IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10072 of 2010 (O&M) Date of Decision: 16.08.2010 Ruchi Manglik and others …Petitioners Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Vikas Kuthiala, Advocate for petitioners. Mr. Rameshwar Malik, Addl. A.G., Haryana for the respondent-State 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The instant petition is directed against the advertisement dated 18.06.2009 (Annexure P-4), issued by Haryana Public Service Commission (for brevity, ‘the Commission’) inviting applications for the post of Lecturer in School Cadre (Group-B), wherein 33% posts have been reserved for women and 67% posts have been reserved for men. The advertisement has specified the number of posts for numerous subjects. As per terms of advertisement, for example in the subject of Chemistry, out of 21 posts meant for General Category, 14 posts have been reserved for male and 7 C.W.P. No. 10072 of 2010 (O&M) -2- posts have been reserved for female candidates. It clearly conveys the impression that reservation is not only for the female but it is also for the male. 2. In reply to the notice of motion, a short written statement on behalf of respondent Nos. 1 and 2 has been filed. Mr. Malik, learned Additional Advocate General, Haryana, further states that the second sentence in para 5 appears to have missed the word 'not'. Therefore, he has requested us to read that sentence by using expression 'not'. In para 4 of the reply it has been made clear that notification dated 01.08.2008 did not in any way limit the right of women up to the extent of 33% alone for their inter se merit. It conveys in unmistakable terms that any women having a higher merit would be entitled to be considered as a General candidate in their respective subjects and would be entitled to appointment if her merit is higher. In other words, women could also exceed the limit of 33% and if they are in merit then they are to be given appointment on any of 67% posts set apart for General category. There is, thus, no reservation for male candidates but reservation to the extent of 33% is to be made for the female candidates. 3. Mr. Kuthiala, learned counsel for the petitioners has placed reliance on Rule 9 of Haryana State Education Lecturer School Cadre (Group C) Service Rules, 1998, (for brevity '1998 Rules') which stipulates that recruitment to the post of Lecturer to the extent of 50% is to be made by direct recruitment. The note appended to Rule 9(I)(ii) further provides reservation to the extent of 33% of posts in favour of women, which is required to be horizontal. The submission made by the learned counsel for the petitioners is that the aforesaid 1998 Rules would stand violated, if in C.W.P. No. 10072 of 2010 (O&M) -3- our illustration there is reservation of 14 posts of Lecturer in Chemistry for male and 7 are reserved for female candidates. The argument seems to be that the protection of reservation of 7 posts in favour of female is permissible but it would be absolutely incorrect to say that there would be reservation in favour of male in respect of 21 posts. It would be absolutely against the spirit of the Rule because if it is permitted then no meritorious female would be entitled to occupy the posts shown for male. Learned counsel for the petitioners has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785, which has been followed by a Division Bench of this Court in the case of Neelam Rani v. State of Punjab, 2010 (1) SCT 588. 4. Having heard learned counsel for the parties we are of the considered view that this petition deserves to be allowed. The State has conceded the legal proposition but in order to put any doubt at rest it will be appropriate to quote the principle of law laid down in Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217. Explaining the principle of horizontal reservation their Lordships’ of Hon’ble the Supreme Court in para 812 has held as under:- “ ……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 C.W.P. No. 10072 of 2010 (O&M) -4- 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 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 horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same.” 5. In respect of women special provision has been made in Article 15(3) of the Constitution for granting them employment in public offices, which is a special reservation. The same is regarded as horizontal reservation because it cut across vertical reservation. The principle was explained by Hon’ble the Supreme Court in the case of Anil Kumar Gupta v. State of U.P., (1995) 5 SCC 173, which is as under:- “ ...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 special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal C.W.P. No. 10072 of 2010 (O&M) -5- reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation 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. The aforesaid views have been followed and applied by Hon’ble the Supreme Court in Rajesh Kumar Daria (supra) on which reliance has been placed by the learned counsel for the petitioners. 7. It is, thus, clear that when selections and appointments to public offices is to be made along with post reserved for various categories then the proper course required to be adopted is to first prepare the merit list of all the candidates without any regard to reservation. In the aforesaid list the candidates belonging to reserved category including women if otherwise come on merit can also be considered and appointed such like candidates would consume General category seats and such seats are not to be counted for the purposes of quota reserved for the aforesaid segment and the percentage of reservation shall remain intact. 8. In our illustration, out of 21 posts, 7 are reserved for the female candidates and if 4 posts on account of merit out of 14 posts are consumed by female candidates then those posts have to be set off against 14 posts C.W.P. No. 10072 of 2010 (O&M) -6- meant for General category and it would not affect the 7 reserved posts when the females compete inter se. It is in the aforesaid context that the learned Additional Advocate General, Haryana, Mr. Malik has taken a right stand by stating that correction in the advertisement issued by the Commission has to be effected by the concerned department. Accordingly, we direct that the concerned department may direct the Commission to issue a corrigendum by correcting the advertisement dated 18.6.2009 (P-4). The needful shall be done within a period of two weeks from today. 9. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (RITU BAHRI) August 16, 2010 JUDGE Atul/Pkapoor