Public Service ... vs Mamta Bisht And Ors

2. Facts and circumstances giving rise to these appeals are that Public Service Commission, Uttaranchal (hereinafter referred to as the `Commission') issued an advertisement dated 7.6.2002 inviting applications for 35 posts of Civil Judge, (Junior Division) with a stipulation that the number of vacancies may be increased or decreased. It clarified that the reservation policy adopted by the State i.e. reservation in favour of SC/ST/OBC and horizontal reservation in favour of handicapped, and women etc. belonging to Uttaranchal would be applicable. Respondent No.1 applied in pursuance of the said advertisement seeking benefit of reservation in favour of Uttaranchal women. She qualified in the written examination and thus faced the interview held by the Commission. The final result of the selection was declared on 31.7.2003 and it was evident from the result that respondent No.1 was not 2 selected. Instead of filling of 35 vacancies, recommendations to fill up 42 vacancies were made as the decision had been taken in this regard prior to declaration of result. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates. Some women candidates stood selected in general category while others had been given the benefit of horizontal reservation being resident of Uttaranchal. Respondent No.1, being aggrieved preferred Writ Petition No.780 of 2003 (M/B) in the High Court of Uttaranchal seeking quashment of select list dated 31.7.2003 mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in general category and had it been done so, respondent No.1 could have been selected in reserved category being a woman of Uttaranchal. It had also been pleaded in the petition that some of the women candidates who not only claimed the benefit of horizontal reservation but have been selected giving the said benefit, did not submit their respective certificate of domicile at the time of filling up the application forms but they produced the said certificate at a later stage and it was accepted. The High Court 3 accepted the first submission of respondent No.1 after examining the record of selection and came to the conclusion that last selected woman candidate who was given benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in general category. Thus, the said candidate ought to have been appointed against the general category vacancy and respondent No.1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women. Hence, these appeals.

3. Shri S.S. Shamshery, Advocate appearing for the Commission and Shri Ashok Mahajan, Advocate appearing for the High Court have submitted that all the vacancies advertised had already been filled up before the writ petition could be filed. Not a single successful candidate had been impleaded as a respondent before the High Court. Thus, the petition ought to have been dismissed for not impleading the necessary parties. The High Court did not consider the issue of acceptance of domicile certificates by the Uttaranchal 4 women at a belated stage nor any finding has been recorded on the said issue. The High Court failed to consider the principle that if a reserved category candidate secures more marks than the last selected candidate in general category, then he is to be appointed against the general category vacancy, does not apply while giving the benefit of horizontal reservation. The writ petition filed by the respondent did not have any factual foundation or proper pleadings and thus was not worth entertaining. It is well neigh impossible to implement the judgment of the High Court at this belated stage, for the reasons that all the vacancies advertised stood filled up in 2003. Subsequent to the selection involved herein appointments have been made several times. Judicial Officers appointed from the said selection have been promoted as Civil Judge (Senior Division). Respondent No.1 cannot be given seniority over and above the officers appointed in subsequent selections. Thus, appeals deserve to be allowed.

However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly.

14. In view of the above, it is evident that the judgment and order of the High Court is not in consonance with law laid down by this Court in Rajesh Kumar Daria (supra). The judgment and order impugned herein is liable to be set aside and all consequential orders become unenforceable and inconsequential.

Thus, appeals succeed and are allowed. Judgment and order of the High Court dated 26.10.2005 passed in Writ 1 Petition no.780/2003 (M/B) is hereby set aside. No costs.