IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1053 of 2011 (S/S) Pawan Singh and others ………..Petitioners Versus State of Uttarakhand and others …….Respondents Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, learned counsel for the petitioners. Mr. Anil Bisht, learned Brief Holder for the State/respondent nos.1, 3 & 4. Mr. B.D. Kandpal, learned counsel for the respondent no.2. Dated: 7th December, 2011 Hon’ble V.K. Bist, J. In pursuance of advertisement issued by respondent no.2 for the post of Junior Engineer (Civil and Technical) in Irrigation Department, the petitioners appeared in written examination held on 8th & 9th January, 2010. Upon being declared successful in the written examination, the petitioners were called for interview held in the month of October, 2010. The final result was declared on 15.05.2011, in which all the petitioners were declared successful. In the result so declared on 15.05.2011, petitioner nos.1 & 2 were selected and recommended for the post of Junior Engineer (Civil) in Irrigation Department and their names were placed at Serial no.59 & 75, respectively, amongst those selected for Irrigation Department. Similarly, all other petitioners were selected and recommended for appointment for the post of Junior Engineer (Civil) in Jal Sansthan and their names were placed at Serial nos.29, 30, 41 and 67, respectively. 2 2. It appears that the selection, in respect of more vacancies than the number of vacancies advertised in the Public Works Department, was challenged by certain persons by filing a writ petition before this Court. The same was dismissed on the ground of locus- standi. The order of the Hon’ble Single Judge was challenged by those persons in Special Appeal no.83 of 2011 before the Division Bench of this Court. The Special Appeal was allowed and the competent authority was restrained from making appointments in excess of the vacancies advertised in respect of Public Works Department. 3. All the petitioners belong to General Category except petitioner no.6, who belongs to O.B.C. Category. The advertisement itself provided horizontal reservation to the extent of 30% to the women candidates. Horizontal reservation provided for women candidates was introduced by a Government Order dated 18.07.2001 and the modalities of applying such reservation were explained in subsequent Government Order dated 21.06.2002. Such horizontal reservation was provided in the advertisement by virtue of the Government Order dated 18.07.2001, which provides for horizontal reservation to the extent of 20% to the women candidates. The said Government Order further provided that women candidates shall be given horizontal reservation within their own category. The horizontal reservation quota available to the women candidates was thereafter increased from 20% to 30% by the subsequent Government Order dated 24.07.2006. In Paragraph 4 of the Government Order dated 21.06.2002, it was provided that in direct recruitment to State Services, the posts reserved for women candidates shall not be carried forward, if suitable candidates belonging to the said category are not available and such posts shall be filled by suitable male candidates. Again the State Government issued another Government Order dated 28.12.2004, wherein it was provided that the State shall make reasonable efforts to fill up the vacancies horizontally reserved for women candidates and if suitable women candidates are not available, then the vacancies shall be carried forwarded thrice and only after carry forwarding the vacancies for three times, if no suitable woman candidate is available than only the vacancy could be filled by suitable male candidate. In view of the aforesaid Government Order dated 28.12.2004, as many as 125 vacancies on the post of Junior Engineer (Civil) have been carried forward in the aforesaid selection, due to non-availability of women candidates. This is in addition to reserved vacancies, which were carried forward for persons belonging to other categories. 4. As stated above, the petitioners were selected and recommended, as per the earlier result declared on 15.05.2011, however, in the revised list declared after reducing number of vacancies in Public Works Department, the names of the petitioners have been dropped from the select list. This could not have been 4 done, if the vacancies earmarked for the women candidates were not carried forward. 5. Learned Senior Advocate for the petitioners submitted that the concept of horizontal reservation has been clarified by the Hon’ble Supreme Court in various authoritative pronouncements and it is now settled that posts, earmarked to be filled by applying horizontal reservation, cannot be carried forward in future selections. He submitted that the respondents have acted in total disregard of such clear legal position, which has resulted in miscarriage of justice. In support of his submission, he relied on the judgment of the Hon’ble Apex Court reported in (1992) Supp. (3) Supreme Court Cases 217 “Indra Sawhney and others Vs. Union of India and others” and (2010) 3 Supreme Court Cases 119 “Jitendra Kumar Singh and others Vs. State of Uttar Pradesh and others”. He further submitted that the State Government by realizing its mistake, issued another Government Order on 29.08.2011, providing therein that seats under the horizontal reservation for women candidates, if not filled, shall not be carried forward. He also submitted that very few women candidates pursue Degree/ Diploma Course in Civil Engineering due to tough field conditions, which they have to face after appointment. The favorite courses amongst women candidates are Electronics, Electrical, Pharmacy, Computer Science, Information Technology etc., which do not require outdoor activities. He further submitted that only about 30 women candidates had applied for the post of Junior Engineer (Civil) pursuant to advertisement in question. The number of women candidates would not go up even in future selections, therefore, by applying carry forward principle, no useful purpose would be served and 30% vacancies on the post of Junior Engineer (Civil) cannot be filled. Learned Senior Advocate for the petitioners submitted that the action of the respondents by not filling the post, which were earmarked for women candidates under horizontal reservation by the General Category candidates, is illegal. 6. Shri Anil Bisht, learned Brief Holder for the State, on the other hand, submitted that since the Public Service Commission has prepared the merit list keeping in view the Government Orders dated 21.06.2002, 28.12.2004 and 14.07.2006, the candidature of the petitioners cannot be considered. He further submitted that the Government Order dated 29.08.2011 is prospective in nature, hence the petitioners cannot be granted benefit on the basis of said Government Order. He drew attention of this Court towards Paragraph 84 of Jitendra Kumar’s case (Supra) and contended that ratio of law cited in the said case, is not applicable in the instant case. He submitted that in Jitendra Kumar’s case (Supra), there was a provision in the advertisement itself that if a suitable woman candidate is not available for the post reserved under horizontal reservation, then such a post shall be filled from the suitable male candidate. He submitted that in view of the clear-cut instructions in 6 that matter, the Court held that the post could not be carried forward, but in the present case, on the date when the posts were advertised, the Government Order dated 28.12.2004 was in existence. The said Government Order clearly provides that the posts earmarked for the women candidates under horizontal reservation shall be carried forward. Learned Brief Holder for the State submitted that the respondents, in view of Government Order dated 28.12.2004, have rightly carried forward the posts. He then referred to paragraph nos.809, 816, 817 and 859 of Indra Sawhney’s case, wherein it is mentioned that the reservation should not exceed 50% of total posts, but in case in hand, if the seats of women candidates under horizontal reservation are permitted to be filled by male candidates, the quota shall be exceeded by 50%. He then relied upon Paragraph nos.4 & 5 of the judgment reported in 1994 Supp. II SCC L& S Page 490 “Harish Chandrar Ram Vs. Mukh Ram Dubey and others” and submitted that even the reserved candidates are not available, the same posts cannot be filled by General Category candidates, unless the posts are de-reserved. 7. Shri B.D. Kandpal, learned counsel for the respondent no.2-Uttarakhand Public Service Commission, Haridwar submitted that in compliance of the direction issued by the Division Bench of this Court in Special Appeal no.83 of 2011, the Public Service Commission, Haridwar revised the select list to the extent of advertised posts only. By doing so, the names of the petitioners, who were low in merit, have gone out of the select list. He submitted that in case, direction is issued for considering the case of the petitioners against the posts reserved for women candidates under horizontal reservation, the Public Service Commission, Haridwar is required to prepare a fresh select list. 8. It is true that at the time of declaration of result, the Government Order dated 28.12.2004 was in existence and the respondents issued the select list by leaving the unfilled vacancies to be filled in future as per the said Government Order. The State Government by realizing its mistake, issued Government Order no.868/xxx (2)/2011 dated 29.08.2011, in the light of the judgment of the Hon’ble Apex Court and clarified that the seats under the horizontal reservation for women candidates, if not filled, shall not be carried forward. Thus, it is clear that the earlier Government Order dated 28.12.2004, was against the spirit of the Hon’ble Supreme Court’s judgment. The Hon’ble Supreme Court, in the matter of Jitendra Kumar Singh’s case, has considered the observation of the Constitutional Bench in the case of Indra Sawhney and others Vs. Union of India and others and held that in case of horizontal reservation, the carry forward rule would not be applicable. Relevant paragraphs of the judgment are being reproduced below:- “40. The Division Bench in the impugned judgment has traced the history of reservation at considerable length. It has also distinguished between vertical and horizontal reservations. It has also correctly concluded that in case of horizontal reservation, the carry-forward rule would not be applicable. All these issues are no longer res integra, in view of the authoritative judgment rendered in Indra Sawhney. It can also be no longer disputed that reservation under Article 16 (4) of the Constitution of India aims at group backwardness. It provides for group right. Article 16 (1) of the Constitution of India guarantees equality of opportunity to all citizens in matters relating to employment. However, in implementing the reservation policy, the State has to strike a balance between the competing claims of the individual under Article 16 (1) and the reserved categories falling within Article 16 (4).” “83. We have considered the submissions made by the learned counsel. It is accepted by all the learned counsel for the parties that these vacancies had to be filled by applying the principle of horizontal reservation. This was also accepted by the learned Single Judge as well as by the Division Bench. This is in consonance with the law laid down by this Court in Indra Sawhney case: (SCC pp.735-36, para 812) “812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16 (4). A little clarification is in order at this juncture: 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, Scheduled Tribes and Other Backward Classes [under Article 16 (4)] may be called vertical reservations, whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations-what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate 9 category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains-and should remain-the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.” The aforesaid principle of law has been incorporated in the Instructions dated 26-2- 1999. “85. We may also notice here that in view of the aforesaid provisions, the State has not carried forward any of the general category posts reserved for women and outstanding sportspersons. Furthermore, all the posts remaining unfilled in the category reserved for women have been filled up by suitable male candidates, therefore, clearly no post has been carried forward. Therefore, the mandate in Indra Sawhney and G.O. dated 26-2-1999, have been fully complied with. We are also of the opinion that the conclusion recorded by the Division Bench is without any factual basis. The factual position was brought to the notice of the Division Bench in the Recall/Modification Application No.251407 of 2007. However, the recall/modification application was rejected. We are, therefore, of the opinion that the Division Bench erred in issuing the directions to the appellants to fill in the unfilled vacancies reserved for women candidates from suitable male candidates. This exercise had already been completed by the appellant State.” 9. Thus, it is clear that the respondents have erred in carrying forward the unfilled vacancies earmarked for women candidates under the horizontal reservation. The same should have been filled by including the names of male candidates as per merit list. In paragraph 18 of the writ petition, the petitioners have mentioned that only about 30 women candidates had applied for the post of Junior Engineer (Civil) pursuant to the advertisement in question. This fact has not been denied by the Public Service Commission and only vague reply has been given in paragraph 15 of the counter affidavit by stating that the contents of paragraph 18 of the writ petition has no relevance in the present matter. I am satisfied with the submission of the learned Senior Advocate for the petitioners that the number of women candidates in Civil Engineering in Public Works Department would not go up even in future selections, therefore, by applying carry forward principle, no useful purpose would be served and 30% vacancies on the post of Junior Engineer (Civil) cannot be filled in near future. 10. The submission of the learned counsel for the respondents that the Government Order dated 29.08.2011 is prospective in nature and the case of the petitioners can only be considered under the Government Order dated 28.12.2004, is not correct in view of the law laid down by the Hon’ble Supreme Court in Jitendra Kumar Singh’s case. Another submission of the learned counsel for the respondents that by restraining the respondents from carrying forward the posts earmarked for women candidates under horizontal reservation, the quota of 50% shall exceed, which is against the law laid down by the Hon’ble Apex Court in Indra Sawhney’s case, has also no force as such restriction is in respect of reservation 11 only. But, in the present case such seats are being filled by General Category candidates. Another case law cited reported in 1994 Supp. II SCC L& S Page 490 “Harish Chandrar Ram Vs. Mukh Ram Dubey and others” also does not help the respondents, as in that case, it was held that reserved vacancies cannot be filled from General Category candidates, unless same are de-reserved. In that matter, the reserved posts were in respect of Scheduled Castes, Scheduled Tribes and Other Backward Class category candidates and it was held that same could be filled by General Category candidates only after completion of three years, as such posts continue to carry forward for a period of three years. 11. In view of the above discussion, the writ petition is allowed. It is held that posts earmarked to be filled in case of horizontal reservation, the carry-forward rule would not be applicable. The act of respondents of applying carry forward principle in case of horizontal reservation for women candidates is declared as illegal. Since, the Government Order dated 28.12.2004 has been superseded by the Government Order dated 29.08.2011, no order is passed for quashing the Government Order dated 28.12.2004. The respondent no.2 is directed to revise the result in respect of Combined Junior Engineer Selection Examination, 2005 by considering the male candidates in order of merit against the vacancies falling under quota of horizontal reservation meant for women candidates. Entire exercise shall be completed within a period of three months from today. (V.K. Bist, J.) Arpan 07.12.2011