining to eligibility of a candidate to find out as to whether he can appear in the competitive test or not and by itself do not provide any indicia of open competition. According to the Division Bench, the competition would start only at the stage when all the persons who fulfill the requisite eligibility conditions, namely, qualification, age etc. are short-listed. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e merit list, so prepared, would be declared selected. It is common ground that more than 50000 candidates appeared in the preliminary written test. Upon declaration of the result on 22.9.2000, only 3,325 candidates were found successful. Thereafter, the physical test which was conducted from 29.10.2000 to 6.11.2000 reduced the successful candidates to 1454. It was these 1454 candidates who sat in the main written test held on 29.4.2001. Upon declaration of result, 1178 candidates were declared successful. The candidates who were successful in the written test were subjected to an interview between 18.6.2001 to 1.7.2001. The final result published on 6.7.2001 declared only 1006 candidates successful. 39. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the General Category Candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laxations, consistent no doubt with the requirement of maintenance of efficiency of administration--the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour.... 40. In our opinion, these observations are a complete answer to the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on behalf of the petitioners. 41. We are further of the considered opinion that the reliance placed by Mr. Rao and Dr. Dhawan on the case of K.L. Narsimhan (supra) is misplaced. Learned Sr. Counsel had relied on the following observations: 5. ...Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate. 42. The aforesaid lines cannot be read divorced from the entire paragraph which is as under: 5. It was decided that no relaxation in respect of qualifications or experience woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the essence of the decision is its ratio and not every observation found therein. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. 45. In the case of State of Orissa and Ors. v. Md. Illiyas reported in 2006(1) SCC 275 the Supreme Court reiterates the law, as follows: 12. ... Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. 46. We may now examine the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid judgement was distinguished on the basis of the judgement in Union of India v. Madhav (1997)2 SCC 332. The aforesaid judgement was reviewed by a larger Bench of five Judges of this Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors. (1998) 4 SCC 1. On behalf of the review petitioners it was contended that judgement in Narasimhan case (supra) cannot be supported as in Madhav case (supra) the ratio in the decision of Arati Ray Chaudhary v. Union of India 1974 (1) SCC 87 was wrongly appreciated and the ratio was wrongly stated. On the other hand, it was submitted by the learned Solicitor General that the judgement in Madav case (supra) indicated the correct principle by giving very cogent reasons. Therefore, no interference is called for against the decision in Madhav case (supra) and the other decisions rendered by following the decision. Upon consideration of the rival submissions, it was observed as follows: 29. In Madhav case in support of the view that even in respect of single post cadre reservation can be made for the backward classes by rotation of roster, the Constitution Bench decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the reasoning in Madhav case (supra), we are unable to accept the submissions of the learned Counsel for the appellants that the reasoning in the aforesaid judgement is still intact, merely because review was filed only in one appeal out of three. The judgment in Narasimhan case (supra) having been set aside, we are unable to accept the submissions of the learned Senior counsel that the reasoning would still be binding as a precedent. 49. Mere reference to the judgement in the cases of Dr. Preeti Srivastava; Bharati Vidyapeet; and Gopal D. Tirthani and Ors. (supra) would not re-validate the reasoning and ratio in Narasimhan case (supra) which has been specifically set aside by the larger Bench in Faculty Association case (supra). We are, therefore, of the opinion that the reliance placed upon the observations in Narasimhan case (supra) is wholly misconceived. 50. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned with the interpretation of the 1994 Act, the instructions dated 25.03.1994 and the GO dated 26.2.1999. The controversy herein cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category. (3) If, in the third such recruitment, referred to in Sub-section (2), suitable candidates belonging to the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes. (4) Where, due to non-availability of suitable candidates any of the vacancies reserved under Sub-section (1) remains unfilled even after special recruitment referred to in Sub-section (2), it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in Sub-section (1) shall not exceed fifty one per cent of the total vacancies. (5) The State Government shall, for applying the reservation under Sub-section (1), by a notified order, issue a roster which shall be continuously applied till it is exhausted. (6) If a person belonging to any of the categories mentioned in Sub-section (1) gets selected on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the concessions falling within Section 8 of the Act of 1994 cannot be said to be relaxations in the standard prescribed for qualifying in the written examination. Section 8 clearly provides that the State Government may provide for concessions in respect of fees in the competitive examination or interview and relaxation in upper age limit. Soon after the enforcement of the 1994 Act the Government issued instructions dated 25.03.1994 on the subject of reservation for Scheduled Caste, Scheduled Tribe and other backward groups in the Uttar Pradesh Public Services. These instructions, inter alia, provide as under: 4. If any person belonging to reserved categories is selected on the basis of merits in open competition along with general candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category. 53. From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate to compete with the general category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned Counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfill the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to the aforesaid GO. It was further submitted that the learned Single Judge erred by directing the appellants to fill up the vacancy which were excluded from 2% sports quota from the aforesaid selection. According to the appellants, the advertisement clearly mentioned that the vacancies under the sports quota shall be filled separately. Therefore, the learned Single Judge was not justified in directing for filling up of these vacancies from this very selection. According to Mr. Dwivedi, the entire factual position was placed before the learned Single Judge in the counter affidavit which was duly noticed by the learned Single Judge as follows: In the counter affidavit the respondents have given details pertaining to the candidates belonging to different categories who were finally selected and the percentage of reservation fixed according to number of posts. According to the respondents total posts for Sub Inspector Civil Police were 1231 (male) + 148 female (ten per cent posts were referred to be reserved for women). According to the respondents the advertisement for 1634 posts was published containing 1231 male + 148 (female) Sub Inspector Civil Police and 255 Platoon Command ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Single Judge was apparently erroneous and inconsistent to the specific provisions contained in paragraph 4 of GO dated 26.02.1999. The Division Bench, however, committed a factual error in recording the following conclusion "we are constrained to hold that the authorities erred in law by leaving the vacancies kept for reserved women candidates unfilled instead of selecting and recommending suitable male candidates of respective category of the same selection". 58. Aggrieved against the aforesaid observations, the appellants sought review of the aforesaid judgement which has been erroneously dismissed by simply recording: We have head Sri G.S. Upadhyay, learned Standing counsel appearing for the applicant. It is submitted that this Court's observation at page 65 and 66 in respect of vacancies reserved for woman and sports quota which remain unfilled needs clarification. We are of the view that our judgement is clear and it does not suffer from any ambiguity and thus does not require to be clarified or recalled. 59. As noticed earlier, Mr. L.N. Rao and Dr. Dhawan had submitted that the vacancies reserved for women and for the outstanding sportsperson had to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts for women in Public Services and on the posts meant for direct recruitment under State Government, shall be adjusted in the same category only; xxxx xxxx xxxx xxx 4. If a suitable women candidate is not available for the post reserved for women in Public Services and on the posts meant for direct recruitment under State Government, then such a post shall be filled up from amongst a suitable male candidate and such a post shall not be carried forward for future; 62. The Learned Single Judge whilst interpreting the aforesaid, has observed that it does not specifically provide for posts which are not filled up by women candidates to be filled up from the male candidates. This view is contrary to the specific provision contained in Paragraph 4. The aforesaid provision leaves no matter of doubt that any posts reserved for women which remain unfilled have to be filled up from amongst suitable male candidates. There is a specific prohibition that posts shall not be carried forward for future. Therefore, the view expressed by the Learned Single Judge cannot be sustained. 63. We may also notice here that in view of the aforesaid provisions, the State has not carried forward any ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
