• Selection process in govt jobs

Selection process on horizontal reservations basis. Deptt is not considering Supreme Court rulings on horizontal reservation policy.

Please advice
Asked 10 months ago in Civil Law from Delhi, Delhi
 In Indra Sawhney vs. Union of India [1992 Supp.(3) SCC 217], the principle of horizontal reservation was explained thus (Pr.812) :
"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 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 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."

2) The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta vs. State of U.P. [1995 (5) SCC 173] thus : 
"The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) 

3) in the vent you are aggrieved by policy of dept in not considering the Sc judgment file writ petition in HC to challenge the selection process 
Ajay Sethi
Advocate, Mumbai
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Hello,
1) As the department has contravened the Supremee Court Ruling in CIVIL APPEAL NO.9096 OF 2013 which has once again clearly laid down horizontality of reservation for the disabled and the ex service men you need to approach the High Court and file a Writ Petition seeking correction of the appointment and appoint you in the vacancy you so deserved.

2) Engage a lawyer locally to assist you.
S J Mathew
Advocate, Mumbai
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Selection process on horizontal reservations basis. Deptt is not considering Supreme Court rulings on horizontal reservation policy.


In Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & Ors. AIR 2007 SC 3127, the Supreme Court explained the law in the following terms;
5. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney vs. Union of India [1992 Supp.(3) SCC 217], the principle of horizontal reservation was explained thus (Pr.812) :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 interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation related to clause (1) of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments; 
A special provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta vs. State of U.P. [1995 (5) SCC 173] thus : 
"The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) 
You have not stated that which department in government  has denied the horizontal reservation policy and what was the impact on you and what is that you would like to clarify or opinion about this. 
The provisions of law is very clear in this and also the supreme court rulings are very clearly favoring the situations, hence the affected persons may make a representation accordingly to redress their grievances.
T Kalaiselvan
Advocate, Vellore
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There were 17 vacancies (10-UR, 02 SC, 01 ST, 04 OBC) including reserved post for 01 PWD & 01 Ex-SM. I had secured  second position as per Cut-off marks decided by Deptt under OBC category and was single candidate under Ex-Servicemen Category. Deptt has not selected me and filled 07 UR, 02 SC, 02 OBC posts. Please advice

In a writ petition before Allahabad high court in the following case the gist of the judgment is given at  the end which suits to your case:
HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. - 26 

Case :- WRIT - A No. - 33433 of 2006 

Petitioner :- Rajeev Kumar And Others 
Respondent :- State Of U.P. And Others 
Petitioner Counsel :- Shailendra 
Respondent Counsel :- C.S.C.,C.B.Yadav 

This has been reiterated in para 83 of the judgment in Jitendra Kumar Singh and another vs. State of U.P. and others, (2010) 3 SCC, 119. 
"83. We have also considered the submissions made by the learned counsel. It is accepted by all the learned counsel for the parties that these vacancies had to be filled by applying the principle of horizontal reservation. This was also accepted by the learned Single Judge as well as by the Division Bench. This is in consonance with the law laid down by this Court in Indra Sawhney case (SCC pp. 735, para 812)." 

The manner of applying horizontal reservation is that the vacancies reserved in this categories have to be filled in separately by the candidates belong to this category. However, the candidates shall always belong to any of the three categories namely general, SC, ST or OBC. After selection of candidates against vacancies attracting horizontal reservation, they shall be placed in their respective vertical category like, General, OBC, SC, ST. Thereafter against remaining vacancies of vertical reservation, the matter shall follow. The mere fact that one is one of the four categories mentioned in 1993 Act, it would not mean that he has to compete with candidates who belong to one of these later categories i.e. vertical categories. For example, a SC candidate would compete against the vacancies reserved for scheduled Caste as also unreserved vacancy but for him the vacancies reserved for persons i.e. dependents of Freedom Fighters and EX-servicemen are not open for competition. However, a Scheduled Caste candidate who also happens to be Physically Handicapped or Dependents of Freedom Fighter or an Ex-servicemen, besides the fact that he would be eligible and entitled to be considered against vacancies reserved for SC and other vacancies, would also compete against vacancies reserved for Physically Handicapped person, Ex-servicemen or the Dependent of Freedom Fighter as the case may be. 
In reservation under 1993 Act, all Physically Handicapped etc. if belong to vertical reserved category like SC, ST and OBC, they would take away vacancies to the extent they are selected. If above three categories of persons under 1993 Act are required to compete with other candidates like general, OBC, standing counsel and ST, it would nullify the very reservation made under 1993 Act. 
This Court is of the view that the respondents ought to have been more careful in understanding this concept and must have gone through the judgements given by Apex Court in this regard in Indra Sahni (supra) and the recent one Jitendra Kumar Singh (Supra). 
Non-selection of petitioners against vacancies meant for Ex-servicemen on the ground that they have secured less marks than the last selected candidate belong to General or OBC or SC is wholly illegal. The general candidate or OBC or SC, who are not Ex-servicemen, cannot compete with petitioners in respect of vacancies meant for the petitioners. The Ex-servicemen quota has to be filled in separately by taking it as a separate unit. When the aforesaid quota is filled in, the candidates thereafter will be adjusted in the respective category like General, SC, ST or OBC as the case may be Then only the remaining vacancies in the latter category shall be filled in. 
In the result, the writ petition is allowed. The Respondents are directed to reconsider claim of petitioners against vacancies meant for EX-servicemen at Fatehpur Recruitment Centre in accordance with law & in the light of observations made herein above. In case they otherwise qualify, the respondents shall take consequential step for their appointment. If in doing so, any of the respondents 6 to 13 are to be uprooted, obviously, appropriate orders shall be passed after giving due opportunity to him/them. However, it is further provided that in case there are sufficient number of vacancies available, the respondents may consider to accommodate such respondents 6 to 13, instead of dispensing his/their services considering the fact that he/ they have rendered more than four years of services by now and have acquired sufficient experience in training etc. 
The writ petition is allowed in the manner as above. It is also made clear that in case petitioners are ultimately found successful, appointment in service shall take effect from the date the respondents no. 6 and 13 were appointed with all consequential benefits except arrears of salary which shall be paid from the date of appointment . This exercise shall be completed within two months from the date of communication of a certified copy to the concerned authority. 

You may file a writ before high court on the basis of above settled law seeking explanations and employment.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1) legal fees vary .we cannot give an estimate . it would also depend upon number of hearings in your case 

 2) you can contact any lawyer from kaanoon.com practising in delhi 
Ajay Sethi
Advocate, Mumbai
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1212 Consultations
5.0 on 5.0
Response is good. Please give cost to file the writ in High Court of Delhi.

The cost of filing a writ petition before high court shall depend on the advocate whom you are desiring to engage. The fee of an advocate cannot be predicted.  The preparation cost may not exceed Rs. 1000/- but the advocate's fee may range from Rs. 25,000/- to anything which you may or may not afford.
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
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The remedy is to move the High Court through a writ against the dept. The HC will take the dept to task for not complying with the law laid down by the SC and pass the appropriate order. 
Ashish Davessar
Advocate, Jaipur
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The fee structure of lawyers is not uniform, so must ask this question specifically from the lawyer whom you wish to engage.
Ashish Davessar
Advocate, Jaipur
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