Judgment:
Kurian Joseph, J.
1. Social reservation and special reservation are two different concepts in the matter of public employment. Both concepts are permitted under the Constitution of India. Article 16 deals with such reservations. The Article reads as follows:
16. Equality of opportunity in matters of public employment.-- (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or that authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment.
(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which, in the opinion of the States, is not adequately represented in the services under the State.
(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in a succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.
(5) Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
While Article 16(1) deals with special reservation, if required to avoid inequality, Article 16(4) deals with social reservation in tune with Articles 38 and 39 of Part IV of the Constitution of India. Social reservation is intended to provide for the inadequately represented backward classes. With their social backwardness, State feels that they are not in a position to compete with forward classes. Therefore, communal reservation has been introduced. The question is whether the principle of communal reservation is to be followed while making special reservation. Special reservation is intended to achieve a special objective to provide for the disabled, the ex-servicemen, women, etc. If such special categories are to be provided in public service and in case therein also communal reservation is followed, it would defeat the very purpose of special reservation. That is not intended by the framers of the Constitution. The intention is otherwise. As held by the Supreme Court in Mahesh Gupta v. Yashwant Kumar Ahirwar : AIR 2007 SC 3136 reservation under Article 16(1) - special reservation - is horizontal reservation; whereas reservation under Article 16(4) - social reservation - is vertical. In special reservation, there is no need or relevance for communal reservation. They are a class in themselves. It has also been held by the Supreme Court that while providing for special reservation even the limit of 50% reservation as made mandatory by the Supreme Court in Indira Sawhney v. Union of India : AIR 1993 SC 477 does not apply. Once the above principle is clear, it is easy to analyse the facts of the present case.
2. The Writ Appeal is filed against the overlooking of priority for appointment to the post of Livestock Inspector Grade-II under the quota reserved for Ex-servicemen or dependents of Ex-servicemen. The question is whether communal rotation should be followed for advising and offering appointment against 10% vacancies out of the 85% vacancies reserved for direct recruitment, set apart for Ex-servicemen under the Animal Husbandry Subordinate Service Rules. As per Note 1 of category VI(2) of Rule 3 of the Rules as it originally stood the order of priority of defence service personnel and their dependents was as follows:
(i) Ex-service Personnel
(ii) Wives & Children of Ex-Service Personnel
(iii) Wives and Children of Serving Personnel
(iv) Dependent brothers and sisters of Ex-service Personnel and Serving personnel.
The said rule was subsequently amended and two more sub-categories were included in that category. Ext.P4 reflects the said amendment and also the subsequent reassignment of the order of priority, in the following manner:
(i) Ex-Service Personnel
(ii) Wives & Children of jawans in action/missing
(iii) Wives & Children of Ex-Service/Deceased Ex-service personnel
(iv) Wives & Children of Serving personnel
(v) Dependent brothers & sisters of jawans killed in action
(vi) Dependent brothers & sisters of Ex-service and service personnel.
3. It is not in dispute that in the matter of appointment of Live Stock Inspector Grade-II towards the Defence Service Personnel quota from the ranked list that came into force on 31.12.2002 Public Service Commission has followed communal rotation. The legal retainer of the Commission submits that out of the 153 vacancies reported 15 vacancies were allotted to the Defence Service Personnel quota. But according to statement filed on behalf of second respondent a total number of 154 vacancies were reported. According to them 15 appointments were made from the said list against the said 15 vacancies allotted to the defence service personnel quota under the 10% quota. Later, 3 NJD vacancies were occurred in the said category and they were also reported during the life period of the said ranked list. Pursuant to the same candidates were advised and appointed from the list. Altogether 18 appointments were made as against the defence service personnel quota, of course, against the 15 reported vacancies. Admittedly the rules of communal rotation was strictly followed by the Public Service Commission in the process. That precisely is the grievance of the appellant. According to him being a special reservation in favour of defence service personnel the rules of communal rotation should not have been followed by Public Service Commission. It is submitted that the said wrong procedure had adversely affected him inasmuch as adherence to correct procedure would have definitely secured him appointment against one of the vacancies.
4. There can be no doubt that reservation of 10% vacancies, out of the 85% direct recruitment quota for appointment to the post of Live Stock Inspectors Grade-II under the Animal Husbandry Service Rules has been made as a special reservation in favour of the defence service personnel and their dependents. Communal reservation is to be followed mandatorily in the case of social reservation in favour of SC/ST and OBC under Article 16(4) of the Constitution of India. As noticed herein before the reservation in this case in favour of defence service personnel and their dependents is a special reservation and therefore the very purpose and object of such special reservation is to ensure appointment of deserving candidates under that quota and that would be defeated if communal rotation is followed as in the case of social reservation. Therefore, the proper procedure is to fill up the quota in the order of merit viz., in terms of the ranking in the concerned list. In Mahesh Gupta's case the Apex Court has succinctly dealt with this aspect. It is held as follows:
The State in terms of Article 16 of the Constitution may make two types of reservations -vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefor. The State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object and purport sought to be achieved by reason of Clause (4) thereof. Disability has drawn the attention of the worldwide community. India is a signatory to various International Treaties and Conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class.
The difference in this case is that the special reservation herein is for defence service personnel. Therefore, we are inclined to accept the contention of the appellant that the appellant has been prejudiced on account of the application of communal rotation by the Commission in the matter of effecting advice as against the vacancies under the defence service personnel quota.
5. The counsel for the Commission contended that the ranked list in question had expired as early on 30.12.2005. But it is to be noted that in this case the petitioner was put to hardship and prejudice on account of the wrong application of communal rotation in the matter of offering appointments against the said quota by the Commission. The appellant is not seeking the relief of reporting further vacancy from an expired list. In view of our finding regarding the application of communal rotation the claim of the appellant calls for consideration. If the Commission had not followed the communal rotation while making advice against the vacancies reserved under the quota the appellant would have definitely obtained a berth in service, it is contended by the counsel for the appellant. A wrong action on the part of the Commission cannot work out as prejudicial to the prospects of the appellant. According to us this is a fit case for the Government to bestow serious consideration by invoking the power under Rule 39 of Part-II of K.S. and S.S.R. In the above circumstances interest of justice and equity requires consideration of the case and claim of the appellant by the Government under Rule 39 of Part-II of K.S. and S.S.R.
6. Therefore, there will be a direction to the first respondent to consider the case of the appellant for appointment to the post of Livestock Grade-II under the Animal Husbandry Department against the defence service personnel quota based on the rank held by him in the PSC List that came into force on 31.12.2002 under the Rule 39 of Part-II of K.S. and S.S.R. To enable such a consideration by the Government the appellant shall file a proper representation, along with a copy of this judgment, before the Government within one month from today. The first respondent shall consider the same and pass appropriate orders as directed above within another two months.
The Writ Appeal is disposed of as above.