VASANTH KUMAR G vs DEPARTMENT OF PERSONNEL AND TRAINING
- Court
- Central Administrative Tribunal
1
OA.No.170/00605/2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00605/2024
ORDER RESERVED ON 23.10.2026
DATE OF ORDER: 03.11.2026
CORAM:
HON’BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON’BLE DR. SANJIV KUMAR, MEMBER (A)
Vasanth Kumar G
S/o Govindaiah
Aged about 26 years
Residing at 04, Bhovipalya
Mahadevapura, Mahadevapura Post
Nelamangala Taluk
Bengaluru Rural District 562 123 .... Applicant
(By Shri P.S. Rajagopal, Senior Advocate along with Shri Jayanth
Dev Kumar, Advocate)
Vs.
1. Union of India,
Represented by its Secretary
Department of Personnel & Training
North Block, New Delhi 110 001
2. Union Public Service Commission
Dholpur House,
Shahjahan Road
New Delhi 110 001
By its Secretary
3. Secretary
Department of Revenue
North Block, New Delhi 110 001
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4. Aishwarya Dadarao Ukey
Lal Bahadur Shastri National
Academy of Administration
Mussoorie 248 179
Uttaranchal
(Rank 943, Score 901)
5. Praduman Kumar
Lal Bahadur Shastri National
Academy of Administration
Mussoorie 248 179
Uttaranchal
(Rank 941, Score 901) …Respondents
(By Shri S. Prakash Shetty, Senior Panel Counsel for Respondent
Nos. 1 and 3,
Shri Vishnu Bhat, Senior Panel Counsel for Respondent No. 2,
Respondent Nos. 4 and 5 – ex-parte)
O R D E R
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19
of the Administrative Tribunals Act, 1985 seeking the following
reliefs:
“a) Issue a writ in the nature of certiorari quashing
the allotment of service of Indian Revenue Service
(Income Tax) to the respondents No. 4 and 5 by
allocation order published on 13.09.2024 (under
Annexure A19) by the respondent No. 1, in so far as it
relates to the respondent No. 4 and 5 and grant all
consequential relief:
b) Issue a writ in the nature of mandamus directing
the Respondent No. 1 to appoint the applicant to the
Indian Revenue Service (IT Grade-A) considering the
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merit of the applicant and grant all consequential
benefits.
(c) Issue such other appropriate writ, order or
direction as this Hon’ble Tribunal deems fit to grant in
the interest of justice and equity, including the award of
costs of this application.”
2. Facts in brief as narrated by the applicant are that
pursuant to Respondent No. 2 - Union Public Service Commission
(UPSC) inviting applications for the Civil Services Examinations,
2023 to fill approximately 1105 vacancies with 37 reserved for
Persons with Benchmark Disability (PwBD), 15 vacancies for
locomotor disability, the applicant applied for the Preliminary
Examination under the Scheduled Caste category and PwBD
category. The applicant, clearing the Preliminary Examination held
on 28.05.2023, appeared for the Main Examination held between
15.09.2023 to 24.09.2023 and secured 743 marks. The applicant
being eligible for Personality Test, submitted Detailed Application
Form II, providing preferences in services. The applicant secured
165 marks in the Personality Test and an aggregate of 908 marks
including the Main Examination marks. The applicant appeared
before the Medical Board and as per the medical examination report
dated 15.02.2024, his disability was recorded as 29%, which is less
than the benchmark disability of 40%. UPSC published list dated
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16.04.2024, of candidates recommended to the Union of India for
appointment to different services based on merit and the applicant
was found at Sl. No. 902 with a score of 908. The Respondent No.
4, who is the last candidate in the Scheduled Caste category, who
has been allotted IRS (IT), with the rank of 943 recommended for
selection with a score of 941. It is the grievance of the applicant
that though he was recommended by the UPSC for selection, he
was not allocated any service and persons below him were
allocated. The representation dated 31.07.2024 submitted by the
applicant has not yielded any response. The applicant submitted a
query dated 05.08.2024 under the Right to Information Act, 2005,
seeking information relating to non-allocation of service to the
applicant in spite of his merit which was declined stating that no
such information could be provided under the Right to Information
Act. Appeal preferred against the said order under the Right to
Information Act came to be rejected vide order dated 16.10.2024.
However, the Respondent No. 4 having secured a score of 901 with
rank of 943 and the Respondent No. 5 with a score of 901 and rank
of 941, respectively are allocated IRS (IT). Being aggrieved by the
non-selection of the applicant under the SC category in spite of his
superior merit as adjudged by the UPSC and allocation as well as
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appointment of the less meritorious candidates in preference to the
applicant, the applicant has preferred this OA.
3. Learned senior counsel Shri P.S. Rajagopal along with
learned counsel Shri Jayanth Dev Kumar representing the applicant
submitted that the applicant being more meritorious as adjudged by
the UPSC in the competitive examination conducted for the
purpose, is fully eligible to be included in the selection list above
the private respondents. The applicant has participated in the
examination without taking any relaxations such as age relaxations
or relaxations in number of attempts etc., as applicable to a
candidate under the Physically Handicapped category. The
applicant has been selected on his own merit under the SC category
with a score of 908 marks and 902 rank, as against the minimum
qualifying marks of 890 secured by the last recommended
candidate under SC. Placing reliance on the judgment of the
Hon’ble Apex Court in Rajesh Kumar Daria vs. Rajasthan
Public Service Commission and Ors. , (2007) 8 SCC 785, learned
counsel submitted that the 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., SC, ST, OBC; the third step
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would be to find out how many candidates belonging to special
reservations have been selected on the above basis. Learned counsel
has further referred to the order of this Tribunal in OA No.
872/2017 dated 20.12.2019 ( Shri Bhyrappa P.V. vs. Union of
India and ors. ) in support of his contention that the category of
PwBD is clearly a horizontal reservation, the order of merit has to
be organized first in terms of the various services in a vertical
manner for all the social categories viz., SC, ST and OBC.
4. Learned counsel Shri S. Prakash Shetty representing
Respondent Nos. 1 and 3, referring to the reply statement filed on
behalf of Respondent No. 1, submitted that the Respondent No.1’s
role is limited to allocation of services to the eligible candidates
keeping in view their rank in the all India merit list as
recommended by UPSC in the final result, preferences indicated by
them for various participating services, medical status, availability
of number of vacancies in their category at their turn and fulfilment
of special eligibility criteria in case of the PwBD candidates in
terms of functional classification and physical requirements
consistent with requirements of the service/post as may be
prescribed by its Cadre Controlling Authority. The applicant has
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applied for Civil Services Examination (CSE)-2023 under
Locomotor Disabilities (LD) sub-category of Persons with
Benchmark Disability (PwBD). Thereafter, the UPSC had
recommended the name of the applicant at Sl. No. 902 against the
vacancies reserved for LD sub-category under PwBD on the basis
of CSE-2023.The applicant belongs to SC category. After medical
examination, the applicant was declared as an invalid PwBD
candidate under the Locomotor Disabilities sub-category with 29%
disability by the Benchmark Disability Expert Panel (BDEP), All
India Institute of Medical Sciences (AIIMS), New Delhi-Central
Standing Medical Board (CSMB). Pursuant to an appeal preferred
by the applicant against the medical finding, appellate medical
examination was conducted at Appellate Disability Medical Board
(ADMB) constituted at Army Hospital (R&R), Delhi on 18.03.2024
as per the provisions of CSE Rules, 2023. The Appellate Disability
Medical Board, Delhi declared the percentage of disability of the
applicant as 23% in relation to whole body. That in view of the
applicant not found to be eligible under the PwBD - LD category as
per the findings of the CSMB and ADMB, applicant could not be
allocated to any service as per the CSE Rules-2023. Placing
reliance on Rule 26 of the CSE Rules, 2023, learned counsel
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submitted that once a candidate has chosen a reserved category, no
request shall be entertained for change to other category, viz., SC to
ST, ST to SC, OBC to SC/ST or SC/ST to OBC, SC to EWS, EWS
to SC, ST to EWS, EWS to ST, OBC to EWS, EWS to OBC etc.
Further, no candidate belonging to any sub-category of Persons
with Benchmark Disabilities (PwBD) shall be allowed to change
the sub-category of disability.
5. Learned counsel further submitted that the applicant
cannot claim allocation against the vacancy earmarked for non-
PwBD under UR/EWS/OBC/SC/ST category as well as for Hearing
Impairment (HI)/Visual Impairment (VI)/Multiple Disabilities
(MD) sub-category. The candidate claiming reservation in a
specific category cannot be considered against another reserved
category vacancies. The applicant is attempting to compare his
ranking with those candidates who had applied with the SC
category. The applicant though belongs to Scheduled Caste, had
consciously applied under the category of PwBD. Rule 26 of the
CSE Rules, 2023 as well as Clause No. 12 of the UPSC
Notification dated 01.02.2023 prohibits change of category once
application is filed. Under no circumstances, the applicant is
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entitled to seek any change of category at this stage, or entitled to
th
compare his ranking in PwBD category with the rankings of 4 and
th
5 respondents in the SC category.
6. Learned counsel Shri Vishnu Bhat representing
Respondent No. 2-UPSC submitted that the recommendation made
by the UPSC specifies both the categories of the applicant i.e., SC
and PwBD. No recommendation is made only under PwBD
category. Applicant ought to have been considered under SC
category having regard to his merit notwithstanding his percentage
of disability below 40% prescribed.
7. Since no reply statement was filed on behalf of
Respondent No. 2 and on the other hand Respondent No. 1 asserted
that the recommendation of the applicant was made by UPSC under
PwBD category, we had directed the UPSC to file an affidavit
inasmuch as the principles followed in preparing the merit list
considering the PwBD category under different reservation
categories and further to clarify whether the applicant was
considered in the preliminary examination, final examination and
interview under PwBD category alone or SC and PwBD category
or SC category alone. Though providing reasonable opportunity for
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the UPSC to file such an affidavit, the same is not filed. Given the
circumstances, we deem it fit to proceed on the basis of the
available records coupled with the oral submissions of the learned
counsel for the UPSC that the recommendation of the applicant was
made under both the categories i.e., SC and PwBD.
8. Private Respondent Nos. 4 and 5 remained ex-parte.
9. We have carefully considered the submissions of the
learned counsel for the parties and perused the material on record.
10. The Department of Personnel and Training (DoPT),
Ministry of Personnel, Public Grievances and Pensions,
Government of India notified the Civil Services Examination Rules,
2023 vide Notification dated 01.02.2023 to be held by the UPSC
for the purpose of filling vacancies in various Central Services,
including Indian Administrative Services, Indian Revenue Services
etc.
11. To effectively adjudicate the controversy at hand, it
is essential to conduct a structured analysis of the relevant
CSE Rules, 2023. In terms of Rule (2) of the said
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Notification, reservation will be made for candidates belonging to
the Scheduled Castes, Scheduled Tribes, Other Backward Classes,
Economically Weaker Sections as well as candidates belonging to
Persons with Benchmark Disability categories in respect of
vacancies as may be fixed by the government. Rule 13 provides for
Detailed Application Form-I (DAF-I) for The Main Examination.
As per Rule 14 (1), before the commencement of
interview/personality test of the examination, a candidate shall be
required to mandatorily indicate order of preferences only for those
services which are participating in the Civil Services Examination,
2023 and for which the candidate is interested to be allocated to in
case of eventual selection, in the online Detailed Application Form-
II (DAF-II).
12. Rule 20 (1) envisages that after interview/personality
test, the candidates will be arranged by the Commission in the order
of merit as determined by the aggregate marks finally awarded to
each candidate in the Main Examination. Thereafter, the
Commission shall, for the purpose of recommending candidates
against unreserved vacancies, fix a qualifying mark (general
qualifying standard) with reference to the number of unreserved
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vacancies to be filled up on the basis of the Main Examination. For
the purpose of recommending reserved category candidates
belonging to Scheduled Castes, Scheduled Tribes, Other Backward
Classes, Economically Weaker Sections and candidates belonging
to Persons with Benchmark Disability category against reserved
vacancies, the Commission may relax the general qualifying
standard with reference to number of reserved vacancies to be filled
up in each of these categories on the basis of the Main
Examination. Proviso appended thereto contemplates that the
candidates belonging to the Scheduled Castes, Scheduled Tribes,
Other Backward Classes, Economically Weaker Sections and
Persons with Benchmark Disability who have not availed of any of
the concessions or relaxations in the eligibility or the selection
criteria, at any stage of the examination and who after taking into
account the general qualifying standards are found fit for
recommendation by the Commission, shall not be recommended
against the vacancies reserved for Scheduled Castes, Scheduled
Tribes, Other Backward Classes, Economically Weaker Sections
and Persons with Benchmark Disability but shall in the first
instance be recommended by the Commission against the
unreserved vacancies.
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13. Rule 20 (2) provides that while making Service
Allocation, the candidates belonging to the Scheduled Castes,
Scheduled Tribes, Other Backward Classes, Economically Weaker
Sections and Persons with Benchmark Disability recommended
against unreserved vacancies may be adjusted against reserved
vacancies by the Government, if by this process they get a service
of higher choice in the order of their preference.
14. Rule 20 (4) (a) (1) provides that while recommending the
candidates, the Commission shall, in the first instance, take into
account the total number of vacancies in all categories. The total
number of recommended candidates shall be reduced by the
number of candidates belonging to Scheduled Castes, Scheduled
Tribes, Other Backward Classes, Economically Weaker Sections
and Persons with Benchmark Disability who acquire the merit at or
above the fixed general qualifying standard without availing of any
concession or relaxation in the eligibility or selection criteria in
terms of the proviso to sub-rule (1). In terms of Rule 20 (4) (a) (2),
while exercising the method defined in sub-rule (4)(a)(1), due
consideration may be taken to secure the vacancy(ies) for PwBD
candidates expected to be recommended from Reserve List, and if
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required, the total number of recommended candidates shall be
reduced appropriately in addition to reduction as per sub-rule
(4)(a)(1).
15. As per Rule 20 (5), the candidates recommended in terms
of the provisions of sub-rule (4), shall be allocated by the
Government to the Services and where certain vacancies still
remain to be filled up, the Government may forward a requisition to
the Commission requesting it to recommend, in order of merit,
from the Consolidated Reserve List, the same number of candidates
as requisitioned for the purpose of filling up the unfilled vacancies
in each category.
16. Rule 25 deals with reservation against vacancies for
Persons with Benchmark Disability. The eligibility for availing
reservation against the vacancies reserved for the Persons with
Benchmark Disabilities shall be the same as prescribed in "The
Rights of Persons with Disabilities Act, 2016 (RPwD Act, 2016)".
17. In terms of Rule 26 (1), if the category indicated by a
candidate in the application form for the Civil Services
(Preliminary) Examination is unreserved category but the candidate
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subsequently writes to the Commission to change the category to a
reserved one, such request shall not be entertained by the
Commission. Further, once a candidate has chosen a reserved
category, no request shall be entertained for change to other
reserved category viz., SC to ST, ST to SC, OBC to SC/ST or
SC/ST to OBC, SC to EWS, EWS to SC, ST to EWS, EWS to ST,
OBC to EWS, EWS to OBC, etc. No reserved category candidates
other than those who qualified each stage of examination on general
standard, shall be allowed to change (on their request or as decided
by the Commission/Government based on the documents submitted
by them) their category from reserved to unreserved or claim the
vacancies (Service/Cadre) for unreserved category after the
declaration of final result by UPSC. In cases where such candidates
do not qualify on general standard, their candidature shall be
cancelled. Further, no candidate belonging to any sub-category of
Persons with Benchmark Disabilities (PwBD) shall be allowed to
change the sub-category of disability.
18. Rule 27 (1) provides that a candidate will be eligible to
get the benefit of community-based reservation only in case the
particular community/caste to which the candidate belongs is
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included in the list of reserved communities issued by the Central
Government. Rule 28 provides that candidates seeking
reservation/relaxation benefits available for SC/ST/OBC/EWS/
PwBD/Ex-Servicemen must ensure that they are entitled to such
reservation/relaxation as per eligibility prescribed in the
Rules/Notice. They should also be in possession of all the requisite
certificates in prescribed format in support of their claim as
stipulated in the Rules/Notice for such benefits by the closing date
of the application for Civil Services (Preliminary) Examination,
2023.
19. The Respondent No. 2, UPSC, invited applications for
the Civil Services Examination, 2023 by recruitment notification
dated 01.02.2023. The said recruitment notification was issued to
fill approximately 1105 vacancies with 37 reserved for Persons
with Benchmark Disability, 15 vacancies for locomotor disability
including dwarfism. The notification further provided that
reservation will be made for candidates belonging to inter alia
Scheduled Caste and Scheduled Tribe, Persons with Benchmark
Disability, in respect of vacancies as may be fixed by the
Government.
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20. The applicant coming under the Scheduled Caste
category having dwarfism, applied for the Preliminary Examination
for the Civil Services Examination, 2023. The application
submitted by the applicant for Preliminary Examination (Annexure
A5) discloses that he claimed as a Scheduled Caste candidate
belonging to Locomotor Disability, etc. (under the Note,
Locomotor Disability category specifies dwarfism also). The
Scheduled Caste category reservation was claimed by the applicant
with the Community Certificate issued by the Tahsildar,
Nelamangala Taluk, Bangalore Rural District. The applicant
cleared the Preliminary Examination held on 28.05.2023 and
qualified for the Civil Services Main Examination securing 87.54 in
Paper I and 82.50 in Paper II. The cut-off marks prescribed for
Scheduled Caste candidate in the Preliminary Examination was
59.25. The applicant appeared for the Main Examination held
between 15.09.2023 to 24.09.2023 and secured 743 marks.
21. As per the Detailed Application Form-I (DAF-I)
submitted by the applicant for the Civil Services (Main)
Examination, 2023, in Sl. No. 8 (a) Community column, it is shown
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as SC (1). In Sl. No. 8 (a) and 8 (a.1), the applicant has claimed as
under:
“ 8. (a) Community | SC (1)
8. (a.1) Do you want to change your
Category from SC/ST/OBC/
EWS to Unreserved | NO ”
22. In Sl. No. 9.1.(a), it is claimed as under:
“9.1.(a)
Whether you are a
PwBD/PwD candidate
| PwBD
(b) (1)
Category | LOCOMOTOR
DISABILITY ETC”
23. In Sl. No. 9(b).2, 9 (c) (h), (j) and (k), it is stated as
under:
(b).2 Indicate Form Type of the
| Form VII
Certificate of Disability
(c) Percentage of disability as
indicated in the Certificate
of Disability
|GREATER OR
EQUAL TO 40%
(h) Are you a PwBD/PwD
candidate [as per column
9.1.(a)] having physical
limitation to write? (If Yes,
upload scanned copy of the
requisite certificate as per
Appendix-V (for PwBD)/
Appendix-VII (for PwD) of
the Notice of CSE, 2023
st
dated 1 February, 2023
| NO
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(j) Would you require scribe in
the Examination
| NO
(k) Would you require any
assistive device(s)
| NO
24. The applicant submitted Detailed Application Form-II
(DAF-II) for personality test providing preferences in services, with
Indian Administrative Service as ‘1’ and Indian Revenue Service
(Income Tax) as ‘2’. The applicant secured 165 marks in the
personality test and an aggregate of 908 marks including the Main
Examination marks. As per the marks sheet, result of the applicant
was shown in the remarks column as ‘Recommended’ by the
UPSC. The applicant being subjected to Medical Examination, the
Medical Board recorded his disability as 29%. On appeal preferred
by the applicant against the medical finding, further medical
examination was conducted at Appellate Disability Medical Board,
Army Hospital (R & R), Delhi on 18.03.2024. As per the report of
the ADMB, the percentage of the disability of the applicant was
declared as 23%.
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25. The list published by the UPSC dated 16.04.2024
indicates the names of the candidates recommended to the Union of
India for appointment to different services based on merit and the
applicant's name figures at Sl. No. 902 with a score of 908. The real
controversy begins from here as the Union of India, though relies
upon the very same recommended list, contends that the applicant's
candidature was recommended only under the category of PwBD-1
and not under the category of SC. In the reply statement filed on
behalf of the Respondent No. 1-Union of India, it is the specific
stance of the Respondent No. 1 that "the applicant had applied for
Civil Services Examination (CSE)-2023 under Locomotor
Disabilities (LD) sub-category of Persons with Benchmark
Disability (PwBD). Thereafter, the UPSC had recommended the
name of the applicant at Sl. No. 902 against the vacancies reserved
for LD sub-category of PwBD category on the basis of CSE-2023.
The applicant belongs to SC category."
26. In the list of recommended candidates forwarded by
UPSC to Union of India, the particulars of the applicant are shown
as under:
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“ ROLL_NO PwBD
NAME COMM
W_TOTAL PT_MARKS F_TOTAL S.NO
3533825 VASANTH
KUMAR G
PwB
SC
D-1
743 165 908 902”
The names of the Respondent Nos. 5 and 4 are shown at Sl. No.
941 and 943, respectively in the list of recommended candidates of
the UPSC forwarded to Union of India. Both these candidates are
coming under the category of SC. Both these private respondents
are allotted to the IRS (IT) service under SC category. As aforesaid,
the rankings of these private respondents in the recommended list
of the UPSC is below that of the applicant.
27. Now the primary question that arises for our
consideration is, the applicant having applied both under SC
category and PwBD category for Civil Services Examination, 2023,
whether his candidature has to be considered first under SC
category applying the vertical reservation based on the ranking
shown in the recommended list of UPSC notwithstanding his
disentitlement to reservation claimed under PwBD category i.e., the
horizontal reservation?
28. It is not in dispute that the applicant has not claimed any
relaxation on par with other PwBD candidates. Despite being
meritorious under SC category, he has been denied the appointment
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on the ground that first PwBD category reservation has to be fixed.
This view runs contrary to the established principles of law. Vide
Rule 20 (4) (a) (1), it is specified that while recommending the
candidates, the Commission shall, in the first instance, take into
account the total number of vacancies in all categories. The total
number of recommended candidates shall be reduced by the
number of candidates belonging to Scheduled Castes, Scheduled
Tribes, Other Backward Classes, Economically Weaker Sections
and Persons with Benchmark Disability who acquire the merit at or
above the fixed general qualifying standard without availing of any
concession or relaxation in the eligibility or selection criteria in
terms of the proviso to sub-rule (1). This sub rule is in pari materia
with Rule 16 (4) of CSE Rules, 2016 which has been considered by
this Tribunal in Bhyrappa P.V. , supra. In the said case, the
applicant - Shri Bhyrappa P.V. - belonging to OBC category and
also physically challenged under the LDCP sub-category had
scored 997 marks in the Civil Services Examination, 2016 and the
cut-off marks for the OBC candidates for selection was 951. He had
secured the rank of 475 with marks of 997 in the overall merit list.
The last candidate who was allotted to Indian Foreign Service under
the OBC category was ranked at 615 with total marks of 988 and
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the last person to be included in IRS (IT) Group-A was ranked 734
with the marks of 970 and he has not claimed any relaxation in
terms of age or attempts at the examination on par with other
Physically Handicapped OBC candidates. Despite being
meritorious than the other two selected persons, his allocation to
any service was deferred due to limited preferences. On
adjudicating upon the said issue, this Tribunal has observed thus:
“9. Vide para-13(1), the respondents would make a
concomitant claim that there is no concept of own merit in
horizontal reservation. Taking cue from the Hon’ble Apex
Court order(supra) that women selected on merit within the
vertical reservation quota will be counted against the
horizontal reservation for women. The claim of the applicant is
that he belongs to both OBC category as well as the Physically
Disabled category. The medical board certified him for all
services except the technical service specifically IRTS. Contrary
to the claim of the respondents, there are no other standards for
the 3 services the applicant has opted for i.e. IAS, IFA &
IRS(IT) Gr.A except Rule-21 which we have already seen. The
particular disabilities and services to which persons with such
disabilities can be considered are mentioned in Appendix-IV. It
is obvious that the respondents have considered persons with
certain physical disabilities as being not capable of discharge
of duties required in those particular services. We are unable to
find any justification for this claim of the respondents. In other
words, the nature of work in such services will be such that
even persons with the disabilities as mentioned in Appendix-IV
would be quite capable of discharging their duties without any
detriment to the work output or efficiency. Further, there are no
higher standards of physical or mental abilities required in
these services. The applicant’s disability is only locomotive
disability but otherwise he has been found to meet all the
physical and medical standards as would be required from a
non-PH candidate. The last point which the respondents make
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is that certain posts are allocated for PH category in each
service and the higher ranked people are accommodated in the
said nominated posts in the category and thereafter only a
vertical reservation is taken up. While on the one hand the
respondents would quote the Hon’ble Apex Court judgment in
Rajesh Kumar Daria stating very specifically that first it is the
vertical reservation that has to be done and thereafter,
horizontal reservation will come in, they continue to labour on
the point of not having any vacancies for PH candidates in the
said services. The category of PH is clearly a horizontal
reservation and as we have already seen under Rule-16(4), the
order of merit has to be organized first in terms of the various
services in a vertical manner for all the social categories
namely SC, ST & OBC. By all canons of natural justice and
selection by merit, a candidate with higher marks should
definitely find a place in the service requested by him provided
he is well within the cut off marks. As we have already seen, the
last candidate selected under OBC for IFS is ranked 615 while
the applicant’s rank is 475. Similarly, the last person to be
recommended for IRS(IT) under OBC category is ranked 734.
The weird logic of the respondents in fixing first the post for
physically challenged candidate and then denying it to a
candidate belonging to OBC who has higher merit than the last
selected candidate defies logic and is against all judicial
wisdom and their own rules. Therefore, we hold that the
applicant is eligible for being appointed to IFS as well as the
IRS(IT) Gr.A as per his choice and apparently he has chosen
IFS as the second option after IAS to which, of course, he is not
eligible. The respondents are therefore directed to issue
necessary orders for recommendation and other concerned
departments of the Government viz., DoP&T and MEA should
pass necessary orders for giving him appointment which he has
requested with all consequential benefits. He should be ordered
to be belonging to the concerned service based on the results of
Civil Services Examination-2016 with appropriate seniority
and other consequential benefits. This they shall do so within a
period of two(2) months from the date of issue of this order. The
applicant is at liberty to choose either IFS or IRS (IT) Gr.A and
the respondents shall take necessary action accordingly.
10. The OA is allowed with the above observations. No costs.”
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29. It is beneficial to refer to the judgment of the Hon'ble
Apex Court in Rajesh Kumar Daria , supra, the relevant portion of
which is quoted hereunder for ready reference:
“9. The second relates to the difference between the nature of
vertical reservation and horizontal reservation. Social
reservations in favour of SC, ST and OBC under Article 16(4)
are “vertical reservations”. Special reservations in favour of
physically handicapped, women etc., under Articles 16(1) or
15(3) are “horizontal reservations”. Where a vertical
reservation is made in favour of a Backward Class under
Article 16(4), the candidates belonging to such Backward
Class, may compete for non reserved posts and if they are
appointed to the non-reserved posts on their own merit, their
number will not be counted against the quota reserved for
respective Backward Class. Therefore, if the number of SC
candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage
of posts reserved for SC candidates, it cannot be said that the
reservation quota for SCs has been filled. The entire
reservation quota will be intact and available in addition to
those selected under Open Competition category. [Vide - Indra
Sawhney (1992 Supp (3) SCC 217), R. K. Sabharwal vs. State of
Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh
Chauhan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L.
Yamul (1996 (3) SCC 253)]. But the aforesaid principle
applicable to vertical (social) reservations will not apply to
horizontal (special) reservations. Where a special reservation
for women is provided within the social reservation for
Scheduled Castes, the proper procedure is first to fill up the
quota for Scheduled Castes in order of merit and then find out
the number of candidates among them who belong to the
special reservation group of “Scheduled Caste women”. If the
number of women in such list is equal to or more than the
number of special reservation quota, then there is no need for
further selection towards the special reservation quota. Only if
there is any shortfall, the requisite number of scheduled caste
women shall have to be taken by deleting the corresponding
number of candidates from the bottom of the list relating to
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Scheduled Castes. To this extent, horizontal (special)
reservation differs from vertical (social) reservation. Thus
women selected on merit within the vertical reservation quota
will be counted against the horizontal reservation for women.
Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for
women is four), 19 SC candidates shall have to be first
listed in accordance with merit, from out of the
successful eligible candidates. If such list of 19
candidates contains four SC woman candidates, then
there is no need to disturb the list by including any
further SC woman candidate. On the other hand, if the
list of 19 SC candidates contains only two woman
candidates, then the next two SC woman candidates in
accordance with merit, will have to be included in the list
and corresponding number of candidates from the bottom
of such list shall have to be deleted, so as to ensure that
the final 19 selected SC candidates contain four woman
SC candidates. [But if the list of 19 SC candidates
contains more than four woman candidates, selected on
own merit, all of them will continue in the list and there
is no question of deleting the excess woman candidates
on the ground that “SC-women” have been selected in
excess of the prescribed internal quota of four.]
10. In this case, the number of candidates to be selected under
general category (open competition), were 59, out of which 11
were earmarked for women. When the first 59 from among the
261 successful candidates were taken and listed as per merit, it
contained 11 woman candidates, which was equal to the quota
for “general category women”. There was thus no need for any
further selection of woman candidates under the special
reservation for women. But what RPSC did was to take only the
first 48 candidates in the order of merit (which contained 11
women) and thereafter, fill the next 11 posts under the general
category with woman candidates. As a result, we find that
among 59 general category candidates in all 22 women have
been selected consisting of eleven woman candidates selected
on their own merit (candidates at Sl.Nos.2, 3, 4, 5, 9, 19, 21, 25,
31, 35 and 41 of the Selection List) and another eleven
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(candidates at Sl.Nos.54, 61, 62, 63, 66, 74, 75, 77, 78, 79 and
80 of the Selection List) included under reservation quota for
“general category women”. This is clearly impermissible. The
process of selections made by RPSC amounts to treating the
20% reservation for women as a vertical reservation, instead of
being a horizontal reservation within the vertical reservation.”
In terms of the legal principles laid down by the Hon'ble Apex
Court in Rajesh Kumar Daria , supra, followed by this Tribunal in
Bhyrappa P.V. , supra, first, vertical reservation quota under SC
category has to be counted against the horizontal reservation for
PwBD.
30. Applying the vertical reservation first, the applicant
certainly has to be considered for selection by merit having regard
to the higher marks secured in SC category than the selected
candidates – private respondents for IRS (IT) service. Indisputably,
the private respondents selected under SC category for IRS (IT) are
ranked at 941 and 943 while the applicant's rank is 902 as per the
recommended list of UPSC. The logic of the Respondent No.1 in
fixing first the post for physically challenged category – horizontal
reservation and then for social reservation – vertical reservation is
illegal. Denying appointment to SC candidate who claimed
reservation under SC category and scored higher merit than the
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selected candidates is wholly untenable. The same runs against CSE
Rules, 2023 and the judicial dictums.
31. It is the specific case of the Respondent No. 1 that the
UPSC has recommended the applicant’s name in the recommended
list only under the PwBD category and not under SC category
which is totally not in conformity with the recommendation list of
the UPSC placed on record by the Respondent No. 1 itself which
categorically shows both SC and PwBD category relating to the
applicant. Learned counsel for UPSC also admits the same that the
applicant's candidature was recommended under both the categories
of SC and PwBD. No other ground is urged on behalf of
Respondent Nos. 1 and 3. That being the position, the argument of
the Respondent No. 1 that the category of PwBD, a horizontal
reservation has to be fixed first and then the vertical reservation has
to be considered, is wholly unjustifiable and must fail. Respondent
No. 1 is taking shelter under Rule 26 (1) to justify the denial of
appointment in Service – CSE, 2023 to the applicant which is
totally misconceived. Applicant is not claiming any change in the
category. There being no bar, he has applied under both the
categories of SC and PwBD. Rule 26 (1) is not applicable to the
facts of the present case.
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32. For the reasons aforesaid, we find merit in the OA.
Accordingly, we pass the following:
: ORDER :
1) Respondent Nos. 1 and 3 are directed to issue necessary
orders for providing the applicant an appointment in
Indian Revenue Service (Income Tax) considering his
candidature under SC category relating to the results of
Civil Services Examination, 2023 with appropriate
seniority and other consequential benefits.
2) Compliance shall be made in an expedite manner, within
a period of eight weeks from the date of receipt of
certified copy of the order.
3) OA is allowed to the extent indicated above.
No order as to costs.
Sd/- Sd/-
( DR. SANJIV KUMAR ) ( JUSTICE S. SUJATHA )
MEMBER (A) MEMBER (J)
/ksk/
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CAT, Bangalore
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