Punjab-Haryana High Court
Sikander Singh And Others vs State Of Punjab And Others on 14 October, 2024
Author: Sudeepti Sharma
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
1. CWP
CWP-4264-2021 (O&M)
Sikander Singh and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
2. CWP
CWP-9229-2021 (O&M)
Satgur Singh and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
3. CWP
CWP-11305-2021 (O&M)
Neha Manroy and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
4. CWP
CWP-22094-2021 (O&M)
Meenu ......Petitioner
vs.
State of Punjab and others .....Respondents
5. CWP
CWP-4883-2021 (O&M)
Simardeep Singh and anr. ......Petitioners
vs.
State of Punjab and others .....Respondents
6. CWP
CWP-5198-2021 (O&M)
Bhawna Rani and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
7. CWP
CWP-5796-2021 (O&M)
Deepika Khanna and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
1 of 53
::: Downloaded on - 10-11-2024 11:21:50 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
2
8. CWP
CWP-5811-2021 (O&M)
Davinder Singh and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
9. CWP
CWP-14988-2023 (O&M)
Rajo Bai and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
10. CWP
CWP-16999-2023 (O&M)
Amandeep Singh and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
11. CWP
CWP-25474-2023 (O&M)
Vishaljeet Singh and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
12. CWP
CWP-19201-2024 (O&M)
Gagandeep Kaur and ors. ......Petitioners
vs.
State of Punjab and others .....Respondents
Reserved on 30.09.2024
Pronounced on:
on:14.10.2024
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. D.S. Patwalia,, Sr. Advocate, assisted by
M
Mr. Gaurav Rana, Ms. Alisha Sharda
Sharda, Advocates
fo the petitioners in CWP No. 4264
for 4264-2021
Mr. Gaurav Rana, Advocate
for the petitioners in CWP No. 25474
25474-2023
Mr. H.S. Saini, Advocate
for
or the petitioners in CWP No. 16999
16999-2023
Ms. Sunaina, Advocate for Mr. H.C. Arora, Advo
Advocate
2 of 53
::: Downloaded on - 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
3
for the petitioners in CWP No. 4883, 5198 and 22098
22098-2021
Mr. Abhishek K. Premi, Advocate
for the petitioners in CWP No. 19201
19201-2024
Mr. Pravesh K. Saini, Advocate
for the petitioners in CWP No. 9229
9229-2021
Mr. R.K. Chaudhary, Advocate
for the petitioners in CWP No. 11305, 5796 & 5811
5811-2021
Mr. Sandeep Singh, Advocate
for the petitioners in CWP No. 14988
14988-2023
Mr. B.S. Sewak, Advocate
for the petitioner
petitione No. 2 in CWP No. 4883-2021
Ms. Alka Chatrath, Mr. Ratik Kapur and
Mr Nikhil Singh, Advocates
for respondent Nos. 6 and 14 in CWP No. 4264
4264-2021
Mr. Sarabjit Singh Cheema, Advocate
for respondent No. 10
Mr. Vikas Chatrath, Advocate
for
or respondent Nos, 7, 8, 9 and 13 in CWP No. 4264
4264-2021
M Anu Chatrath, Addl.A.G,
Ms. G, Punjab
Mr. Satya Pal Jain, Addl. Solicitor General of India with
Mr. Shobhit Phutela, Sr. Panel counsel
for respondent No. 15/UOI
****
SUDEEPTI SHARMA J.
1. This judgment shall dispose of the above referred twelve writ
petitions. The
he challenge made in the above petitions are as under:
under:-
CHALLENGE MADE IN ALL THE PETITIONS
CWP No. 4264-2021
4264
2. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing the category
category–
wise merit lists dated 17.07.2020 with respect to General Category (Code No.
71) and Economically
Economic Weaker Section Category (Category Code No. 88)
3 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
4
respectively issued by respondent No. 2-Punjab
2 Punjab Public Service Commission,
for appointment to the post of Agriculture Development Officer, in pursuance
to advertisement No. 2 dated 30.01.2020.
3. It is further prayed to quash the merit list with respect to the
General Category and EWS Category, as issued by respondent
respondent-department
department on
18.02.2021.. It is further prayed to issue
issue a direction to the respondents to re
re–
frame/re-cast
cast the merit list.
CWP No. 9229-2021
9229
4. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) off
the office memorandum
morandum dated 30.10.2020 and clarification/instructions dated
18.03.2021,, issued by respondent No. 5.
5. It is further prayed that the final merit lists be quashed of General
Category as well as that of EWS Category dated 25.02.2021. It is further
prayed to issue a direction to the respondents to re
re-frame/re-cast
cast the merit lists
for Open/General Category/EWS Category, for the subject of
English/Maths/Science/Social
aths/Science/Social Studies dated 25.02.2021.
CWP No. 11305-2021
11305
6. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) of
the office memorandum dated 30.10.2020 and clarification/instructions dated
18.03.2021, issued by respondent
responde No. 5.
7. It is further prayed that the final merit lists be quashed of General
Category as well as that of EWS Category dated 25.02.2021. It is further
prayed to issue a direction to the respondents to re
re-frame/re-cast
cast the merit lists
4 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
5
for Open/General Category/EWS Category, for the subject of
English/maths/Science/Social Studies dated 25.02.2021.
CWP No. 22094
094-2021
8. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashin
quashing
g Clause (8) of
the office memorandum dated 30.10.2020 and clarification/instructions dated
18.03.2021, issued by respondent No. 5.
9. It is further prayed to issue a direction to the respondents to re
re–
frame/re-cast
cast the merit lists for Open/General Catego
Category/EWS
ry/EWS Category, for
the subject of English.
English
CWP No. 4883-2021
4883
10. The present petition under Articles 226/227 of the Constitution of
India is filed, seeking writ in the nature of Certiorari for quashing the
category-wise
wise merit lists i.e list of open category
category notified on 21.02.2021 (code
71) and category wise merit lists dated 20.02.2021 with respect to the General
(LDESM) Category (Code No. 73) and SC (LDESM) Category (Code No. 79)
issued by respondent No. 4,, for appointment to the post of Agriculture
Development
velopment Officer, in pursuance to advertisement No. 2 dated 30.01.2020.
11. It is further prayed to issue a direction to the respondents to re
re–
frame/re-cast
cast the merit list.
CWP No. 5198-2021
5198
12. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) of
the office memorandum dated 30.10.2020, issued by respondent No. 5.
5 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
6
13. It is further prayed that the final merit lists be quashed of General
Category as well
well as that of EWS Category dated 25.02.2021. It is further
prayed to issue a direction to the respondents to re
re-frame/re-cast
cast the merit lists
for Open/General Category/EWS Category, for the subject of
English/Maths/Science/Social Studies dated 25.02.2021.
CWP No. 5796-2021
5796
14. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) of
the office memorandum dated 30.10.2020, issued by respondent No. 5.
15. It is further prayed that the final merit lists be quashed of General
Category as well as that of EWS Category dated 25.02.2021. It is further
prayed to issue a direction to the respondents to re
re-frame/re-cast
cast the merit lists
for Open/General Category/EWS Catego
Category,
ry, for the subject of
English/Maths/Science/Social Studies dated 25.02.2021.
CWP No. 5811-2021
5811
16. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) of
the office
ffice memorandum dated 30.10.2020, issued by responden
respondent-department.
17. It is further prayed to issue a direction to the respondents to re
re–
frame/re-cast
cast the merit lists for Open/General Category/EWS Category, for
the subject of English/Maths/Science/Social
English/Maths/Science/Social Studies dated 25.02.2021.
CWP No. 14988-2023
14988
18. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) of
the office memorandum dated 30.10.2020, issued by respondent-department.
6 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
7
19. It is further prayed to issue a direction to the respondents to re
re–
frame/re-cast
cast the merit lists for Open/General Category/EWS Category, for
the subject of English/Maths/Science/Social Studies dated 25.02.2021.
CWP No. 16999-2023
16999
20. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) of
the office memorandum dated 30.10.2020 and subsequent clarification dated
18.03.2021, issued by respondent-department.
res
CWP No. 25474-2023
25474
21. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing the
notification dated 18.03.2021, issued by respondent
respondent-department.
CWP No.. 19201-2023
19201
22. The present petition under Articles 226/227 of the Constitution of
India is filed seeking writ in the nature of Certiorari for quashing Clause (8) of
the notification dated 30.10.2020 and subsequent clarification dated
18.03.2021, issued by respondent-department.
23. Further prayer is for setting aside the impugned provisional
selection list dated 25.02.2021.
25.0
BRIEF FACTS OF THE CASE
24. Brief facts of the case are that respondent No. 22-Punjab
Punjab Public
Service Commission issued an advertisement bearing Advertisement No. 2
dated 30.01.2020 whereby 141 posts of Agriculture Development Officer in
the respondent-department
respondent department were advertised. Out of 141 posts, 55 posts were
earmarked
ked for General Category and 14 posts were earmarked for
7 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
8
Economically Weaker Section (EWS). The essential qualification required for
the above posts reads as under:-
under:
“Essential Qualifications:-
Qualifications:
4.1) Should possess
possess degree in B. Sc (Agricultur
(Agriculture) (with minimumsixty percent marks) from a recognized University or Institution.
Provided that preference shall be given to a person, who
possess a degree in M.Sc (Agriculture) from a recognized
University or Institution.
4.2) Punjabi or Matric or its equivalent standard.”
The candidate must possess the requisite qualification before or by
31.03.2020.”
25. As per the above advertisement, the selection to the post of
Agriculture Development Officer was to be made on the basis of a written
competitive examination, which were 300 marks followed by an interview of
40 marks. Further the Economically Weaker Section (EWS) was issued Code
No. 88. It has further been mentioned that a candidate would be considered to
be belonging to Economically Weaker Section (EWS) if his or her family
income is less than Rs.8 lacs per annum.
26. The petitioners in all the writ petitions belong to Economically
Weaker Section (EWS) category and they duly submitted their online
applications
ications under Economically Weaker Section (EWS) category, which were
duly accepted. Consequently, they were issued roll numbers to appear in the
examination and they appeared in the written examination followed by the
interview. Consequently, respondent No. 2 issued a combined merit list as
well as category-wise
category wise merit list of the candidates held to be eligible. The
8 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
9
necessary details of the petitioners, who belong to the EWS category reads as
under:-
Name Roll No. Subject Rank Marks Sikander Singh 123485 74 260.20 Himanshu Goyal 121807 76 259.80 Abhinav Girdhar 122822 77 259.40 Arjun Sharma 120526 80 258.90 Diljeet Kaur 122074 84 258.10 Sukhveer Singh 120181 86 257.83 Rohan Kumar 122617 92 256.63 Harish Siag 121741 96 256.00 Taranjeet Singh 122836 97 255.50 Dalvir Singh 123156 101 254.50 Satgur Singh 2038800 English 98 107 Mamta Rani 204329 Hindi 4 129 Jaswinder Kaur Kau 2022387 Math 161 103 Sheenam 2050154 Math 149 104 Mehak 2058470 English 74 115 Mehak Kathpal 2040686 Hindi 158 103 Sandeep Kumar 2042488 English 86 113 Aayush tinna 2036224 Science 137 77 Sukhdeep Kaur 2037401 English 96 112 Alisha 2046179 Math 107 106 Kuldeep Singh 2024393 English 105 111 9 of 53 ::: Downloaded on - 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
10
Neha Manroy 2078164 Science 72
Priyanka Verma 2028629 Science 69
Bir Balla Singh 2011283 Science 73
Deepika Khanna 173650 English – – 111
Alka Rani 363849 Math – – 108
Renu Bala 364012 Math – – 102
Arona Rani 370631 Math 108
Radhika 382669 Science 80
Akriti 381981 Science 78
Amandeep Kaur 382354 Science 79
Simran Goyal 387263 Science 78
Seema 170877 English 115
Renu Bala 170976 English 115
Nirmala Rani 118250 Hindi 130
Lalit Kumari 170985 English 116
Babli Singla 175597 English 109
Harpreet Kaur 173800 English 111
Harpreet Singh 384827 Science 75
Chetan Sharma 381694 Science 75
Ravinder Kumar 363357 Math 92
Mamta Rani 383044 Science 77
Shaifaly Rani 175646 English 113
Anchal Verma 171655 English 112
Kirandeep Kaur 170727 English 109
Manpreet Kaur 175278 English 116
10 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
11
Harjot Singh 172312 English 115
Nishma 172270 English 114
Varinder Singh 360908 Math 105
Rahul Bajaj 367822 Math 94
Satinder Kaur 173750 English 98
Mansi 384968 Science 76
Harminder Kaur 384533 Science 118
Bhawna Rani 364932 Math 97 107
Sonia Rani 370543 Math 102 106
Drishty Goyal 364789 Math 96 107
Renu Bala 369715 Math 103 106
Gurmeet Kaur 349678 Social 01 116
Studies
Bhupinder Kaur 171175 English 70 115
Sukhwinder Kaur 174981 English 104 111
Pawan Kumar 171375 English 80 114
Sonia Handa 173808 English 84 114
Poonam Devi 173531 English 121 107
Hardeep Sharma 172278 English 78 114
Payal Singla 170921 English 103 111
Sandeep Kumar 362193 Math 80 109
Mamta Rani 362916 Math 92 107
Rama Kant 383870 Science 95 79
Gautam
Gagandeep 381875 Science 132 77
11 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
12
Kumar
Gaurav Sharma 385699 Science 113 78
Monika 381634 Science 101 79
Lakhveer Kaur 172193 English 109 110
Ashu Bala 376378 Math 91 107
Parteek Kumar 367299 Math 95 107
Harpreet Singh 366976 Math 97
Manpreet Kaur 122368 273.80
Lovepreet Kaur 120414 260.30
Gagandeep Kaur 122166 266.77
Rajo Bai 2153761 57
Rajni Devi 2143149 57
Meenu Rani 2158203 57
Sukhpal Kaur 2150268 57
Rajpal 2143385 57
Rajinder Kumar 2145749 57
Rashdeep Singh 2154728 57
Jasvir Kaur 2159793 57
Jagseer Singh 2136872 57
Veerpal Kaur 2142120 57
Nisha Sharma 2157776 57
Pritpal Singh 2143257 57
Babita Rani 2154356 57
Parmodh Sharma 2143360 57
Twinkle 2137872 58
12 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
13
Manpreet Kaur 2136750 57
Abhey Singh 2143379 58
Nisha Rani 2155793 57
Ramandeep Kaur 2163317 57
Amandeep Singh 110
Rajinder Kumar 110
Balkarn Singh 124
Rajesh Kumar 112
Rajo Bai 108
Maninder Singh 102
Amrit Singh 109
Gagandeep Kaur 221587 54
Gurpreet Kaur 226004 45
Mandeep Kaur 219362 41
Rajinder Pal 225599 47
Pahaldeep Singh 222433 53
Parmodh Sharma 220326 55
27. Thereafter, on 18.02.2021, respondent
respondent-department
department issued merit
list of General Category candidates and a separate merit list of Economically
Weaker Section candidates along with other category
category-wise
wise merit lists. The
General Category List (55 posts) shows that the last cand
candidate
idate at position No.
65 has 255.40 marks and the one at position No. 55 has 260.03 marks whereas
in EWS List (14 posts) candidate at position No. 114
4 has 260.20 marks and last
candidate at position No. 19 has 258.10 marks
marks.. This shows that all the
candidates shown to be eligible under EWS List i.e 19 candidates have higher
13 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
14
marks than the candidates shown to be eligible in the merit list with respect to
General Category.
28. On 22.02.2021, the counselling was conducted for all the selected
candidates.
s. However, the counselling carried
carrie no marks and the same had no
bearing on the merit of the candidates.
29. The Government of India, vide memorandum dated 31.01.2019
provided 10% reservation for Economically Weaker Sections (EWSs) in direct
recruitment in
n Civil Posts and services in the Government ooff India. In this
memorandum, it was mentioned that the persons whose family has gross
annual income below Rs.8 lakhs per annum are to be identified as EWSs for
benefit of reservation. The column No. 7 of the of
office
fice memorandum reads as
under:-
“7. ADJUSTMENT AGAINST UNRESERVED VACANCIES
A person belonging to EWS cannot be denied the right to compete
for appointment against an unreserved vacancy. Persons belonging to
EWS who are selected on the basis of merit and not on account of
reservation are not to be counted towards the quota meant for
reservation.”
30. Thereafter, State of Punjab, vide its letter dated 28.05.2019
decided to provide 10% reservation to the residents of Punjab belonging to
the Economically Weaker Sections (EWSs) in all the
Departments/Boards/Corporations/Local Bodies of the State of Punjab.
31. Further another letter/office
letter/office memorandum dated 30.10.2020
was issued by State of Punjab for reservation
reservation of Economically Weaker
Sections (EWSs) in direct recruitment in civil posts and services in the
14 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
15
Government of Punjab and in column No. 33, 8 and 12, it has been
mentioned as under:-
under:
“3. Quantum of Reservation:-
Reservation:
The residents of Punjab belonging to EWSs who, are not covered
under the existing scheme of reservation for SCs and BCs shall get
ten percent reservations in all direct recruitment vacancies in all the
Departments or Boards or Corporations of Local Bodies of the
Government of Punjab.”
Punjab.
8. ADJUSTMENT AGAINST RESERVED VACANCIES
Persons belonging to EWS who are selected on the basis of
merit shall be counted towards the quota meant for EWS reservation.
12. The above scheme of reservation shall be effective in all
respect of all direct recruitment vacancies to be notified on or after
the issuance of these instructions.”
32. The Government of Himachal Pradesh issued letter dated
11.06.2019 regarding reservation for Economically Weaker Sections (EWSs)
in Class I, II, III or IV posts in direct
direct recruitment in the services of the State
Government. In column No. 6, it has been mentioned as under:
under:-
“6. ADJUSTMENT AGAINST RESERVED VACANCIES
A person
p belonging to EWS cannot be denied the right tocompete for appointment against an unreserved vacancy. Persons
belonging to EWS who are selected on the basis of merit and not on
account of reservation are not to be counted ttowards the quota meant
for reservation.”
reservation.
33. The Government of Haryana also issued letter dated 25.02.2019
.2019
regarding reservation for Economically Weaker Sections (EWSs) in Direct
15 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
16
Recruitment
ruitment in Civil Posts and services as well as in admissions in
Government/Government Aided Educational Institutions in the State of
Haryana.. In column No. 6, it has been mentioned
mentioned as under:
under:-
“6. ADJUSTMENT AGAINST RESERVED VACANCIES
A person belonging to EWS cannot be denied the right to
compete for appointment against an unreserved vacancy. Persons belonging
to EWS who are selected on the basis of merit and not on account of
reservation are not to be counted towards the quota meant for reservation.”
34. The grievance of the petitioners before this Court is that the last
candidate in the General/Open Category secured 255.40 marks as against
258.10 marks in EWS Category.
Category. Thus, all the candidates shown to be eligible
by the respondent-department
respondent department under EWS category are higher in merit than
the last candidate in the General/Open Category. The petitioners are seeking
to be considered for appointment in Open/General Cate
Category.
gory. Hence the
present petitions.
SUBMISSION OF LEARNED COUNSEL FOR THE PARTIES
SUBMISSIONS
35. Learned senior counsel for the petitioner (s) contends that the
merit list with respect to the general category is illegal and is liable to be set
aside, in view of Article 16 (6) of the Constitution of India wherein
reservation as provided for EWS Category
Category is a vertical reservation.
36. Learned counsel for the petitioner (s) further contends that it is
settled principles
principle of law that the right of a candidate to compete in
General/Open Category cannot be taken away and in case a candidate has
higher merit, his/her candidature is liable to be considered against the post
meant for General Category. However, the respondents have completely
16 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
17
ignored the said fact and are proceeded to deviate from the same against the
principles
nciples of law.
37. Learned counsel for the petitioner (s) further contends that the
letter dated 30.10.2020 issued by State of Punjab would be prospective in
nature and not retrospective.
retrospective. Therefore, the same would not be applicable in
the case of the petitioners,
petitioners, who are selected, pursuant to advertisement No. 2
of 30.01.2020..
38. Per contra, learned counsel for the State submits that in Clause 2
of letter dated 28.05.2019,
28.05.2019, it has been mentioned that the detailed instructions
regarding operation of roster and procedure for implementation of
Economically Weaker Sections reservation will be issued separately. The
letter dated 30.10.2020 is in continuity to the same wherein in Clause 8, it has
been mentioned as under:-
under:
17 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
18
“8. ADJUSTMENT AGAINST RESERVED VACANCIESPersons belonging to EWS who are selected on the basis of
merit shall be counted towards the quota meant for EWS
reservation.”
39. Learned State counsel has further argued that the merit list has
been prepared as per letter dated 30.10.2020 and would be applicable to the
case of the petitioners as well.
40. Learned counsel appearing for the respondent
respondent-department
department on theother hand, contends that if the EWS candidates are higher in merit to General
Category candidates, then it would amount to increase in the quota fixed for
EWS category i.e 10 per cent.
41. We have heard learned counsel for the parties and perused the
whole record of the case.
42. Reference can be made to the relevant paras of the reply dated
20.04.2021 filed by respondent Nos. 1 to 4-State,
State, which reads as under:
under:-
“PRELIMINARY
PRELIMINARY SUBMISSIONS
4. That now, the writ petitioners who belong to the EWS
category through the instant writ petition has claimed that as they
have scored the higher marks than the candidates shown in the merit
list in respect to the General Category so they are liable to be
selected
lected in the general category. However, the claim of the petitionercannot be taken into consideration in view of the
notification/instructions issued vide memo No. 1/3/2019
1/3/2019- RCI/700dated 30.10.2020 (Annexure R-1)
R 1) with regard to Reservation forEconomically Weaker Sections (EWS’s) in direct recruitment in civil
Economicallyposts and services in the Government of Punjab” and provisions
18 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
19
have been made in the para No.
N . 8 of the notifications/instructionswith regard to the adjustment against reserved vacancies as under:
under:-
“Persons belonging to EWS who are selected on the basis of merit
shall be counted towards the quota meant for EWS reservation.”
5. That further vide memo no. 1/03/2019
1/03/2019-RC1/196 dated
18.03.2021 (Annexure R-2)
R 2) clarification with regard to the above
notification/instructions
ation/instructions have also been issued by the Government of
Punjab department of Social Justice, Empowerment and Minorities
(Reservation Cell). The para No. 8 of the instructions issued vide
letter referred above is clarified as under:
under:-
Existing Provision
Provisio Clarification
8.Adjustment against 8. Adjustment against
reserved vacancies:
vacancies:-
reserved vacancies:-
vacancies:
Persons belonging to EWS
Persons belonging who are selected on the
to EWS who are selected on basis of merit shall be
the basis of merit shall be counted towards the quota
counted towards the quota meant for EWS reservation.
meant for EWS reservation It means that:
that:-
i. Firstly, to fill the quota of
the open category in order of
merit and thereafter,ii. Secondly, to find out how
many EWS candidates have
been selected on the above
basis and thereafter;
iii
iii. If the number of EWS
candidates in open category
is equal to or more than the
ten percent reservation
quota for EWS, then there
shall be no further selection
towards the reservation
quota for EWS.
iv. Only if there is any
shortfall of EWS candidates
19 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
20
in a open category, then the
requisite number of eligible
EWS candidates shall have
to be taken and adjusted or
accommodated against EWS
reservation categories by
deleting the correspond
corresponding
number of candidates there
from.
Meaning there by the persons belonging to EWS who are
selected on the basis of merit shall be counted towards the quota
meant for EWS reservation only.
6. That Article 15(6) (amended) enables the State to make
special provision for the growth of economically weaker section of
the society, including reservation in educational institutions. It states
that such reservation can be made in any education institutional
together with aided and unaided private instituti
institutions, excluding
minority educational institutions covered under Article 30(1). Under
Article 15(6)(a), the benefits of the EWS reservation, were extended
only to the candidates belonging to General category. This
reservation to the economically backward cla
classes is based upon the
concept of social backwardness. Meaning there by that the
candidates who have applied in the EWS category will only be
considered in the EWS category whether or not they scored more
marks than the General Category. It is submitted th
that combined merit
list was prepared by respondent no 2 and action regarding change if
any to the merit list is to be taken by respondent no. 2.
20 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
21
Reply on Merits
2. That in reply to the contents of the para no. 2 of the writ
petition it is submitted that the claim of the petitioner cannot be
taken into consideration in view of the notification/instructions
issued vide memo No. 1/3/2019-
1/3/2019 RCI/700 DATED 30.10.2020
(Annexure R-1)
R 1) with regard to ” Reservation for Economically
Weaker Sections (EWS’s) in direct recr
recruitment in civil posts and
services in the Government of Punjab” and provisions have been
made in the para No. 8 of the notification/instructions with regard to
the Adjustment against Reserved vacancies ::- “Persons belonging to
EWS who are selected on the
the basis of merit shall be counted towards
the quota meant 100 for EWS reservation.” As under Article
15(6)(a), the benefits of the EWS reservation, were extended only to
the candidates belonging to General category
category. Contents of paras of
preliminary submissions
submis are retreated.
6. That in reply to the contents of the para no. 6 of the writ petition it
is submitted that the claim of the petitioner cannot be taken into
consideration in view of the notification/instructions issued vide
memo No. 1/3/2019-
1/3/2019 RCI/700 DATED 30.10.2020 (Annexure R
R-1)
with regard to ” Reservation for Economically Weaker Sections
(EWS’s) in direct recruitment
rec itment in civil posts and services in the
Government of Punjab” and provisions have been made in the para
No. 8 of the notification/instructions with regard to the Adjustment
against Reserved vacancies as under:-
under:
21 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
22
“Persons belonging to EWS who are selected on the basis of meritshall be counted towards the quota meant for EWS reservation.” As
under Article 15(6)(a), the benefits
benefits of the EWS reservation, wereextended only to the candidates belonging to General category.”
8. That in reply to the para no. 8 of the writ petition it is submitted
that as per Article 16 (6) of the constitution of India “Nothing in this
article shall
shall prevent the State from making any provision for thereservation of appointments or posts in favour of any economically
weaker sections of citizens other than the classes mentioned in clause
(4), in addition to the existing reservation and subject to a ma
maximumof ten per cent of the posts in each category. “Thus, no where
mentioned that the reservation provided for EWS category is a
vertical reservation. Moreover, while claiming so, the candidates
belonging to EWS category would deprive the rights of the
candidates
andidates who have not applied in the EWS category. Contents ofthe para of the preliminary submissions are retreated.
retreated.”
43. A perusal of the reply filed by the State of Punjab shows that on
the one hand, in clause 12 of the letter dated 30.10.2020, it has been
mentioned that the above scheme shall be effective in respect of all direct
recruitment vacancies to be notified on or after the issuance of these
instructions, whereas in the reply filed by the State, the contradictory stand
has been taken by stating
stating that the letter dated 30.10.2020 are made applicable
to advertisement No. 2 of 2019.
2019
44. Reference can be made to the relevant paras of the reply dated
18.10.2021 filed by respondent No. 2-Punjab
Punjab Public Service Commission
Commission,,
which reads as under:-
under:
22 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
23
“5. That it is also submitted that as per the instructions of theDepartment Social Justice Empowerment and Minorities
Government of Punjab (Pb/dated 30/10/2020, the persons bel
belongingto EWS who are selected on the basis of merit shall be counted
towards the quota
quota meant for EWS and further there is no provision toconsider the candidates of EWS category having secured higher
marks than candidates in General Category to be appointed against
the General category candidates.”
45. Reference can be made to the relevant paras of the reply
dated 05.01.2023 filed by respondent No. 15-Unio
15 Union of India, which readsas under:-
“16. In respect of the issue relating to reservation for EWS
category, it is stated that Department of Personnel & Training,
Ministry of Personnel,
Personnel, Public Grievances and Pensions issued OMNo. 36039/1/2019-Estt.
36039/1/2019 Estt. (Res), dated 31.01.2019, providing 10%
reservation to the persons belonging to EWSs who are not covered
under the scheme of reservation for SCs, STs and OBCs in Direct
Recruitment in civil posts and services in the Government of India. It
is stated that Para 7 of said OM provides as under:
Adjustment Against Unreserved Vacancies:
“A person belonging to EWS cannot be denied the right to compete
for appointment against an unreserved vacancy. Persons belonging
to EWS who are selected on the basis of merit and not on account of
reservation are not to be counted towards the quota meant for
reservation”
23 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
24
46. A perusal of the above shows that Union of India as per
instruction bearing No. 36039/1/2019-Estt.
36039/1/2019 Estt. (Res), dated 31.01.2019 provided
10 per cent reservation to the persons belonging to EWS Category and stated
that EWS category cannot be denied the right to compete for appointment
against the un–reserved vacancies.
47. Reference at this stage can be made to clause 8 and 12 of letter
Reference
bearing No. 1/3/2019-RCI/700
1/3/2019 dated 30.10.2020, which reads as under:
under:-
8. ADJUSTMENT AGAINST RESERVED VACANCIES
Persons belonging to EWS who are selected on the basis of
merit shall be counted towards the quota meant for EWS reservation.
12. The above scheme of reservation shall be effective in all
respect of all direct recruitment vacancies to be notified on or after
the issuance of these instructions.”
48. The above clause 8 of letter is contrary to the office
memorandum dated 31.01.2019 issued by Government of India. As per letter
dated 30.10.2020, the above scheme of reservation would be effective in
respect of all direct recruitment vacancies to be notified on or after the
issuance
uance of these instructions. The relevant portion of the office memorandum
dated 31.01.2019 reads as under:-
under:
7. ADJUSTMENT AGAINST UNRESERVED VACANCIES
A person belonging to EWS cannot be denied the right to compete
for appointment against an unreserved vacancy. Persons belonging to
EWS who are selected on the basis of merit and not on account of
reservation are not to be counted towards the quota meant for
reservation.”
24 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
25
49. Reference can further be made to Article 15 and 16 of the
Constitution of India, which reads as under:-
15. Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth(1)The
The State shall not discriminate against any citizen on grounds onlyof religion, race,
race, caste, sex, place of birth or any of them.
(2)No
No citizen shall, on grounds only of religion, race, caste, sex, place
of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to–(a)access to shops, public
restaurants, hotels and places of public entertainment; or
or(b)the use of
wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use
of the general public.
(3)Nothing
Nothing in this article shall prevent the State from making any
special provision
rovision for women and children.
children.[Editorial comment- The
Constitution (First Amendment) Act, 1951, made several changes to
the Fundamental Rights Part of the Indian constitution. It made it
clear that the right to equality does not preclude passing laws tha
that
give special consideration to society’s most vulnerable groups. Article
15(3) was appropriately expanded to prevent any special provisions
made by the State for the social, economic, or educational progression
of any disadvantaged class of citizens from being contested based on
discrimination.
(4)Nothing
Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement of
25 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
26
any socially and educationally
educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in matters of public employment
(1)There
There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State,
(2)No
No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under
the State.
(3)Nothing
Nothing in this article shall prevent Parliament from making any
law prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or
other authority within, a State or Union territory, any requirement as
to residence within that State or Union territory prior to such
employment or appointment.
appoi
(4)Nothing
Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the Sta
State, is not
adequately represented in the services under the State.
(4A)Nothing
Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion, with consequenti
consequential
seniority, to any class or classes of posts in the services under the
State in favour of Scheduled Castes and the Scheduled Tribes which in
the opinion of State are not adequately represented in the services
under the State.
26 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
27
(4b) Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being filled up
in that year in accordance with any provision for reservation made
under clause (4) or clause (4A) as a separate class of vacancies to be
filled
ed up in any succeeding year or years and such class of vacancies
shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of fifty per
cent, reservation on total number of vacancies of tthat year.[The
Constitution (Eighty-first
(Eighty first Amendment) Act, 2000, aimed to protect
reservations for SCs and STs in the backlog of vacancies. A new
clause (4B) was added to Article 16 of the Constitution of India by the
81st Amendment Act of 2000, after clause (4A). This gave the states
the authority to treat unfilled reserved vacancies from one year as a
separate class of vacancies to be filled in the following year or years.
The new provision stated that such vacancies must not be included in
the vacancies of the year in which they are filled, in order to calculate
the overall vacancy reservation ceiling of 50% for that year. This
modification essentially eliminated the 50% cap on reservations for
backlog vacancies.
(5)Nothing
Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the affairs
of any religious or denominational institution or any member of the
governing body thereof shall be a person
person professing a particular
religion or belonging to a particular denomination.
(6)Nothing
Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any
27 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
28
economically weaker sections of citizens other than the classes
mentioned in clause (4), in addition to the existing reservation and
subject to a maximum of ten per cent. of the posts in each category.”
50. A perusal of the above Articles shows that the reservation of
EWS is vertical reservation, as provided by the Constitution of India. The
State of Punjab cannot issue instructions/letters, which are contrary to the
provisions of the Constitution of India. Clause
Clause 8 of letter dated 30.10.2020
referred to above shows that the State of Punjab on its own ignored the
provisions of the Constitution of India and has wrongly considered the EWS
reservation as horizontal.
horizontal
51. Reference at this stage can be made to jud
judgment
gment of Hon’ble the
Surpeme Court of India in a case of Janhit Abhiyan vs. Union of India (EWS
Reservation), 2023 (5) SCC 1. The relevant portion of the judgment reads as
under:-
“26.
26. Learned Solicitor General of India, Mr. Tushar Mehta,
has submitted that to set aside a constitutional amendment, very high
judicial threshold is needed. He would submit that a constitutional
amendment may even touch upon the basic structure but unless it is
shown that it fundamentally alters the basic structure or basic
features of the Constitution, it cannot be struck down under judicial
review. In support of his contentions, learned Solicitor General has
placed reliance on the said decisions in Raghu
Raghunathrao, Bhim Singhjiand Kesavananda as also on the decision in Indira Nehru Gandhi v.
Raj Narain and Anr. 1975 Supp SCC 1. He has further argued that
the amendment in question, instead of hitting or disturbing the basic
structure, rather strengthens the Preambular vision of the
28 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
29
Constitution i.e., of providing economic justice to its people alongwith social and political justice
31. Three major issues to be answered in these matters by this Bench
have been noticed at the outset. In order to answer those issues and
in view of the variety of submissions urged as also the subject
subject-
matter, following principal points arise for determination:
(a) As to whether reservation is an instrument for inclusion of
socially and educationally backward classes to the mainst
mainstream ofsociety and, therefore, reservation structured singularly on economic
criteria violates the basic structure of the Constitution of India?
(b) As to whether the exclusion of classes covered under Articles
15(4), 15(5) and 16(4) from getting benefit of reservation as
economically weaker sections violates the Equality Code and
thereby, the basic structure doctrine?
(c) As to whether reservation for economically weaker sections of
citizens up to ten per cent. in addition to the existing reservations
results
ults in violation of basic structure on account of breaching theceiling limit of fifty per cent.?
31.1. All these points are essentially structured on three important
components namely, (i) the general rule of equality
enshrined in Article 14 of the Constitution;
Constitution; (ii) the reservations
enabled in Articles 15 and 16 as exception to the general rule of
equality; and (iii) the doctrine of basic structure that defines and
limits the power of the Parliament to amend the Constitution.
Relevant Constitutional Provisions
29 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
30
32. Any process of determination of the points aforesaid would
invariably require an insight of the constitutional provisions. The
relevant provisions could be usefully reproduced as follows:
32.1. Preamble to the Constitution of India, in its ppresent form, reads
as under: “We, The People Of India, Having Solemnly Resolved To
Constitute India Into A Sovereign Socialist Secular Democratic
Republic And To Secure To All Its Citizens: Justice, Social,
Economic And Political; Liberty Of Thought, Expre
Expression, Belief,Faith And Worship; Equality Of Status And Of Opportunity; And To
Promote Among Them All Fraternity Assuring The Dignity Of The
Individual And The Unity And Integrity Of The Nation; In Our
Constituent Assembly This Twenty-Sixth
Twenty Sixth Day Of Novembe
November, 1949, DoHereby Adopt, Enact And Give To Ourselves This Constitution.”
32.2. The underlying attribute of all the points and questions arising
in these matters is as to whether the 103rd Amendment violates the
basic structure of the Constitution. The discussion, therefore,
revolves around the power of the Parliament to amend the
Constitution and for this purpose, we need to have a close look at the
provisions contained in Article 368 of the
the Constitution.
32.2.1. Article 368, as originally adopted, read as under: –
“368. Procedure for amendment of the Constitution.
Constitution.- An amendment
of this Constitution may be initiated only by the introduction of a Bill
for the purpose in either House of Parliament,
Parliament, and when the Bill ispassed in each House by a majority of the total membership of that
House and by a majority of not less than two
two-thirds of the membersof that House present and voting, it shall be presented to the
30 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
31
President for his assent and upon
upon such assent being given to the Bill,the Constitution shall stand amended in accordance with the terms of
the Bill:
Provided that if such amendment seeks to make any change in
in-
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part
XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
32.2.2. Article 368 has undergone several amend
amendments, some ofwhich had been the subject matter of debates in this Court, including
the cases of Kesavananda and Minerva Mills. Leaving aside other
details, we may reproduce the relevant of the provisions now
contained in Article 368 as under: –
“368. Power
Power of Parliament to amend the Constitution and proceduretherefore. -(1)
(1) Notwithstanding anything in this Constitution,Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the
introduction of a Bill for the purpose in either House of Parliament,
and when the Bill is passed in each House by a majority of the total
membership of that House and by a majority of not less than two
two-
thirds of the members of that House present and voting, it shall be
31 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
32
presented to the President who shall give his assent to the Bill and
thereupon the Constitution shall stand amended iin
accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in
in-
(a) article 54, article 55, article 73, article 162, article 241 or article
279-A,
A, or (b) Chapter IV of Part V, Chapter V of Part VI, or ChapterI of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
(3) Nothing in article 13 shall apply to any amendment made under
this article.
32.2.3. After the amendments approved in Kesavananda, Article 368
starts with a non obstante clause and further to that, sub-clause (3)
thereof re–emphasises
emphasises that nothing in Article 13 would apply to any
amendment made under Article 368. In this context, a look at Article
13 of the Constitution
Constitution is apposite, which otherwise declares void
every law which is inconsistent with or is in derogation of
Fundamental Rights but, the inserted sub
sub-clause (4) keeps its
operation away from the amendment made under Article 368. Article
13 reads as under: –
“13. Laws inconsistent with or in derogation of the fundamental
rights. –
(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent
32 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
33
with the provisions of this Part,
Part, shall, to the extent of suchinconsistency, be void.
(2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,
requires,-
(a) “law” includes any Ordinance, order, bye
bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law;
(b) “laws in force” includes laws passed or made by a Legislature or
other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular
particular areas.
(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.”
32.3. By way of the amendment in question, sub
sub-clause (6) and
Explanation have been added to Article 15 and sub
sub-clause (6) has
been added to Article 16 of the Constitution of India. These two
Articles, 15 and 16, being the subject of the amendment in question
and forming the core of controversy before us, need a closer look.
For the purpose, it is relevant to indicate at this stage itself tthat these
Articles have undergone several changes from time to time. For the
purpose of the present discussion, worthwhile it would be to take
note of these Articles as originally adopted and as now existing after
33 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
34
various amendments, including the 103rd Co
Constitution Amendment
(25).
32.3.1. Articles 15 and 16, in their original form were as under: –
“15. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.
birth – (1) The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them. (2) No citizen shall, on grounds only of
religion, race, caste, sex, place of birth or any of them, be subject to
any disability, liability, restriction or condition with regard to
to-
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to
the use of the general public.
pub
(3) Nothing in this article shall prevent the State from making any
special provision for women and children.
16. Equality of opportunity in matters of public employment. -(1)
There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any
office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any employment
orr office under the State.
(3) Nothing in this article shall prevent Parliament from making any
law prescribing, in regard to a class or classes of employment or
34 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
35
appointment to an office under any State specified in the First
Schedule or any local or other
authority within its territory, any requirement as to residence within
that State prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the State.”
32.3.2. These Articles 15 and 16, as now existing after various
amendments, including the amendment in question, read as under: –
“15. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth -(1)
(1) The State shall not discriminateagainst any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
(2) No citizen shall,
shall, on grounds only of religion, race, caste, sex,place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to-
to
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to
the use of general public.
(3) Nothing in this article shall prevent the State from making any
special provision for women
wo and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement of
35 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
36
any socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled
heduled Tribes.
(5) Nothing in this article or in sub-clause
sub clause (g) of clause (1) of article
19 shall prevent the State from making any special provision, by law,
for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled
heduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission
to educational institutions including private educational institutions,
whether aided or unaided by the State, other than the minority
educational institutions
institutions referred to in clause (1) of article 30.
(6) Nothing in this article or sub-clause
sub clause (g) of clause (1) of article 19
or clause (2) of article 29 shall prevent the State from making,-
(a) any special provision for the advancement of any economically
weaker sections of citizens other than the classes mentioned in
clauses (4) and (5); and
(b) any special provision for the advancement of any economically
weaker sections of citizens other than the classes mentioned in
clauses (4) and (5) in so far as such
such special provisions relate to their
admission to educational institutions including private educational
institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of article
30, which in the case of reservation would be in addition to the
existing reservations and subject to a maximum of ten per cent. of the
total seats in each category.
Explanation. For the purposes of this article and article 16,
Explanation.-For
“economically weaker sections” shall be such as may be notified by
36 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
37
the State from time to time on the basis of family income and other
indicators of economic disadvantage.
16. Equality of opportunity in matters of public employment. – (1)
There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of,
of, any employment or office under
the State.
(3) Nothing in this article shall prevent Parliament from making any
law prescribing, in regard to a class or classes of employment or
appointment to an office under the Government of, or any local or
other authority
ority within, a State or Union territory, any requirement as
to residence within that State or Union territory prior to such
employment or appointment.
(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments
appointments or posts in favour of
any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the State.
(4-A)
A) Nothing in this article shall prevent the State from making any
provision for reservation
reservatio in matters of promotion, with consequential
seniority, to any class or classes of posts in the services under the
State in favour of the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not adequately represented in
the services under the State.
37 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
38
(4-B)
B) Nothing in this article shall prevent the State from considering
any unfilled vacancies of a year which are reserved for being filled
up in that year in accordance with any provision for reservation
made under clause (4) or clause (4-A)
A) as a separate class of
vacancies to be filled up in any succeeding year or years and such
class of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for
determining the ceiling of fifty
fifty per cent. reservation on total number
of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the
affairs of any religious or denominational institutio
institution or any member
of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
(6) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of
any economically weaker sections of citizens other than the classes
mentioned in clause (4), in addition to the existing reservation and
subject to a maximum of ten per cent. of the posts in each category.”
32.3.3. Articles 14, 17 and 18,
18, forming the integral part of Equality
Code along with the afore-mentioned
afore mentioned Articles 15 and 16, could also
be taken note of as under: –
“14. Equality before law. -The
The State shall not deny to any personequality before the law or the equal protection of the laws within the
territory of India.
38 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
39
17. Abolition of Untouchability. -“Untouchability”
“Untouchability” is abolished and
its practice in any form is forbidden. The enforcement of any
disability arising out of “Untouchability” shall be an offence
punishable in accordance with law.
18. Abolition of titles. -(1)
(1) No title, not being a military or academicdistinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any
office of profit or trust under the State, accept without the consent of
the President any title from any foreign State.
(4) No person holding any office of profit or trust under the State
shall, without the consent of the President, accept any present,
emolument, or office of any kind from or under any foreign State.”
32.4. Various provisions in Part IV of the Constitution of India
laying down Directive Principles of State Policy also require a close
look, including Article 46, which has been referred to in the
Statement of Objects and Reasons for the purpose of the amendment
in question. Articles 38, 39 and 46 of the Constitution of India read
as under: –
“38. State to secure a social order for the promotion of welfare of the
people. -(1)
(1) The State shall strive to promote the welfare of thepeople by securing and protecting as effectively as it may a social
order in which justice, social, economic and political, shall inform
all the institutions of the national life.
(2) The State shall, in particular,
particular, strive to minimise the inequalitiesin income, and endeavour to eliminate inequalities in status,
39 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
40
facilities and opportunities, not only amongst individuals but alsoamongst groups of people residing in different areas or engaged in
different vocations.
voc
39. Certain principles of policy to be followed by the State.
State.- The
State shall, in particular, direct its policy towards securing-
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
(b) that the ownership
ownership and control of the material resources of the
community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or
strength;
(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against
moral and material abandonment.
*** *** ***
46. Promotion of educational and economic interests of Scheduled
Castes, Scheduled Tribes and other weaker sections. – The State shall
promote with special care the educational and economic interests of
the weaker sections of the people, and, in particular, of the
40 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
41
Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation.”
64. Thus, in almost all references to real and substantive equality,
the concept of economic justice has acquired equal focus alongside
the principles of social justice.
65. In giving effect to the rule of equality enshrined in Article 14, the
Courts have also been guided by the jurisprudence evolved by the
U.S. Supreme Court in the light of the amendment
amendments made to their
Constitution, which were founded on economic considerations.
73. In view of the principles discernible from the decisions aforesaid
as also the background aspects, including the avowed objective of
socio118 economic justice in the Constitut
Constitution, the observations of
this Court in the past decisions that reservations cannot be claimed
only on the economic criteria, apply only to class or classes covered
by or seeking coverage under Articles 15(4) and/or 15(5) and/or
16(4); and else, this Court has not put a blanket ban on providing
reservation for other sections who are disadvantaged due to
economic conditions.
77.1. As noticed, the amendment in question introduces clause (6) to
both the Articles, i.e., 15 and 16. Clause (6) of Article 15 starts with
a non obstante preposition, making it operative notwithstanding
anything otherwise contained in other clauses of Article 15 or Article
19(1)(g) or Article 29(2). Sub-clause
Sub clause (a) of clause (6) of Article 15
enables the State to make any special provisi
provision for the advancement
of any economically weaker sections of citizens and sub
sub-clause (b)
41 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
42
thereof provides for making a maximum of ten per cent. reservation
in the matter of admission to educational institutions, public
or private, barring minority educational
educational institutions. Similarly,
clause (6) of Article 16 also starts with a non obstante preposition,
making it operative notwithstanding anything otherwise contained in
other clauses of that Article and enables the State to make any
provision for the reservation
reservation of appointments or posts in favour of
any economically weaker sections of citizens to a maximum of ten
per cent. As per the Explanation to clause (6) of Article 15,
“economically weaker sections” for the purpose of both these
Articles 15 and 16 shall be such as to be notified by the State from
time to time on the basis of family income and other indicators of
economic disadvantage. However, when both these clauses exclude
from their ambit those classes who are already covered under
Articles 15(4), 15(5)
15(5) and 16(4), that is to say, the benefits under
these amended provisions do not avail to Scheduled Castes,
Scheduled Tribes, and Other Backward Classes
79. The amendment in question makes a reasonable classification
between “economically weaker sections” and other weaker sections,
who are already mentioned in Articles 15(4), 15(5) and 16(4) of the
Constitution and are entitled to avail the benefits of reservation
thereunder. The moment there is a vertical reservation, exclusion is
the vital requisite to provide
provide benefit to the target group. In fact, the
affirmative action of reservation for a particular target group, to
achieve its desired results, has to be carved out by exclusion of
others. The same principle has been applied for the affirmative
42 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
43
action of reservation qua the groups of SEBCs, OBCs, SCs, and
STs. Each of them takes reservation in their vertical column in
exclusion of others. But for this exclusion, the purported
affirmative action for a particular class or group would be
congenitally de-formative
de ative and shall fail at its inception. Therefore,
the claim of any particular class or section against its exclusion
from the affirmative action of reservation in favour of EWS has to
be rejected.
rejected
102. For what has been discussed and held hereinabove, the points
formulated in paragraph 31 are answered as follows: –
a. Reservation is an instrument of affirmative action by the State so
as to ensure all-inclusive
all inclusive march towards the goals of an egalitariansociety while counteracting inequalities; it is an instr
instrument not onlyfor inclusion of socially and educationally backward classes to the
mainstream of society but, also for inclusion of any class or section
so disadvantaged as to be answering the description of a weaker
section. In this background, reservation
reservation structured singularly oneconomic criteria does not violate any essential feature of the
Constitution of India and does not cause any damage to the basic
structure of the Constitution of India.
b. Exclusion of the classes covered by Articles 15(4), 15(5
15(5) and 16(4)from getting the benefit of reservation as economically weaker
sections, being in the nature of balancing the requirements of non
non-
discrimination and compensatory discrimination, does not violate
Equality Code and does not in any manner cause da
damage to thebasic structure of the Constitution of India.
43 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
44
c. Reservation for economically weaker sections of citizens up to tenper cent. in addition to the existing reservations does not result in
violation of any essential feature of the Constitution of India and
does not cause any damage to the basic structure of the Constitution
of India on account of breach of the ceiling limit of fifty per cent.
because, that ceiling limit itself is not inflexible and in any case,
applies only to the reservations envisaged
envisaged by Articles 15(4), 15(5)
and 16(4) of the Constitution of India.
157. The Constitution of India was amended by the Eighty sixth
Amendment Act, 2002, to include the right to education as 157. The
Constitution of India was amended by the Eightysixth A
Amendment
Act, 2002, to include the right to education.
182. The constitutional validity of clause (5) in Article 15 of the
Constitution introduced by the Constitution (93rd Amendment) Act,
2005 was made the subject matter of challenge before this Court in
Pramati Educational and Cultural Trust (Registered) and Others v.
Union of India and Others, (2014) 8 SCC 1.
183. The constitutional validity of clause (5) in Article 15 was
essentially challenged on the ground that the same is violative of
Article 19(1)(g)
19(1)(g) of the Constitution, inasmuch as it compels the
private educational institutions to give up a share of the available
seats to the candidates chosen by the State and such appropriation of
seats would not be a regulatory measure and not a reasonable
restriction
ction on the right under Article 19(1)(g) of the Constitution
within the meaning of Article 19(6) of the Constitution. It was further
argued that clause (5) of Article 15 of the Constitution, as its very
44 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
45
language, indicates would not apply to the minority educational
institutions referred to in clause (1) of Article 30 of the Constitution.
It was argued that thus it violated Article 14 because the aided
minority institutions and unaided minority institutions cannot be
treated alike. It was also argued that clause (5) of Article 15 of the
Constitution is discriminatory and violative
v lative of the equality clause in
Article 14 of the Constitution, which is a basic feature of the
Constitution.
233. The doctrine of Basic Structure includes general features of the
broad democracy, supremacy of the Constitution, rule of law,
separation of powers, judicial review, freedom and dignity of the
individual, unity and integrity of the nation, free and fair education,
federalism and secularism. The Basic Structure Doctrine admits to
identify a philosophy upon which a Constitution is based. A
Constitution stands on certain fundamental principles which are its
structural pillars and if those pillars are demolished or damaged, the
whole constitutional edifice may fall down. The metap
metaphor of a living
Constitution is usually used in its interpretive meaning i.e., that the
language of the document should evolve through judicial decisions
according to the changing environment of society. A Constitution’s
amendment process provides another mechanism for such evolution,
as a ‘built-in
‘built in provision for growth’. Prima facie, the view that a
Constitution must develop over a period of time supports a broad use
of the amendment power. Nevertheless, even if we conceive of the
Constitution as a living tree, which must evolve with the nation’s
growth and develop with its philosophical and cultural advancement,
45 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
46
it has certain roots that cannot be uprooted through the growth
process. In other words, the metaphor of a living tree captures the
idea of certain
certain constraints: ‘trees, after all, are rooted, in ways that
other living organisms are not’. These roots are the basic principles
of a given Constitution. [Reference:
[Reference: “Unconstitutional Constitutional
Amendments : A Study of the Nature and Limits of Constitu
ConstitutionalAmendment Powers”, Yaniv Roznai, Thesis, February, 2014]
2014]”
52. A perusal of the above referred judgment shows that EWS
reservation is vertical reservation and it is to be applied accordingly
53. Reference at this stage can further be made to a judgment of
Hon’ble the Supreme Court of India in a case of Rajesh Kumar Daria
vs. Rajasthan Public Service Commission and others, 2007 (4) SCT 99,
wherein Hon’ble the Supreme Court has held that the Selecti
Selection Processadopted by RPSC was contrary to the reservation policy contai8ned in
Rule 9 (3) of the Service Rule. The relevant portion of the judgment
reads as under:-
under:
“5.
5. Before examining whether the reservation provision
relating to women, had been correctly
correctly applied, it will beadvantageous to refer to the nature of horizontal reservation
and the manner of its application. In Indra Sawhney v. Union
of India [1992 Supp.(3) SCC 217], the principle of horizontal
reservation was explained thus (Pr.812) :
“… 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,
46 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
47
Scheduled
d 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
The persons selected against the quota 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
these horizontal reservations, the percentage of
reservations in favour of backward class of citizens remains –
and should remain – the same.”
A special provision for women made under Article 15(3), in
respect of employment, is a special reservation as contra
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. State of U.P., 1995(4) SCT
403 : [1995(5) SCC 173] thus:
“…. The proper and correct course is to first fill up the Open
Competition quota (50%) on the basis of merit; then fill up each
of the social reservation quotas, i.e., S.C., S.T. and B.C; the third
step would be to find out how many candidates belonging to
47 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
48
special reservations have been selected on the above basis. If thequota 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
so satisfied, the requisite number of specialreservation 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
compartmentalized 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 percent in favour of
special categories, overall, may be satisfied or may not be
satisfied.)
6. We may also refer to two related aspects before considering
the facts of this case. The first is about the description of
horizontal reservation. For example, if there are 200 vacancies
and 15% is the vertical reservation for SC and 30% is the
horizontal reservation for women, the proper description of the
number of posts reserved for SC, should be : “For SC : 30 posts,
of which 9 posts are for women”. We find that many a time tthis is
wrongly described thus : “For SC : 21 posts for men and 9 posts
for women, in all 30 posts”. Obviously, there is, and there can
be, no reservation category of ‘male’ or ‘men’.
7. The second relates to the difference between the nature of
vertical re
reservation and horizontal reservation. Social48 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
49
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’.
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
reserved posts and if they are appointed to the non
non-reservedposts on their own merit, their
th numbers will not be countedagainst the quota reserved for the 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
reserved for SC candidates,it cannot be said 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 – Indira Sawhney (Supra), R.K. Sabharwal v. State of
Punjab, 1995(2) SCT 646 : (1995(2) SCC 745), Union of India
v. Virpal Singh Chauvan, 1995(4) SCT 695 : (1995(6) SCC 684
and Ritesh R. Sah v. Dr. Y.L. Yamul, 1996(2) SCT 524 : (1996(3)
SCC 253)]. 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 caste
castes inorder of merit and then find out the number of candidates among
them who belong to the special reservation group of ‘Scheduled
49 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
50
Castes-Women’.
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 co
contains four SC womencandidates, then there is no need to
disturb the list by including any further SC women 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
accordance with merit, will have to be included in the list andcorresponding 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 women SC candidates. [But if the
list of 19 SC candidates contains more than four women
candidates, selected on own merit, all of them will continue in
the list and there is no question of deleting the excess women
50 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DBCWP-4264-2021
2021 and connected cases
51
candidate on the ground that ‘SC-women’
women’ have been selected inexcess of the prescribed
prescribed internal quota of four.]
9. In this case, the number of candidates to be selected under
general category (open competition), were 59, out of which 11
were earmarked for women. When the first 59 from among the
261 successful candidates were taken and listed as per merit, it
contained 11 women candidates, which was equal to the quota
for ‘General Category – Women’. There was thus no need for any
further selection of woman candidates under the special
reservation for women. But what RPSC did was to take only the
first 48 candidates in the order of merit (which contained 11
women) and thereafter, fill the next 11 posts under the general
category with woman candidates. As a result, we find that
among 59 general category candidates in all 22 women have
been selected consisting of eleven women candidates selected on
their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25,
31, 35 & 41 of the Selection List) and another eleven
(candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 &
80 of the Selection
Selection List) included under reservation quota for‘General Category-Women’.
Category This is clearly impermissible. The
process of selections made by RPSC amounts to treating the
20% reservation for women as a vertical reservation, instead of
being a horizontal reservation within the vertical reservation.
10. Similarly, we find that in regard to 24 posts for OBC, 19
candidates were selected by RPSC in accordance with merit
from among OBC candidates which included three woman
51 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
52
candidates. Thereafter, another five women
omen were selected under
the category of ‘OBC – Women’, instead of adding only two
which was the shortfall. Thus there were in all 8 women
candidates, among the 24 OBC candidates found in the
Selection List. The proper course was to list 24 OBC candidates
as per the merit and then find out number of woman candidates
among them, and only fill the shortfall to make up the quota of
five for woman.
11. The appellants’ grievance that the selection process adopted
by RPSC was contrary to the reservations policy ccontained in
Rule 9(3) is justified. But the question is whether the entire
selection should be set aside and whether all appellants should
be granted relief. On completion of the selection process, 97
candidates were appointed in the year 2002 and have bee
been
serving as Judicial Officers for more than five years. There has
also been a subsequent selection and appointments in the year
2005. Further all the selected candidates are not impleaded as
parties. Even from among the original ten writ petitioners, only
seven are before us. On the facts and circumstances, we do not
propose to disturb the selection list dated 30.12.2001 or
interfere with the appointments already made in pursuance of it.
We will only consider whether the appellants before us are
entitled to
o relief. We find that even if the selection list had been
prepared by applying horizontal reservation properly, only the
appellant (Rajesh Kumar Daria) in this appeal, and appellant
Nos.3 and 6 in the connected appeal (Mohan Lal Soni and Sunil
52 of 53
::: Downloaded on – 10-11-2024 11:21:51 :::
Neutral Citation No:=2024:PHHC:138139-DB
CWP-4264-2021
2021 and connected cases
53
Kumar Gupta)
Gupta will get selected. The other appellants were not
eligible to be selected.”
selected.
54. A perusal of the above judgment shows that Hon’ble the
Supreme Court of India has explained the vertical as well as horizontal
reservation and its application.
app
55. In view of the above mentioned judgments passed by Hon’ble the
Supreme Court of India, we are of the view that the action of the State is in
violation of Articles 15 and 16 of the Constitution of India.
56. Accordingly, the present petitions are allowed. The category-
wise merit lists dated 17.07.2020 for the General Category (Code No. 71)
and Economically
Economic Weaker Section Category (Category Code No. 88) are
quashed. Clause 8 of the office memorandum dated 30.10.2020 along with
clarification/instructions issued on 18.03.2021,, are also set aside.
57. The State is directed to reframe//re-cast the merit list for the
appointment to the post of Agriculture Development Officer
Officer, by including
the petitioners belonging to EWS Category on the basis of their merit and
not on account of reservation.
58. It is further clarified that EWS candidates who are selected on
the basis of merit and not on account of reservation, are not to be counted
towards the quota meant
me for reservation.
59. All the pending applications, if any, also stand disposed of.
(SURESHWAR THAKUR) (SUDEEPTI SHARMA)
JUDGE JUDGE
14.10.2024
G Arora
Whether speaking/reasoned : Yes
Whether reportable : Yes
53 of 53
::: Downloaded on - 10-11-2024 11:21:51 :::