IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 400 of 2010 (S/S) Smt. Bindra Rawat ……..Petitioner Versus State of Uttarakhand and another. …Respondents. Present: Mr. Kishore Kumar, Advocate for the petitioner. Mr. Anil Kumar Bisht, Brief Holder for the State of Uttarakhand. Mr. B.D. Kandpal, Advocate for respondent no. 2. Hon’ble Sudhanshu Dhulia, J.(Oral) Heard Mr. Kishore Kumar, Advocate for the petitioner, Mr. Anil Kumar Bisht, Brief Holder for the State of Uttarakhand and Mr. B.D. Kandpal, Advocate for respondent no. 2. The petitioner was a candidate for an examination conducted by the Public Service Commission, Uttarakhand. The concerned examination was for the posts of Review Officers / Assistant Review Officers for Secretariat in the State of Uttarakhand. It is an admitted fact that the petitioner is a woman candidate. It is again admitted that the petitioner belongs to Other Backward Class (from hereinafter referred to as OBC) category. It is again admitted that the petitioner is a permanent resident /domicile of Uttarakhand. On these admitted facts, the petitioner had filled the form for appearing in the said examination. In Column No. 6, she stated that she is female and again at Column No. 8 in the OMR sheet, she stated that she is a domicile of Uttarakhand. Apart from this, there was another column being Column No. 12 heading of which is “Reservation Category (Only for domicile of Uttaranchal). This column was divided into three parts. The first part of Column No. 12 has 2 three columns such as SC, ST and OBC. The second part of Column No. 12 starts with “If Applicable”, which again has a sub column of “Dependent of Freedom Fighter, Skilled Player, Working Government Servant of Uttaranchal and Uttarakhand Female”. There was another part which also starts with “If Applicable”, in which sub categories such as “Blindness or Low Vision, Hearing Impairment, Locomoter Disability or Cerebral Palsy” have been mentioned. This particular Column as it stood in the OMR form is reproduced below:- 14. DATE/YEAR OF ACQUIRING MINIMUM QUALIFICATION U;wure 'kSf{kd vgZrk izkIr djus dh frfFk@o"kZ 12. RESERVATION CATEGORY (Only for domicile of Uttaranchal) (vkj{k.k Js.kh (dsoy mRrjkapy ds ewy fuoklh ds fy;s) IF APPLICABLE ;fn ykxw gks IF APPLICABLE ;fn ykxw gks PH Category/fodykaxrk Js.kh 13. OPTIONAL SUBJECT & CODE (IF APPLICABLE) oSdfYid fo"k; dksM ;fn ykxw gks DATE/frfFk MONTH/ekg YEAR/o"kZ O.B.C. SC/ vuq- tkfr ST/ vuq- t tkfr OBC/ v-fi- oxZ DFF/ Lo- la-ls- vkfJr (Only for domicile of Uttaranchal) EXS/ HkwriwoZ lSfud SKILLED PLAYER/ dq'ky f[kykM+h WORKING GOVT. SERVANT OF UTTARANCHAL/ mRrjkapy ljdkj ds dk;Zjr deZpkjh UF/ mRrjkapy efgyk BLINDNESS OR LOW VISION/ n`f"Vghurk ;k de n`f"V HEARING IMPAIRMENT/ Jo.k gzkl LOCOMOTER DISABILITY OR CEREBRAL PALSY/ pyu lecU/kh fu%’kDrrk ;k izefLrdh; vax?kkr 1 2 0 9 1 1 2 0 0 5 15. PIN CODE OF MAILING ADDRESS AS MENTIONED IN POINT NO. 10 ogh fiu dksM vafdr djsa tks dz la 10 esa vafdr fd;k x;k gS A 16. EXAMINATION CENTRE CODE ijh{kk dsUnz dksM 17. NAME & COMPLETE MAILING ADDRESS (with black ball pen only) vH;FkhZ dk uke rFkk i= O;ogkj dk iwjk irk (dsoy dkys cky isu ls ) 18. PERMANENT ADDRESS OF THE CANDIDATE (with black ball pen only) vH;FkhZ dk LFkk;h irk (dsoy dkys cky isu ls) 2 4 8 0 0 1 1 7 BINDRA RAWAT 35 RAJEET VOLONY BEHIND K.C. PUBLIC SCHOOL NEAR GOVINDGARH UTTARAKHAND DDN PIN CODE/ fiu dksM 248001 VILLAGE KANDI MALLI P.O. SARAB TALLA PATI – SILWAD DIST – TEHRI GARHWAL UTTRAKHAND PIN CODE/ fiu dksM 248179 19. ?kks"k.kk 1- vks-,e-vkj- vkosnu i= esa nh xbZ lwpuk,a lR; ,oa lgh gSa A 2- eSa ,rn~}kjk ?kks"k.kk djrk@djrh gWwa fd eSaus foKkfir dh xbZ ik=rk dh 'krsZa lko/kkuhiwoZd i<h gS] os eq>s ekU; gSa vkSj eSa ;g 'krsZa iwjk djrk@djrh gWwa A 3- eSa ;g Hkh ?kks"k.kk djrk@djrh gWwa f dbl vkosnu i= esa fn;s x;s lkjs fooj.k@lwpuk,a lR; ,oa lgh gSa vkSj esjs fooj.k @lwpukvksa esa dksbZ rF; esjs }kjk fNik;k ik;k tk, rks esjk vH;FkZu fujLr fd;k tk, A 4- eSa jkT; ljdkj@Hkkjr ljdkj dk fu;fer deZpkjh gWwa@ugh gWwa vkSj eSaus viuk vkosnu Hkstus dh lwpuk l{ke vf/kdkjh dks fn- &&&&&&&&dks fof/kor vukifRr izek.k i= iznku djus ds fy, izLrqr dj nh gS A 3 20- LFkku &&&&&&&&& fnukad &&&&&&&& uksV % 1- gLrk{kj cky IokbaV isu ls djsa A 2- vH;FkhZ ds gLrk{kj ugha gksus ij vkosnu i= fujLr dj fn;k tk,xk A 21- &&&&&&&&&&&& vH;FkhZ ds gLrk{kj dk;kZy; iz;ksxkFkZ While filling this form, the petitioner gave her category as an OBC. Presuming that she has already filled Column No. 12 as OBC, which also means that such OBC candidates have to be those who are domicile of Uttarakhand, it is by presumption and logic that the petitioner is a woman and domicile of Uttarakhand and therefore claiming reservation as an OBC category candidate. The petitioner was given all these benefits but was not given the benefit of Uttarakhand Mahila (Uttarakhand Female) as stated earlier in sub-category of Column No. 12 and since only such candidates have to fill this category if it was applicable, the petitioner chose not to fill this sub-category as she had already indicated that she is a female, domicile of Uttarakhand and belongs to an OBC category. The candidature of the petitioner was not considered. There was a horizontal reservation for Uttarakhand Females. This reservation was not given to the petitioner. Aggrieved the petitioner filed the present writ petition before this Court, in which following interim order was passed on 1.9.2010: “Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the impugned order dated 20.05.2010, whereby her candidature was rejected on the ground of non- filling of Uttarakhand Mahila Column in the OMR form. On 7.6.2010, time was granted to the respondents to file counter affidavit but the same has yet not been filed. 4 I have perused the application form of the petitioner, which is annexed as annexure-4 to the writ petition. In column No. 12 of the OMR form under the caption reservation category (Only for domicile of Uttaranchal), the petitioner has mentioned O.B.C. category. Mr. B.C. Pande, learned counsel for respondent No. 2, has stated that the petitioner did not fill the sub-category of Uttaranchal Female of column No. 12. On perusal of OMR form, filled up by the petitioner, it is revealed that the sub-category of Uttaranchal Female of column No. 12 was to be filled up only if applicable. The petitioner has applied under the O.B.c. category (female) and the word – ‘FEMALE’ has also been mentioned in the OMR form, which is annexed as annexure 4 to the writ petition. Therefore, rejection of the application on the ground that she does not lie under the category of O.B.C. (female), is erroneous in law. The arguments of learned counsel for respondent No. 2 cannot be accepted for the simple reason that the sub-category of Uttaranchal female in column No. 12 should have been filled up by the petitioner. Prima facie it seems to be for a general category female who does not fall under the reserved category. As an interim measure, respondent No. 2 is directed that the petitioner be provisionally permitted to appear in the written (main) examination since she got 119 marks in the preliminary examination and cut off marks for the same is 91 for the O.B.C. (female) category. (Stay application No. 4201 of 2010, stands disposed of). Learned counsel for respondents pray for and are allowed four weeks’ time to file counter affidavit. Certified copy of the order be issued to the learned counsel for the parties today on usual charges.” The case of the petitioner was that she had qualified in the preliminary examination under a category of OBC who is also an Uttarakhand female. Aggrieved she filed this writ petition, in which the aforesaid interim order was passed in favour of the petitioner. Consequently the petitioner appeared in the written examination. It is again an admitted case that in case the petitioner is treated to be an OBC category belonging to Uttarakhand, she had 5 secured 119 marks, whereas the cut off marks for such candidate was 91. In the counter affidavit though the Public Service Commission has objected that the petitioner has not claimed the reservation of Uttarakhand female and therefore such a reservation was not liable to be given to her. It was further contended that the reservation in OBC category is a vertical reservation and the claim of further reservation of Uttarakhand female, which is horizontal reservation, such reservation must be specifically asked for. Since this has not been done, such reservation was not liable to be given to the petitioner. The respondents in their favour have relied upon a decision dated 5.5.2010 passed by a learned Single Judge of this Court in Writ Petition (S/S) No. 313 of 2010, which was upheld by a Division Bench of this Court in Special Appeal No. 76 of 2010, vide order dated 8.6.2010, where a female candidate, who belonged to general category had given in Column 6 that she is a female and thereafter in Column 8 that she is a permanent resident / domicile of Uttarakhand but did not indicate in Column 12, meaning thereby she failed to indicate any reservation in Column 12. Learned Single Judge as well as the Division Bench of this Court were of the view that the reservation for Uttarakhand female should have been sought and since it was not indicated in OMR sheet that she belonged to Uttarakhand, no presumption can be drawn that she also wants to get the benefit of reservation of Uttarakhand female. Therefore, her contention for being considered as Uttarakhand female was never accepted and the contention of the Public Service commission was upheld. 6 This Court has perused the said judgment. There is a slight though remarkable difference between the facts of that case and the present case. Admittedly both the cases pertain to the same examination, the difference though is that in the said judgment passed by the learned Single Judge which was upheld by the Division Bench, the candidate was of a general category candidate, who did not fill Column No. 12 at all. In the case at hand, the petitioner is a female candidate and is permanent resident / domicile of Uttarakhand had filled Column No. 12, which reads as under:- Column 12 RESERVATION CATEGORY (Only for domicile of Uttaranchal) IF APPLICABLE / IF APPLICABLE SC / ST/ OBC/ DFF/ (Only for domicile of Uttaranchal) EXS / SKILLED PLAYER/ WORKING GOVT. SERVANT OF UTTARANCHAL UF/ BLINDNESS OR LOW VISION / HEARING IMPAIRMENT LOCOMOTER DISABILITY OR CEREBRAL PALSY / A bare perusal of the aforesaid column shows that the contention of the petitioner is not without logic or reasoning that once she had already filled as OBC female candidate in that column there was no further for her to fill any other column. In the cases relied upon by the Public Service Commission, the candidate had failed to give any indication in Column No. 12. The present writ petition being on different footing, once the petitioner has 7 shown as female candidate and domicile of Uttarakhand and as also belongs to OBC category and the form being structured in that particular manner, a reasonable apprehension in the mind of the candidate was that she was not required to give any further indication in Column No. 12 and therefore benefit must be given to the petitioner as far as filling of form is concerned. Since there is an obvious ambiguity in the said form/instructions in these instructions at column no. 12, the principle of Contra Proferentem will apply and the benefit will be given to the petitioner. The principle of Contra Proferentem though is applicable in contractual matters where there is an interpretation of any clause of contract and the principle is that in case of an ambiguity, the benefit must go against the person who has written the terms of contract. It would only be just and fair if the same principle is applicable in the present case as well. In short, the principle of contra proferentem would therefore mean that where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This principle has been applied recently in the judgment of the Apex Court in United India Insurance Co. Ltd. V. Pushpalaya Printers (2004) 3 SCC 694. Even this Court has relied upon the said judgment in Alstom Hydro Frane V. Tehri Hydro Development Corporation & Anr. reported in AIR 2009 Uttarakhand 61. The petitioner is liable to be given reservation of Uttarakhand female. The writ petition is therefore allowed. The petitioner has already appeared in the written examination. The Court has been informed that the result has not been declared as yet. The State Public 8 Service Commission is hereby directed to declare the result of the petitioner forthwith. No order as to costs. (Sudhanshu Dhulia, J.) 9.8.2011 Rathour