Sheo Shankar Singh v. Public Service Commission, U.P, Allahabad

R.A Sharma, J.:— Public Service Commission, U.P Allahabad (hereinafter referred to as the Commission) issued an advertisement notifying 375 vacancies (likely to increase or decrease) for the Combined State/Upper Subordinate Services. One percent of the posts advertised were reserved for Ex-servicemen. Petitioner, being an Ex. Serviceman, made an application pursuant to the said advertisement against the reserved quota of the Ex-servicemen. Petitioner appeared in the preliminary examination but was not declared successful. Being aggrieved, he has filed this writ petition for writ of mandamus, directing the Commission to admit him to the Combined State Upper Subordinate Services (Main) Examination, 1994, commencing from 29.6.1996 Consequential and incidental prayers in connection therewith have also been made. Petitioner has moved an application for amendment of the writ petition, which has been allowed by us.

2. The Commission has filed counter affidavit and has also produced the original relevant record before the Court.

3. We have heard the learned counsel for the parties.

4. The U.P Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex. Service Men) Act, 1993 (U.P Act No. 4 of 1993) (hereinafter referred to as the 1993 Act) provides for reservation of five percent vacancies in the Public Services and the post in connection with the affairs of the State at the stage of direct recruitment in favour of physically handicapped, dependents of freedom fighters and Ex. Servicemen. Section 3 of the said Act, being relevant is reproduced below:

“3. Reservation of vacancies in favour of physically handicapped etc.—(1) In public services and posts in connection with the affairs of the State there shall be reserved five percent of vacancies at the stage of direct recruitment in favour of

(i) physically handicapped;

(ii) dependents of freedom fighters; and

(iii) ex-servicemen.

(2) The respective quota of the categories specified in sub-section (1) shall be such as the State Government may from time to time determine by a notified order.

(3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Caste category, he will be placed in that quota by making necessary adjustments, if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustment. Similarly if he belongs to open competition category, he will be placed in category by making necessary adjustments.

(4) For the purposes of sub-section (1) a year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be;

Provided that at no point of time the reservation shall, in the entire strength of cadre of service, as the case may be, exceed the quota determined for respective categories.

(5) The vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment.”

5. Section 2, which is a definition clause, defines the “Ex-servicemen” as under:

“2(x) “Ex-servicemen” means a person who has served in any rank, as a combatant or non-combatant, in the Indian Army, Navy or Air Force, and—

(i) has retired from such service after earning his pension, or

(ii) has been released from such service on medical grounds, in accordance with the requirements of such service, or because of circumstances beyond his control and has been granted medical or disability pension, or

(iii) has been released otherwise than on his own request, as a consequence of reduction in the establishment of such service, or

(iv) has been released from such service after fixed specified period, but has not been released on his own request or has not been dismissed or discharged on account of misconduct, inefficiency and has been granted gratuity and includes the following categories of territorial Army personnel, who—

(i) get pension for continuous embodied service,

(ii) have become medically unfit owing to military service, and

(iii) are winners of gallantry award.”

6. Under 1993 Act, three out of the advertised vacancies have been reserved for the Ex-servicemen. These three vacancies have further been reserved/divided by the respondent as under:

One vacancy for general Ex-servicemen,

One vacancy for Scheduled Caste Ex-servicemen, and

One vacancy for Backward Class Ex-servicemen.

7. All Ex-servicemen of general category were considered against one of the three vacancies only. Against the remaining two vacancies Ex-servicemen, belonging to Scheduled Castes and Backward Classes were considered. The last amongst the successful general Ex-servicemen obtained 298 marks. As the petitioner secured only 285 marks in preliminary examination, he was not declared successful and was thus not eligible to appear in the main examination. The last successful Scheduled Caste Ex-servicemen obtained 184 marks, whereas the last successful Backward Class ex-servicemen secured 219 marks.

8. One of the grievances raised by the petitioner is that Ex-servicemen form one class and it is not open to the respondent to divide the vacancies reserved for them on the basis of castes. Learned counsel for the Commission has disputed the above contention.

9. Reservation in favour of physically handicapped, dependents of freedom fighters and Ex-servicemen provided by 1993 Act is different from the reservation provided for by the U.P Public Service (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U.P Act No. 4 of 1994) (hereinafter referred to as the 1994 Act) under which reservation has been made in favour of the Scheduled Castes, Scheduled Tribes and other Backward Classes. While reservation under 1993 Act, not being based on the backwardness of any class of citizens, falls under clause (1) of Article 16 of the Constitution, reservation under the 1994 Act is covered by clause (4) of the said Article. In Indra Sawhney v. Union of India . 1992 Supp 3 SCC 217, Supreme Court has held the reservations in favour of the Scheduled Castes, Scheduled Tribes and other Backward Classes (under Article 16(4)) as vertical reservation, and the reservations in favour of physically handicapped (under Article 16(1) of the Constitution) as horizontal reservation. It was further held that persons selected against the quota of physically handicapped are to be placed in the appropriate category to which they belong. Relevant extract from paragraph 95 of the aforesaid decision is reproduced below:

“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 inter-locking 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 person selected against this quota will be placed in the appropriate category, if he belongs to S.C category he will be placed in that quota by making necessary adjustments, similarly, if he belongs to open competition (O.C) category, he will be placed in that category by making necessary adjustments. Even after provision for these horizontal reservations, the percentage of reservations in favour of backward class of citizen remains and should remain the same.”

10. As the reservation in favour of ex-servicemen falls under Article 16(1), Article 16(4) of the Constitution is not applicable to it. Considerations and the basis of reservation under Article 16(1) being different from what is contained in Article 16(4), posts reserved for Ex-servicemen cannot be distributed/divided or allocated on the basis of the castes of the Ex-servicemen. Dividing vacancies reserved for Ex-servicemen and allocating them to Scheduled Castes, Scheduled Tribes, Backward Classes and general candidates is therefore, without jurisdiction. All Ex-servicemen, who applied against their reserved quota have to be treated as persons belonging to the one and the same class and all of them are to be considered against all the vacancies reserved for them strictly on the basis of the merit irrespective of the caste/class to which they belong. Claim of the petitioner is, therefore, liable to be considered on merit against all three vacancies reserved for Ex-servicemen. That being the position, the result of the preliminary test of the petitioner has to be amended.

11. This writ petition is allowed with costs. The order dividing the vacancies reserved for Ex-servicemen on the basis of the caste/class is quashed. Petitioner's claim along with the claim of other candidates, who had applied against the vacancies reserved for Ex-servicemen, will be considered against all three reserved vacancies on merit in accordance with law and if the petitioner is found to have secured adequate marks in the competitive preliminary test, he will be treated to have passed the said test and will be eligible to appear in the main examination. If he also succeeds in the main examination, he will be called for personality test, if so required and will be dealt with in accordance with law.

12. Petition Allowed.