Sunil Kumar Vs. State of Himachal Pradesh and ors. - Court Judgment

Excerpt:
- deepak gupta, j.1. reply on behalf of respondents no. 1 and 2 has already been filed. respondent no. 3 has filed reply in the court. keeping in view the nature of the dispute, we feel that it would be appropriate to decide the matter at the admission stage itself without issuing notice to the private respondents since we do not propose to pass any order which will affect the rights of the private respondents.2. briefly stated the case of the petitioner is that he applied for admission to the jbt course as a scheduled caste candidate. the petitioner alleges that respondents no. 4 and 5, who also belong to the scheduled castes, have obtained only 61 marks in the admission test and they have been granted admission, whereas he has been denied admission though he has scored 62 marks in the test and is placed higher in the merit than the said respondents.3. reply of the state is simple. according to the state, it makes the admissions strictly in accordance with the merit list sent by respondent no. 3 and it has nothing further to add. respondent no. 3, in its reply, has taken up a plea that the petitioner had not applied only as a scheduled caste candidate but as a scheduled caste candidate belonging to an integrated rural development programme/antodaya family. according to mr. g.d. sharma, learned counsel for respondent no. 3, as per the instructions issued by the director of education, the admissions are made as per the roster prescribed and the merit list has been drawn up strictly in accordance with the roster attached with the letter of the director, dated 16th june, 2008. before us, it is not disputed by the petitioner that he had in fact applied as a scheduled caste candidate belonging to irdp family.4. the short but interesting question which arises is whether a candidate belonging to a reserved category, like the scheduled caste category, which category has further sub reservation (horizontal reservation) for different categories, can be denied admission because he is lower in merit in the sub category he falls in, even though he is higher in the merit than the other candidates in the main reserved categories itself. the answer in our considered opinion has to be resounding no.5. in this case, the letter of the director education relied upon by the respondents shows that the jbt cadre is a district cadre and district-wise 200 point reservation roster has been formulated. annexure to this letter provides that there will be vertical reservation whereby 22% seats will be reserved for scheduled caste candidates, 5% for scheduled tribe candidates and 18% for other backward classes. the same annexure further provides that amongst each category, there will be a further horizontal reservation and out of the seats so reserved, 15% seats shall go to ex servicemen, 2% to the children/grand children of freedom fighters, 3% for physically handicapped, 15% seats for antodaya/irdp and 3% to distinguished sports persons.6. it is not disputed before us that the families falling under the antodaya scheme or irdp scheme are the poorest of the poor. it is probably because of this reason that this further sub category has been carved out by way of horizontal reservation. when such policies are framed, it is normally expected that the candidates belonging to such poor backward and under-developed class would not succeed on merit and therefore, a separate category is carved out for them. however, as has happened in this case, the candidates belonging to the further sub category i.e. scheduled caste irdp family obtained higher marks in merit. in the irdp sub category, the petitioner who had obtained 62 marks in the entrance test could not get admission as per the roster. the petitioner has been denied admission on the ground that since he applied under the category of scheduled caste irdp and the seats provided for this sub category, as per the roster, have been filled up, he cannot be granted admission against the larger reserved category of 'scheduled caste'. we fail to appreciate this submission. a candidate does not cease to fall amongst the larger category of scheduled caste only because he has applied for admission in the irdp sub category also. he will remain a scheduled caste candidate. if all the candidates in a sub category have done well in merit, it does not mean that he should be denied admission even though he has scored higher marks than other candidate from the main category i.e. scheduled caste category. if the view given by the respondent no. 3 is accepted, it will lead to a total chaos as merit amongst scheduled caste candidates would be totally ignored and the meritorious would be denied admission. furthermore, the poorest of the poor for whom this extra benefit was meant would be denied admission to which he would have been entitled in normal course, even if he had applied for admission as an ordinary scheduled caste candidate.7. the apex court in m. nagaraj and ors. v. union of india and ors. : air2007sc71 , after considering the earlier judgments of the supreme court, held as follows:60. in indra sawhney jeewan reddy, j. {ed.: scc para 811} noted that reservation under article 16(4) does not operate on communal ground. therefore, if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. similarly, in r.k. sabharwal the supreme court held that while general category candidates are not entitled to fill the reserved posts, reserved category candidates are entitled to compete for the general category posts. the fact that considerable number of members of backward class have been appointed/promoted against general seats in the state services may be a relevant factor for the state government to review the question of continuing reservation for the said class.8. this principle would apply with even greater force to the present case since here we are concerned with a petitioner who applied as candidate belonging to a sub category created by way of horizontal reservation but he basically belongs to the main reserved category of scheduled caste. there is no reason why the petitioner who is higher in merit than respondents no. 4 and 5 should be denied admission. merely because the petitioner had applied as a scheduled caste candidate belonging to the irdp category is no reason to deny him the benefit of his merit in the main scheduled caste category. the action of the respondents is totally illegal and arbitrary and violative of article 14 of the constitution of india. the writ petition is accordingly allowed.9. we have not issued notices to respondents no. 4 and 5 since they were admitted in college somewhere in november, 2008 and have been pursuing their studies for more than 5 months. at this stage, to set aside their admissions would be very unduly harsh on them.10. we, therefore, while allowing this writ petition, direct the respondent to create an extra seat in the diet, bilaspur for the jbt course and the petitioner be admitted against the said seat. the needful be done within 15 days from today.cmp no. 117 of 2009:11. in view of the final disposal of the main petition, this application also stands disposed as having become infructuous. dasti copy.