Shiv Prasad vs Government Of India & Ors

2. Both these appeals have been instituted by the appellants being aggrieved and dissatisfied with the judgment and order passed by the High Court of Uttranchal (now Uttrakahand) on September 18, 2003 in Writ Petition No. 802 (S/B) of 2001.

3. Shortly stated the facts of the case are that on August 10, 2000, Roorkee University issued an advertisement for filling up various vacancies in different faculties. The controversy in present appeals relates to the vacancy position in the Department of Mathematics. As observed in the impugned judgment of the High Court, there were six posts of Professors (unreserved) and three posts of Associate/Assistant Professors. Out of three posts, two were reserved for Scheduled Caste candidates while one was for General Category: Unreserved (UR). They were to be filled under Flexible Cadre Structure (FCS) in accordance with reserve roaster notified by the Government of Uttar Pradesh under whose control the University was functioning at the relevant time. Appellants in both the appeals applied in March, 2001. Interviews were conducted on March 20, 2001. Selection Committee met on the next day, i.e. March 21, 2001. It is the case of the writ petitioner that he was selected for the post of Associate Professor. According to him, respondent No. 4 (Dr. Madhu Jain) was not found eligible and was neither selected nor recommended. The writ petitioner, however, did not receive an appointment letter for quite some time. On the contrary, he came to know that respondent No. 4 was intimated by the University that she was selected and being appointed as Assistant Professor in the Department of Mathematics. The writ petitioner made representations. Since there was no favourable reply, he was constrained to approach the High Court by filing a writ petition. The Division Bench of the High Court by the order impugned in the present appeals, allowed his petition, set aside the appointment of respondent No. 4 but directed the University to re-advertise the post and to conduct the selection process afresh. Consequence of the order passed by the High Court was that the writ petitioner succeeded and selection and appointment of respondent No. 4 to the post of Assistant Professor in Mathematics had been set aside, but no effective relief had been granted in favour of writ petitioner. The grievance of the writ petitioner in the present appeal is that though he was eligible, qualified, found fit and recommended for appointment to the post of Associate Professor, he was not appointed. The High Court, no doubt, allowed his writ petition but it was wrong in directing re- advertisement of the post and to conduct selection process afresh. The complaint of respondent No. 4-appellant in the cognate appeal, on the other hand, is that on the facts and in the circumstances of the case, she was rightly selected, recommended and appointed as Assistant Professor in Mathematics and the High Court was not justified in setting aside her appointment. The action of the University in appointing her was legal and valid and ought not to have been disturbed by the High Court.

4. On January 6, 2004, notice was issued by this Court in Special Leave Petition instituted by the writ petitioner. The parties were directed to exchange affidavits. Meanwhile, respondent No. 4 also instituted Special Leave Petition on January 29, 2004. In that matter also notice was issued. Both the matters were then ordered to be placed for final hearing on a non-miscellaneous day and that is how the matters have been placed before us.

7. The learned counsel for respondent No. 4 who has also approached this Court against the order setting aside her appointment, contended that the High Court has committed an error of law in allowing the petition filed by the writ petitioner and in quashing her appointment. It was submitted that admittedly, the cadre of Associate Professor and Assistant Professor is combined and even the advertisement was issued showing both the cadres as 'combined' one. One post was reserved in women category. According to the policy of the U.P. Government, there should be 20% reservation for 'women candidates'. The said policy had been accepted and implemented by the University. Since there were three posts in the 'Combined Cadre', one was reserved for a woman candidate. Respondent No. 4 was a woman candidate so far as Assistant Professor (Mathematics) was concerned. In view of the said fact, the University was fully justified in selecting her, recommending her name for Assistant Professor and in giving appointment. The writ petitioner could not have made grievance against her appointment and the High Court was not right in setting aside the appointment of respondent No. 4. She had, therefore, prayed that the writ petition filed by the writ petitioner may be dismissed and her appointment may be restored by modifying the direction of the High Court to re-advertise the post and to undertake selection process afresh. It was also urged that the writ petitioner had made prayer only to quash appointment of respondent No. 4 in the writ petition and no relief was sought seeking his appointment to the post of Associate Professor. Therefore, even otherwise, he cannot be ordered to be appointed as Associate Professor and his appeal is liable to be dismissed.

23. His Lordship proceeded to state; 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 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. (emphasis supplied)

(emphasis supplied)

33. For completion of record, it may be stated that in 2005, writ-petitioner (Dr. Shiv Prasad) was selected and has joined as Associate Professor from February 14, 2006 (A.N.).

34. For the foregoing reasons, in our view, the appeal filed by Dr. Shiv Prasad (Petitioner of Writ Petition No. 802 (S/B) of 2001) deserves to be dismissed and is hereby dismissed. The appeal filed by Dr. (Mrs.) Madhu Jain (respondent No. 4 in Writ Petition No. 802 (S/B) of 2001) deserved to be allowed and is accordingly allowed. Her selection, recommendation and appointment as Assistant Professor is held legal, valid and in accordance with law and could not have been set aside by the High Court. The order of the High Court to that extent is set aside upholding the action of the University. On the facts and in the circumstances of the case, however, all the parties are directed to bear their own costs.