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.