Civil Application No.6512 of 2006,Writ Petition No.4471 of 2006

21st March, 2007

Cases Cited:
Indra Sawhney Vs. Union of India, 1992 Supp. (3) SCC 217 [Para 8]
Smt. Rekha Vs. The Maharashtra State Electricity Board, W.P. No.2023/2003, dt.18-8-2003 [Para 8]
Anil Kumar Gupta Vs. State of U.P., (1995)5 SCC 173 [Para 9]

JUDGMENT

N. V. DABHOLKAR, J.:- By this review petition, original writ petitioner in Writ Petition No.4471/2006 seeks review of order of this Court dated 12-7-2006.

2. Writ Petition No.4471/2006 was filed by present review petitioner praying for directions to the respondents to appoint the petitioner as Establishment Superintendent against one of the posts reserved for women in general category, which were lying vacant (even after conclusion of selection process) by issuance of writ of mandamus or any other appropriate writ. The writ petition came before this Court for admission on 12-7-2006 and finding no merits in the writ petition, the same was dismissed in limine by the impugned order.

3. Petitioner is a Graduate in Arts faculty and Post Graduate in Business Administration. She claims to possess experience of having worked as Assistant Manager (HR) in Eklavya Prakashan Private Limited, Aurangabad, for 3 years. She had applied for the post of Establishment Superintendent and Assistant Personnel Officer in response to an advertisement No.1/2005 published by the respondents inviting applications for several posts including 20 posts of Establishment Superintendent. Out of 20 posts of Establishment Superintendent, 11 were reserved for various categories (vertical), whereas 9 posts were available for general category. About 1200 candidates appeared for written examination conducted for the purpose of shortlisting (screening test) on 5-3-2006. Petitioner learnt that about 12 candidates had qualified in the written examination and petitioner was the only female candidate, who had, thus, qualified. She was invited for viva voce on 5-5-2006 and accordingly she appeared for the interview. Merit list of the candidates, who had appeared for written as well as viva was published on Internet on 23-5-2006 and petitioner is shown to have secured 25 marks out of 100. She had claimed to be considered for a post reserved for women, not belonging to creamy layer. Petitioner relies upon policy decision of the Government as promulgated by the Government resolution dated 16-3-1999 issued by the Department of General Administration. Petitioner expressed grievance because one candidate belonging to OBC category having secured 22.6 marks is selected and she is not selected. She has expressed grievance that bench mark (minimum qualifying marks) were fixed by the selection committee in an arbitrary manner and, thus, purpose of 30% reservation for women was frustrated.

4. The points to be argued as carved out and specifically quoted in the synopsis of the writ petition were as follows :

"(I) Since the Recruitment Agency has fixed different minimum qualifying marks for different categories, it was necessary to fix lesser qualifying marks for women, women by itself, being the reserved category.

(II) The very purpose of providing 30% reservation in favour of women is being frustrated since they are treated at per with male candidates in the matter of providing minimum qualifying marks."

In fact, the points for consideration, bifurcated into two, represent one argument, that women is a "reserved category" and, therefore, the bench mark, as it was lowered in the case of reserved categories (vertical), also should have been lowered in case of reserved categories (horizontal) and more particularly for women and, thus, petitioner ought to have been accommodated in one of the seats reserved for women of open category. (If compartmentalized amongst 9 seats of open category, there would have been 3 seats for women and if not compartmentalized, there could have been 6 seats reserved for women out of total 20 seats of Establishment Superintendent advertised.

Advocate Shri. Talekar for the applicant/review petitioner had raised some queries and Advocate Shri. Bajaj for respondents was asked by us to reply those queries. Consequently, on record, apart from reply affidavit filed on 29-9-2006 by one Satish s/o. Narsayya Gadappa, rejoinder filed by petitioner on 10-11-2006 and further short affidavit in reply to the rejoinder filed again by said Satish Gadappa on 1-12-2006, there is one more affidavit filed on 13-3-2007 by the respondents in response to queries raised by petitioner. The affidavit is at pages 33 to 39 and the queries raised by letter dated 22-12-2006 are at Exhibit R-I at paper book pages 40 to 42.

By reference to this letter and the reply, Advocate Shri. Talekar tried to agitate few points, which were tantamount to assailing the entire process of selection and we have disallowed such arguments since such a contention was not the challenge raised in the original writ petition. Hearing the Advocates in the review petition, all of us must confine to the order sought to be reviewed and to the grounds available for review, as contained in Order 47 of the Code of Civil Procedure.

From the last affidavit filed by the respondents in reply to the communication dated 22-12-2006 of petitioner, it is revealed that minimum qualifying bench mark for preparing select list was 40 marks and 30 marks respectively for open category and backward classes (vertical reservations). After taking into consideration the requirement and average performance of the candidates, the bench mark was relaxed by 25% and, thus, recruitment is carried out by treating 30 marks out of 100 to be the bench mark for open category candidates and 22.50 marks for the reserved category candidates. It is also clarified that minimum qualifying marks for women and physically handicapped candidates were not so reduced, but they were to be governed by the bench mark of the category of the caste (either open or reserved) to which they belonged and this was done in the light of guidelines laid down by the Government of Maharashtra in the Department of Women and Child Welfare by Government Resolution dated 25-5-2001.

5. As pointed out hereinabove, after quoting the points for consideration, it can be seen that the contention of petitioner is that when there were no sufficient number of candidates to fill in vacancies reserved for horizontal reservations, qualifying bench mark ought to have been reduced also for horizontal reservations as in the case of vertical reservations. In this context, we may refer and reproduce some part of our order sought to be reviewed.

"To make out a case of discrimination, he has pointed out that an O.B.C. candidate, who secured 22.60 marks out of 100 marks was selected.

She has tried to compare herself with O.B.C. candidate but horizontal reservations cannot be compared with vertical reservations and O.B.C. candidate might have been selected because of bench mark being settled at lower level for available candidates entitled to benefit of vertical reservation to which petitioner is not entitled to, since it is not her case that she belongs to any reserved category.

Advocate Shri. Pathan also argued that in some cases even horizontal reservations are given lesser bench mark. Whether horizontal reservations can be fixed for lesser bench mark can be a subject matter of debate but if such a lesser bench mark was not fixed in this case, petitioner cannot dictate to the proposed employer to fix lesser bench mark, because only one female candidate remained in the fray. Even fact that in some other recruitment some lesser bench mark was fixed for candidates entitled to benefits of horizontal reservation can be no ground to make out a case for securing appointment."

We have reproduced above extract in order to indicate that the argument that there should have been relaxation in the bench mark for horizontal reservations and more particularly for seats reserved for women, was advanced before us, was considered by us and was rejected by us. If this is taken into consideration, merely because we took a view against the proposition of the applicant, the same can not be termed as "error apparent on the face of record" and, therefore, we feel that there is no case for review. If at all, petitioner was aggrieved by the view taken by us, being against the proposition advanced on her behalf, the remedy was approaching the higher forum to challenge the said decision. By review, a view taken by the Court, which is felt by petitioner to be erroneous, can not be asked to be reversed.

6. By the impugned order, we had dismissed the writ petition in limine and what is termed as "observation without factual basis", that petitioner must not have reached the bench mark, was an inference. A candidate, who is not selected, ordinarily can be presumed to have not reached the bench mark fixed. That no relaxed bench mark was fixed for horizontal reservation is now clear by the last reply affidavit filed on behalf of respondents.

7. In order to support his proposition that it was obligatory upon the recruiting agency to fix the relaxed bench mark also for horizontal reservations as in case of vertical reservation, Advocate Shri. Talekar has placed reliance upon conditions as contained in the advertisement and more particularly condition No.8, which reads as under :

"8. The standards for the "reserved category" will be relaxed as per the company's rules, if the required number of candidates are not available in any of the category while shortlisting the candidates for personal interview and preparing the select list."

The words "reserved category", according to Advocate Shri. S. B. Talekar, are required to be read as vertical as well as horizontal reservations.

Advocate Shri. A. S. Bajaj for respondents has opposed such a proposition by relying upon the contents of Government resolution dated 25-5-2001 (Exhibit R-II) and extracts from classification and Recruitment Regulations, 1961, copy of which is produced at paper book page 47. This is a clause regarding lowering or relaxation of minimum qualifications and the same reads as under :

"If it is found that an adequate number of candidates belonging to the Backward Classes (S.C., S.T. and D.T./N.T.) are not available and if the general standard of selection is strictly enforced, the standard of selection should be lowered where it will not be inconsistent with efficiency, in favour of members of that class and candidates who are generally considered suitable and conform to the minimum standard for appointment."

The second paragraph of the said note is also pertaining to relaxation of minimum qualifications, experience at the discretion of the competent authority.

So far as Government resolution dated 25-5-2001 is concerned (the text provided is in vernacular), Clause 5 indicates that reservation of seats for women is a horizontal reservation and a compartmentalized reservation and, therefore, while issuing advertisements, such seats should be specifically indicated. By virtue of Clause 7, it is directed that if at the time of recruitment, sufficient number of women candidates of each category, (Pravarga), open and reserved, are not available (to fill in 30% seats reserved for women), the seats are to be filled in by male candidates of respective categories and the reservation is not to be carried forward as backlog. Clause 13 is placed heavy reliance upon by Advocate Shri. Bajaj and the free translation of the same should read as follows :

"13. The recruitment rules, terms and conditions applicable to backward class reserved categories and open candidates for the purpose of recruitment shall be applicable for recruitment to the seats reserved for women."

According to Shri. Bajaj, this is clear indication that there is specific bar against relaxation of qualifying standard/bench mark for horizontal reservation. We have no hesitation to agree with the submission advanced by Advocate Shri. Bajaj in the light of extract of classification and Recruitment Regulations, 1961, and Clause 13 of the Government resolution.

8. In any case, vertical reservations and horizontal reservations can not be treated at per. As observed by the Hon'ble Apex Court in Indra Sawhney Vs. Union of India (1992 Supp. (3) SCC 217), horizontal reservations could be provided under Clause (1) of Article 16 of the Constitution. Vertical reservations for backward class citizens are provided by Clause (4) of Article 16. Thus, horizontal reservations are aimed at providing equality of opportunity for all citizens in the matters relating to employment of appointment. Whereas vertical reservations are aimed at upliftment of people from backward class (category), which is not adequately represented in the services under the State. We believe that Clause 4 of Article 16 has a stronger sense of mandate. The term "reserved category" used in condition No.8 must be read in the light of difference in the language of Clause (1) and Clause (4) of Article 16 of the Constitution. "Reserved category", therefore, must be said to have been used in connection with what is referred as backward classes in Clause (4) of Article 16 and not in connection with the reservations, which are provided in the light of Clause (1) of Article 16 as equality of opportunity in the employment. Horizontal reservations of 30% seats for women is a reservation aimed at equal opportunity for women in the employment and, therefore, term "reserved category" does not include women, although there are seats reserved for women. We are, therefore, not in agreement with the submission of Advocate Shri. Talekar that by use of words "reserved category" in condition No.8, the respondents were obliged to treat horizontal reservations at par with vertical reservations for the purpose of relaxation of bench mark. We are fortified in taking such a view in the light of observations of another Division Bench of this High Court in an unreported judgment in Writ Petition No.2023/2003 - Smt. Rekha Vs. The Maharashtra State Electricity Board & others, decided on 18-8-2003. In para 8, this Court observed :

"It is well known that the reservation for women is horizontal reservation as has been clarified by the State Government vide its G.R. dated 16th March, 1999, and the contentions that the special concessions are required to be given by way of reducing the benchmark on per with the socially reserved candidates like S.C., S.T., O.B.C. can not be accepted."

In the rejoinder affidavit filed by petitioner on 10-11-2006, it is pleaded that a woman candidate from open category namely Miss. Manjusha Vijay Dusane was selected with 22.60 marks secured by her by giving benefit of reservation for women. The same statement is repeated in the latter part of same para No.5 of the rejoinder, but in the subsequent part of para No.5, candidate Miss. Manjusha Vijay Dusane is correctly referred as OBC candidate. The claim in the rejoinder that Manjusha Vijay Dusane, although an open category candidate, was selected as woman inspite of her having secured 22.60% marks, is factually wrong statement. As can be seen from select list at page 29 of the paper book of original writ petition, Manjusha Dusane is at Sr.No.11 of the select list and she is selected as OBC plus woman reservation. Bench mark for reserved categories was fixed at 22.50 marks and, therefore, it can not be said that an open category candidate was selected as woman by lowering bench mark for her.

9. Reliance was placed upon the judgment of Anil Kumar Gupta Vs. State of U.P. ((1995)5 SCC 173). Having gone through the judgment and more particularly contents in para 18, it is evident that Hon'ble the Apex Court has approved compartmentalized horizontal reservation to be better method than overall horizontal reservations. It has demonstrated as to how compartmentalized horizontal reservations should be operated. However, we have failed to find any observations, which lay down that bench mark for filling in the seats of horizontal reservations can be considered to be lowered than the bench mark fixed for the candidates of the same category (either reserved category or open category) within which the horizontal reservation is to be considered for being filled in.

10. For the reasons discussed hereinabove, we find no substance in the review petition. The same is dismissed.

Petition dismissed.