Civil Writ Petition No.10960 of 2011 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: September 16, 2011 Ajay Kumar .....Petitioner VERSUS State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Sumit Sangwan, Advocate, for the petitioner. Mr.Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Petitioner seeks his appointment to the post of Assistant Public Relation Officer (for short “APRO”), which, according to him is lying vacant and for which he was one of the applicants. In all, 20 posts of APRO were advertised on 28.10.2008. These posts were bifurcated for various categories as under:- General - 7 SC - 5 BCA - 3 BCB - 2 Civil Writ Petition No.10960 of 2011 : 2 : ESM Gen. - 1 ESM BCA - 1 ESM BCB - 1 As per the instructions and the conditions in the advertisement, children and grand-children of freedom fighters were to be considered to the extent mentioned in letter dated 26.7.1984. If the quota reserved for Ex-servicemen remained unfilled due to non- availability of suitable Ex-servicemen or their dependents, then these posts were to be offered to the dependents of freedom fighters. The petitioner applied for appointment in the reserved category of ESM general being a dependent of freedom fighter. Interview was conducted on 19.1.2010 . In the result declared, the petitioner was shown in the waiting list under the seat reserved for dependents of freedom fighters. The petitioner has averred that there were three vacancies reserved for Ex-servicemen, which had been further bifurcated as noted above. Though one vacancy meant for ESM-Gen had been filled, but the post reserved for ESM BC-A and ESM BC-B had remained unfilled as no Ex-serviceman had joined against the said post. The petitioner, therefore, seeks his appointment in this category by taking support from the instructions dated 26.7.1980. As per the petitioner, the intention of the Government as per these instructions was to ensure that the dependents of the freedom fighters were appointed against the vacancies which could not be filled by quota of ESM or ESM BC category. Since the seats meant for ESM BC category had remained unfilled, the petitioner ought to be offered this post, he being the next meritorious candidate. Civil Writ Petition No.10960 of 2011 : 3 : The petitioner had made representation on 21.4.2011. He followed it by a reminder issued on 19.5.2011 and when no action is taken, the petitioner has approached this court through the present writ petition. The replies on behalf of the Commission as well as the State have been filed. Respondents would plead that their action for not giving appointment to the petitioner on the post of APRO is legal and not arbitrary. As per the respondents, if the quota reserved for Ex-servicemen for backward classes remained unfilled due to non- availability of suitable Ex-servicemen or their dependents in direct recruitment, the unfilled vacancy of Ex-servicemen or from the backward classes is to be filled in from freedom fighters/their children/grand children. Since the petitioner is neither son or a daughter of a BC freedom fighter and is a dependent of freedom fighter general category, the post reserved for ESM-BCA and ESM- BCB cannot be offered to him and he is not entitled for the same. Thus, the short question, which would arise in this case to decide is if the post which was reserved for BC-A or BC-B remaining unfilled can be offered to a dependent of freedom fighter, who belongs to general category. The counsel for the petitioner in this regard has placed very heavy reliance on the instructions dated 26.11.1985 annexed with the petition as part of Annexure P-2. It is clearly provided that 2% posts would be available for the freedom fighters and their children and grandchildren only if the quota reserved for Ex-servicemen remains unfilled due to non-availability of suitable Ex-servicemen or their dependents. These instructions further provide that the Government has decided to extend the Civil Writ Petition No.10960 of 2011 : 4 : reservation in services in direct recruitment in Class 1, II, III and IV to the extent of 2% for the freedom fighters and their children/grand children subject to the condition that this 2% reservation will be available only if quota reserved for Ex-servicemen or Backward Classes remains unfilled to the extent due to non-availability of suitable Ex-servicemen or their dependents or non-availability of suitable candidate from the Backward Classes. The instructions further provide that overall reservation either from the unfilled vacancies of Ex-servicemen or from Backward Classes of freedom fighters/their children/grand-children will remain limited to 2% only. From these instructions, the counsel for the petitioner contends that any post reserved for Ex-servicemen remaining unfilled has to be offered to a dependent of freedom fighter, be it of a general category or reserved category of BC. Mr.Nehra, however, says that these instructions cannot be read in the manner as is being urged as the wording of the instructions is unambiguously clear wherein it is provided that a quota reserved for Ex-servicemen or backward classes due to non availability of Ex-servicemen or their dependents “or non-availability of candidates from backward class” would stand extended to the dependents of freedom fighters. The use of word “or” in the instructions separating Ex-servicemen or their dependents or non- availability of Backward Classes candidates would give an indication that unfilled vacancy of Ex-servicemen general will go to dependents of freedom fighters general, if it remains unfilled. On the other hand, if the vacancy meant for BC remains unfilled, it would go to freedom fighter with the same category and cannot be offered to a general Civil Writ Petition No.10960 of 2011 : 5 : candidate, who may be dependent of freedom fighter. If the vacancies reserved for BC are allowed to filled by general category candidates, the overall reservation meant for BC would suffer imbalance and would result in reducing the vacancies which is a social reservation envisaged by the constitutional provisions. Mr.Nehra has also referred to the ratio of law in Anil Kumar Gupta Vs. State of Uttar Pradesh JT 1995 (5) SC 505. The Hon'ble Supreme Court in this case has laid down guidelines as to how horizontal or vertical reservation would operate. As is observed in this case, where the seats reserved for horizontal reservation are proportionately divided among the vertical (social reservation) and are not intertransferable, it would be a case of compartmentalized reservation. Giving illustration in this regard, the Hon'ble Supreme Court has observed as under:- “We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen per cent) should be filled by special 27% which means 201 seats for O.B.Cs; if the 112 special reservation seats are also divided category; in other words, thirty special category students can be accommodated in the O.B.C. Category; but say only then special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. Category (they will be available for O.B.C. Candidates only) or for that matter, to any other category; this would be so whether requisite number of Civil Writ Petition No.10960 of 2011 : 6 : special reservation candidates (56 out of 373) are available in O.C.category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C., O.B.C., S.C. and S.T.” Ultimately, the Hon'ble Supreme Court has also observed that inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered. The relevant observations in this regard are as under:- “As against this, what happens in the overall reservation is that while allocating the special reservation students to their respective social reservation category, the overall reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered.” Even in Indra Sawhney Vs. Union of India [1992 Supp. (3) Civil Writ Petition No.10960 of 2011 : 7 : SCC 217], it was observed 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 reservation' and `horizontal reservation'. 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 category; 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”. It can, thus, be said that the horizontal reservation if divided among vertical reservation, then these are not intertransferable. They would have to be compartmentalized reservation. In view of the above, the submissions made by the Civil Writ Petition No.10960 of 2011 : 8 : counsel for the petitioner cannot be accepted. The posts reserved for BC-A and BC-B would not be intertransferable to the general category as otherwise it would lead to altering the quota fixed for all categories like OC, BC etc. There is, thus, no merit in the writ petition. The same is accordingly dismissed. September 16, 2011 ( RANJIT SINGH ) ramesh JUDGE