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TMI Blog2010 (1) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal 53780 application forms were received. It was further explained that 1178 candidates had qualified in the main written test who appeared in the interview which was held between 18.6.2001 to 1.7.2001. It was further explained that vide Government order dated 3.2.1999, 2956 posts of SICP were sanctioned, out of which 50% posts were to be filled by direct recruit and 50% posts by promotion. Therefore, 1478 posts 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitable candidates are not available or the reservation being horizontal and applicable to all categories, the unfilled vacancies are to be filled by suitable male candidates. 6. Whether keeping 2% sports quota separate from the selection in question is illegal. 7. Whether selection in question is otherwise vitiated on account of any alleged irregularity or bungling. 15. The Division Bench noticed the historical 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that a reserved category candidate, in addition to the reserved seats, can always compete for unreserved seat. The Division Bench has further held that the reserved category candidate can also compete against the unreserved seats under a criteria which is uniformly applicable to all the candidates. In case the selection criteria is lowered for the reserved category candidate, then such difference in standard 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o held that the reservation in favour of women is constitutionally permissible and is valid. On issue No. 5 it has been held that in view of the GO dated 26.02.1999 (para 4), the 52 vacancies of general category kept reserved for women candidates have been illegally carried forward for the next selection instead of filling in from the general category male candidates. However, since the posts remained vacant, the same 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection. 25. According to the learned Sr. Counsel, selection process would include all stages. There can be no distinction that relaxation in age and fee can be treated as provisions pertaining to eligibility i.e. to bring a candidate within the zone of consideration. According to the learned Sr. Counsel, it is hair splitting to divide the selection process into further parts. Each undermines the concept of level playing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it was over-ruled by a larger five Judges Bench in the case of Post Graduate Institute of Medical Education Research, Chandigarh v. Faculty Association and Ors. (1998) 4 SCC 1. The aforesaid judgment was over-ruled only on one particular point raised in the review application. The aforesaid judgment had decided three appeals in a common judgment. Review was filed only in one. Therefore, the judgment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its, by the suggested interpretation, the appellants seek to add the words from Section 8 to Sub-section (6) of Section 3. There is no relaxation in the qualifications. The concession is only in the matter of fee and the age which pertains only to eligibility of a candidate to apply for the post. The criteria for selection for all the candidates is identical, which has not been lowered, by the concessions/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of 2005 and 592 of 2006. In spite of the aforesaid categoric finding of the learned Single Judge, that there were no vacant posts, the Division Bench concluded that the vacancies which were left unfilled were carried forward for next selection, instead of filling in from the General Category of male candidates. In fact Government Order dated 26.2.1999 was fully complied with. According to 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reserved categories falling within Article 16(4). A Constitution Bench of this Court in the case of Indra Sawhney case (supra), this Court reiterated the need to balance the Fundamental Right of the individual under Article 16(1) against the interest and claim of the reserve category candidates under Article 16(4) of the Constitution. It needs no emphasis to say that the principal aim of Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it abundantly clear that the reservations should not be so excessive as to render the Fundamental Right under Article 16(1) of the Constitution meaningless. In Indra Sawhney (supra), this Court has observed as under: In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, shall not result in breach of 50% rule. 36. Therefore, utmost care 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. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed earlier, this had two papers- General Hindi, General Knowledge and Mental Aptitude Test. A candidate who secured 40% or above would be declared successful in the written test. Thereafter, the candidates were to appear for interview of 75 marks. The final merit list would be prepared on the basis of merit secured in the main written test and the interview. Candidates appearing in the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions and relaxations, 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. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d isolate from it the ratio decidendi. A decision is only 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 follows from the various observations made in the judgment. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were also not transferable from one specialty to another, however, the PGI had clubbed all the posts of Assistant Professor for the purpose of reservation in view of the fact that they are in the same pay scale and have same designation. The High Court had allowed the writ petition by relying on judgement of this Court in Chakradhar Paswan (Dr.) v. State of Bihar (1998) 2 SCC 214. The ratio in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education Research, Chandigarh is, therefore, allowed and the judgment dated 2.5.1997 passed in Civil Appeal No. 3175 of 1997 is set aside. 48. Since the judgment and reasoning in Narasimhan case (supra) were based on 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 upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Two percent: (c) in the case of other backward Twenty seven percent: Classes of citizens Provided that the reservation under Clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule II. (2) If, even in respect of any year of recruitment, any vacancy reserved for any category of persons under Sub-section (1) remains unfilled, special recruitment 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 vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the alternative, learned Counsel had submitted that at least such reserved category candidate who had appeared availing relaxation of age available to reserved category candidates cannot be said to have competed at par in Open Competition with General category candidates, and therefore, cannot be adjusted against the vacancies meant for General Category Candidates. We are of the considered opinion that 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servicemen. Similarly, the dependents of Freedom Fighters are also free to compete in the General category if they secure more marks than the last candidate in the General category. Therefore, we do not find much substance in the submission of the learned Counsel for the appellants that relaxation in age queers the pitch in favour of the reserved category at the expense of the General category. In 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 merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category reserved for women only 15 qualified candidates were available. They were duly selected. 52 posts, which remained unfilled, were filled up from the male candidates in accordance with GO dated 26.02.1999. Therefore, there remained no unfilled vacancy in the general category. Therefore, the Division Bench erred in coming to the conclusion that 52 vacancies have been carried forward contrary 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 selec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 125 2. Backward Class (reserved) 27% 67 3. 8 Scheduled Caste 21% 53 4 84 Scheduled Tribe 2% 05 It has been stated in the supplementary counter affidavit that 608 male belonging to general category were selected, against 67 posts of general category for women only 15 women were available who were selected rest of 52 posts were filled up on merit from male candidates in accordance with the Government order dated 26.02.1999. It was stated that the total 675 posts in general category were filled up and no post of general category is vacant. 57. Mr. Dwivedi further submits that the learned Single Judge took note of the averments made in paragraph 4 of the supplementary counter affidavit, and yet issued a direction to recalculate the number of posts of general category candidates by applying 2% reservation for sportsmen horizontally and adding 2% posts of sportsmen also while calculating the number of vacancy of general category candidates. Mr. Dwivedi further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s'. 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 no to continue that procedure. 61. The aforesaid principle of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en completed by the appellant-State. 64. As noticed earlier, the learned Single Judge despite taking note of the averments made in the supplementary counter affidavit by the State, erroneously issued directions to recalculate the vacancies reserved for outstanding sportspersons. It was specifically pointed out that a separate advertisement had been published for recruitment on the post reserved for outstanding sportsperson. It was also pointed out that all the posts available in the category of sportsmen were filled up in the subsequent selection. No post remained unfilled. Therefore, the conclusion of the learned Single Judge that the (29 SICP) + (5 PC) i.e. 34 posts ought not to have been deducted from the available 1478 posts for the purposes of calculating the number of vacancies available to the general category, was factually erroneous. It is not disputed before us that the principle of horizontal reservation would also apply for filling up the post reserved for outstanding sportsperson. It is also not disputed before us that there could have been no carry forward of any of the post remaining unfilled in the category of outstanding sportsperson. As a matter of fact, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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