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Neutral Citation No. - 2023:AHC:150959

Court No. - 10 AFR

Case :- WRIT - A No. - 40695 of 2005

Petitioner :- Ajay Kumar

Respondent :- State of U.P. and Others

Counsel for Petitioner :- Anil Tiwari,Dharmendra Shukla

Counsel for Respondent :- C.S.C.,Ashok Khare,Hitesh

Pachori,M.A. Qadeer,Nisheeth Yadav,R.B.Saxena,Rohit

Upadhyay

Hon'ble Kshitij Shailendra,J.

1. Heard Shri Anil Tiwari, learned Senior Counsel assisted by

Shri Ramesh and Sri Dharmendra Shukla, learned counsel for

the petitioner, Shri Bharat Pratap Singh, the Additional Chief

Standing Counsel along with Shri Neeraj Tripathi, Additional

Advocate General on behalf of respondent no. 1 and Shri

Nisheeth Yadav, learned counsel representing the respondent -

U.P. Public Service Commission and perused the records.

2. After hearing the learned counsel for the parties, I find that

the controversy involved in this matter with regard to horizontal

reservation admissible to women candidates is covered in terms

of the judgment of the Apex Court in the case of Saurav Yadav

and Others Vs. State of U.P. and Others (2021) 4 SCC 542.

Relevant portions of the said judgment shall be referred at

appropriate place in this judgment.

3. The present writ petition has been filed by one Ajay Kumar

challenging the impugned selection list published on

22.07.2004 insofar as it recommended selection in favour of

Smt. Archana Jauhary and Km. Anshu Lata Sarkar, respondent

nos. 4 and 5, respectively to the writ petition. Further prayer has

been made for commanding the respondents to arrange the

select list afresh strictly in accordance with the eligibility

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criteria and without giving any reservation to the women as a

class and with further mandamus commanding the

respondents not to make any appointment pursuant to the

recommendations made by the respondent - Commission on

the post of Assistant Registrar pursuant to the advertisement

in question.

4. The submission of Shri Anil Tiwari is to the effect that the

U.P. Public Service Commission advertised 14 vacancies of

Assistant Registrars in the year 2000 and insofar as

horizontal reservation is concerned, it was provided that two

posts shall remain reserved for women category candidates as

per the Government Orders applicable which provided 20%

reservation in that regard. He submits that out of 14 posts, 7

posts were of open category candidates and, therefore, if 20%

reservation is applied for women, the said calculation would

go to 1.4 which, when rounded off, would go to 1 (one). He

further submits that only one post out of 7 could have been

filled up by offering selection / appointment to a single

woman whereas, the respondents have finalized selection in

favour of respondent nos. 4 and 5, i.e., 2 women by making

wrong calculation of 20% of 14 vacancies, i.e., 2.8 which

would come to 2 (two) and, therefore, instead of applying

reservation on the basis of compartmentalization, two posts

have been wrongly filled up.

5. In support of his contention, reference to various

authorities has been made by Sri Anil Tiwari and it has been

contended that after the Full Bench of this Court decided the

issue of reservation vide its judgement dated 16.07.2019 in

this very petition, the matter reached up to Supreme Court

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where, not only the judgment rendered by the Full Bench of

this Court was considered but also the judgments on the same

issue pronounced by the High Courts of Rajasthan, Bombay,

Uttrakhand and Gujarat were discussed at length and final

judgment was passed in the case of Saurav Yadav (supra).

6. Shri Anil Tiwari has placed reliance upon paragraph nos.

24, 27, 28, 40 and 43 of the said judgment which are

reproduced herein below:-

"24. The view taken by the High Courts of

Rajasthan, Bombay, Uttarakhand and Gujarat is

thus contrary to the one that weighed with the

High Court of Allahabad. Apart from the orders

referred to in paras 11 to 13 hereinabove, the Full

Bench of the High Court of Allahabad in Ajay

Kumar v. State of U.P. held:-

"94. For the aforesaid, to our mind, inter se merit

of women has no role to play in the implementation

of horizontal reservation as the socially reserved

candidate (SC, ST, & OBC) seeking benefit of

reservation of special category (women) cannot

claim adjustment in open category."

27. The High Courts of Rajasthan, Bombay,

Uttarakhand, and Gujarat have adopted the same

principle while dealing with horizontal reservation

whereas the High Court of Allahabad and Madhya

Pradesh have taken a contrary view. These two

views, for facility, are referred to as the "first view"

and the "second view" respectively. The second

view that weighed with the High Courts of

Allahabad and Madhya Pradesh is essentially

based on the premise that after the first two steps

as detailed in para 18 of the decision in Anil

Kumar Gupta and after vertical reservations are

provided for, at the stage of accommodating

candidates for effecting horizontal reservation, the

candidates from reserved categories can be

adjusted only against their own categories under

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the vertical reservation concerned and not against

the "Open or General Category".

28. Thus, according to the second view, different

principles must be adopted at two stages; in that:

(I) At the initial stage when the "Open or General

Category" seats are to be filled, the claim of all

reserved category candidates based on merit must

be considered and if any candidates from such

reserved categories, on their own merit, are

entitled to be selected against Open or General

Category seats, such placement of the reserved

category candidate is not to affect in any manner

the quota reserved for such categories in vertical

reservation.

(II) However, when it comes to adjustment at the

stage of horizontal reservation, even if, such

reserved category candidates are entitled, on

merit, to be considered and accommodated against

Open or General seats, at that stage the candidates

from any reserved category can be adjusted only

and only if there is scope for their adjustment in

their own vertical column of reservation.

Such exercise would be premised on following

postulates:

(A) After the initial allocation of Open General

Category seats is completed, the claim or right of

reserved category candidates to be admitted in

Open General Category seats on the basis of their

own merit stands exhausted and they can only be

considered against their respective column of

vertical reservation.

(B) If there be any resultant adjustment on account

of horizontal reservation in Open General

Category, only those candidates who are not in any

of the categories for whom vertical reservations is

provided, alone are to be considered.

(C) In other words, at the stage of horizontal

reservation, Open General Category is to be

construed as category meant for candidates other

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than those coming from any of the categories for

whom vertical reservation is provided.

40. We, therefore, do not approve the second view

and reject it. The first view which weighed with

the High Courts of Rajasthan, Bombay,

Uttarakhand and Gujarat is correct and rational.

43. Finally, we must say that the steps indicated

by the High Court of Gujarat in para 69 of its

judgment in Tamannaben Ashokbhai Desai

contemplate the correct and appropriate

procedure for considering and giving effect to

both vertical and horizontal reservations. The

illustration given by us deals with only one

possible dimension. There could be multiple such

possibilities. Even going by the present illustration,

the first female candidate allocated in the vertical

column for Scheduled Tribes may have secured

higher position than the candidate at Serial No.

64. In that event said candidate must be shifted

from the category of Scheduled Tribes to Open /

General category causing a resultant vacancy in

the vertical column of Scheduled Tribes. Such

vacancy must then enure to the benefit of the

candidate in the waiting list for Scheduled Tribes –

Female. The steps indicated by the Gujarat High

Court will take care of every such possibility. It is

true that the exercise of laying down a procedure

must necessarily be left to the authorities

concerned but we may observe that one set out in

said judgment will certainly satisfy all claims and

will not lead to any incongruity as highlighted by

us in the preceding paragraphs."

7. By referring to the aforesaid paragraphs, it has been argued

that the Supreme Court has approved the view taken by the

Gujarat High Court and, insofar as calculation part is

concerned, method of calculation described in paragraph no.

69 of the judgment of the Gujarat High Court in the case of

Tamannaben Ashokbhai Desai vs. Shital Amrutlal Nishar

(2020) SCC OnLine Guj 2592 has been approved. The said

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paragraph no. 69 has been reproduced by the Supreme Court

in Paragraph No. 23.11 of the judgment in the case of Saurav

Yadav (supra) which reads as follows :-

"69. For the future guidance of the State

Government, we would like to explain the proper

and correct method of implementing horizontal

reservation for women in a more lucid manner.

'PROPER AND CORRECT METHOD OF

IMPLEMENTING HORIZONTAL RESERVATION

FOR WOMEN.

No. of posts available for recruitment. ..… 100

Social Reservation Quota (49%)

Open Competition (OC) ..… 51

Scheduled Castes (SC ) ..… 12

Scheduled Tribes (ST) ….. 17

Socially and Educationally Backward Classes (SEBC) ... 20

Horizontal Reservation for Women (33% in each of the

above categories)

OC ..… 17

SC .…. 04

ST ….. 06

SEBC … 07

Step 1: Draw up a list of at least 100 candidates

(usually a list of more than 100 candidates is

prepared so that there is no shortfall of appointees

when some candidates don't join after offer)

qualified to be selected in the order of merit. This

list will contain the candidates belonging to all the

aforesaid categories.

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Step 2: From the aforesaid Step 1 List, draw up a

list of the first 51 candidates to fill up the OC

quota (51) on the basis of merit. This list of 51

candidates may include the candidates belonging

to SC, ST and SEBC.

Step 3: Do a check for horizontal reservation in

OC quota. In the Step 2 List of OC category, if

there are 17 women (category does not matter),

women's quota of 33% is fulfilled. Nothing more is

to be done. If there is a shortfall of women (say,

only 10 women are available in the Step 2 List of

OC category), 7 more women have to be added.

The way to do this is to, first, delete the last 7 male

candidates of the Step 2 List. Thereafter, go down

the Step 1 List after Item 51, and pick the first 7

women (category does not matter). As soon as 7

such women from Step 1 List are found, they are to

be brought up and added to the Step 2 List to make

up for the shortfall of 7 women. Now, the 33%

quota for OC women is fulfilled. List of OC

category is to be locked. Step 2 List becomes final.

Step 4: Move over to SCs. From the Step 1 List,

after Item 51, draw up a list of 12 SC candidates

(male or female). These 12 would also include all

male SC candidates who got deleted from the Step

2 List to make up for the shortfall of women.

Step 5: Do a check for horizontal reservation in the

Step 4 List of SCs. If there are 4 SC women, the

quota of 33% is complete. Nothing more is to be

done. If there is a shortfall of SC women (say, only

2 women are available), 2 more women have to be

added. The way to do this is to, first, delete the last

2 male SC candidates of the Step 4 List and then to

go down the Step 1 List after Item 51, and pick the

first 2 SC women. As soon as 2 such SC women in

Step 1 List are found, they are to be brought up

and added to the Step 4 List of SCs to make up for

the shortfall of SC women. Now, the 33% quota for

SC women is fulfilled. List of SCs is to be locked.

Step 4 List becomes final. If 2 SC women cannot be

found till the last number in the Step 1 List, these 2

vacancies are to be filled up by SC men. If in case,

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SC men are also wanting, the social reservation

quota of SC is to be carried forward to the next

recruitment unless there is a rule which permits

conversion of SC quota to OC.

Step 6: Repeat steps 4 and 5 for preparing list of

STs.

Step 7: Repeat steps 4 and 5 for preparing list of

SEBCs."

8. While explaining the calculation, it has been argued that

before the Gujarat High Court, 33% horizontal reservation

was applicable for women candidates and it was calculated

on the basis of compartmentalization, that is to say that out of

100 posts available, upon computation, Open Competition

category posts were described as 51 and, accordingly, 17

posts (33% of 51) were calculated for women category

candidates. Identical calculations for remaining categories,

i.e., Scheduled Castes and Scheduled Tribes and Socially and

Educationally Backward Classes category candidates were

also made.

9. Further, it has been argued that in the present case, 20%

horizontal reservation would be calculated in respect of 07

posts in open category, and that would work out to be 01 post

only and, therefore, filling up of 02 posts of women category

candidates is contrary to the decision of the Apex Court.

10. Shri Nisheeth Yadav and Shri Neeraj Tripathi, learned

counsel for the respondents side have argued that the

concerned advertisement was issued in the year 2000 and

horizontal reservation was to be applied as per the law

applicable at that time and the Commission had rightly

applied the same in the present case also. It has been

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submitted that the calculation of horizontal reservation as laid

down by the Apex Court in paragraph no. 23.11 of judgment

of Saurav Yadav (supra) is correct position of law.

11. This Court had, by interim order dated 24.05.2005,

initially restrained joining of posts by the respondent nos. 4

and 5. However, later on, by way of order dated 27.05.2009,

the interim order dated 24.05.2005 was modified and it was

directed as follows : -

"To protect interest of the petitioner and to balance equities

during the period the writ petition is pending, we modify the

interim order dated 24.05.2005 and we direct that if the

respondent nos. 4 and 5 are appointed, their appointment

would be the subject to the result of the writ petition."

12. It is contented that the respondent nos. 4 and 5 were

appointed pursuant to the modification of the interim order

and after completing their entire tenure of service, they have

superannuated.

13. In view of the above discussions, in so far as appointment

of respondent nos. 4 and 5 is concerned, the same cannot be

quashed nor can any order be passed in this writ petition to

the detriment of the interest of the respondent nos. 4 and 5.

14. The issue which remains to be decided in the present

case is as to what kind of relief, the petitioner would get in

the present set of facts and circumstances, particularly when

this Court is taking a view in consonance with the law laid

down by Apex Court in Saurav Yadav (supra).

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15 Admittedly, the petitioner is working in the office of

Accountants Comptroller General of India. While Shri Anil

Tiwari submits that once it is held that only 01 post could

have been filled up by woman candidate, the petitioner being

next candidate in the order of merit, was entitled for filling

up the second post which was erroneously filled up by

according reservation to another woman candidate who was

not entitled for the same. He, therefore, submits that the

petitioner should be offered appointment on any vacancy in

the said cadre as he could not have been removed and,

therefore, was entitled to get the appointment at that very

time.

16. In support of his contention, in this regard, Shri Anil

Tiwari has referred to paragraph no. 44 of the judgment of

Saurav Yadav (supra) which reads as under : -

"44. Having come to the conclusion that Appellant

1 and similarly situated candidates had secured

more marks than the last candidates selected in

"Open / General Category", the logical

consequence must be to annul said selection and

direct the authorities to do the exercise de novo in

the light of conclusions arrived at by us. However,

considering the facts that those selected candidates

have actually undergone training and are presently

in employment and that there are adequate number

of vacancies available, we mould the relief and

direct as under :

44.1. All candidates coming from "OBC Female

Category" who had secured more marks than

274.8928 i.e. the marks secured by the last

candidate appointed in "General Category-

Female" must be offered employment as

Constables in Uttar Pradesh Police.

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44.2. Appropriate letters in that behalf shall be

sent to the candidates concerned within four

weeks.

44.3. If the candidates concerned exercise their

option and accept the offer of employment,

communications in that behalf shall be sent by

the candidates concerned within two weeks.

44.4. On receipt of such acceptance, the codal and

other formalities shall be completed within three

weeks.

44.5. Letters of appointment shall thereafter be

issued within a week and the candidates concerned

shall be given appropriate postings.

44.6. For all purposes, including seniority, pay

fixation and other issues, the employment of such

candidates shall be reckoned from the date the

appointment orders are issued."

17. Shri Anil Tiwari has further placed reliance upon a

Division Bench judgement of this Court in case of Pawan

Kumar Tiwari Vs. Hon'ble High Court of Judicature at

Allahabad reported in 2003 (4) ESC 2097 and has argued that

by clearly applying the principle of rounding off, the

Division Bench had decided the said case in almost idential

circumstances and held that the petitioner shall not be entitled

to back wages etc. However, he will be treated notionally

appointed w.e.f. the date his batch mates had been given

appointment and the notional period would count for the

purposes of fixing salary, annual increaments etc., and post

retiral benefits in favour. He further submits that the said

judgment of the Division Bench has been upheld by the

Supreme Court in the case of State of U.P. and Anr. Vs.

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Pawan Kumar Tiwari and others, (2005) 2 SCC 10. He

further submitted that even in the subsequent round of

litigation initiated by the said Pawan Kumar Tiwari, reliefs

were granted to him by Division Bench of this Court in its

order dated 22.01.2021 passed in Writ A No. 6981 of 2020

(Pawan Kumar Tiwari Vs. State of U.P. and 4 Ors.) in which

a direction was issued to the State to take appropriate steps for

correct placement of the said petitioner in the list of selectees.

18. On the other hand, the contention of Shri Neeraj Tripathi

and Shri Nisheeth Yadav is that once the Supreme Court in

the case of Saurav Yadav (supra) declined to issue any

mandamus in favour of the concerned petitioners who had

claimed absorption against unfilled vacancies, no relief can

be granted to the petitioner, even if it is held that instead of

one post, two posts were filled up by horizontal reservation

accorded to the women category candidates.

19. Shri Nisheeth Yadav and Shri Neeraj Tiwari have also

relied upon paragraph no. 49 of the judgment which reads as

under:-

"49. If there are unfilled vacancies, it is up to

the authorities to act purely in terms of the

statutory provisions concerned. Neither any case

for issuance of mandamus, as prayed for, has

been made out nor do we think it appropriate to

pass any orders directing the authorities

concerned to absorb the petitioners against

unfilled vacancies.

20. Shri Nisheeth Yadav has vehemently argued that as on

today, despite the aforesaid legal position settled by the Apex

Court in the case of Saurav Yadav (supra), the petitioner

cannot get any relief. He has argued that it is a case where the

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legal position was not clear at the time when the writ petition

was filed and the matter was ultimately referred to the larger

Bench in the year 2015 and the larger Bench (Full Bench)

decided this writ petition on 16.07.2019, but even thereafter,

the matter went to the Apex Court and, ultimately, has been

settled in terms of the judgment rendered in the case of

Saurav Yadav (supra). Elaborating his arguments based upon

the concept of "prospective overruling", Shri Nisheeth Yadav

has placed reliance upon following authorities -

i. Ashika Prasad Shukla vs. Dist. Inspector of Schools,

Allahabad & Ors. (1998) 3 AWC 2150.

ii. Somaiya Organics (India) Ltd. & Anr. vs. State of U.P.

& Anr. (2001) 5 SCC 519.

iii. Kailash Chand Sharma vs. State of Rajasthan & Ors.

(2002) 6 SCC 562.

iv. Employees' State Insurance Corpn. & Ors. vs. Jardine

Henderson Staff Association & Ors. (2006) 6 SCC 581.

v. Union of India & Ors. vs. Chaman Rana with Union of

India & Ors. vs. Gulshan Kumar Sharma (2018) 5 SCC

798.

21. After carefully examining the authorities cited by Shri

Nisheeth Yadav, it would be pertinent to observe that Golak

Nath was overruled in Keshwanand Bharti v. State of Kerala,

(1973) 4 SCC 225 : AIR 1973 SC 1461, but the principle laid

down in Golak Nath in respect of prospective overruling has

not been touched in Keshwanand Bharti rather in its

subsequent decisions, the Supreme Court has reiterated the

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principle of prospective overruling as laid down in Golak

Nath. In Managing Director E.C.I.L., Hyderabad v. B.

Karunakar, JT 1993 (6) SC 1 at p. 46 para 73 : ((1993) 4 SCC

727 : AIR 1994 SC 1074), it was held as under :

"As a matter of constitutional law retrospective

operation of overruling decision is neither required

nor prohibited by the Constitution but is one of

judicial attitude depending on the facts and

circumstances in each case, the nature and

purpose of the particular overruling decision seeks

to serve. The Court would look into the justifiable

reliance on the overruled case by the

administration ; ability to effectuate the new rule

adopted in the overruling case without doing

injustice ; likelihood of its operation whether

substantially burdens the administration of justice

or retard the purpose..... This Court would adopt

retroactive or non-retroactive effect of a decision

not as a matter of policy determined in each case

after evaluating the merits and demerits of the

particular case by looking to the prior history of

the rule in question, its purpose and effect and

whether retroactive operation will accelerate or

retard its operation. The reliance on the old rule

and the cost of the burden of the administration are

equally germane to give effect to prospective or

retrospective operation."

22. When the Apex Court decided in Golak Nath case that the

power of amendment under Article 368 of the Constitution

did not allow Parliament to abridge the fundamental rights in

Part III of the Constitution, it made the decision operative

with prospective effect. This was done in recognition of the

fact that between the coming into force of the Constitution on

26-1-1950 and the date of the judgment, Parliament had in

fact exercised the power of amendment in a way which,

according to the decision in Golak Nath was void. If

retrospectivity were to be given to the decision, "it would

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introduce chaos and unsettled conditions in our country". On

the other hand it also recognised that such possibility of

chaos might be preferable to the alternative of a totalitarian

rule. The Court, therefore, sought to evolve "some reasonable

principle to meet this extraordinary situation". The

reasonable principle which was evolved was the doctrine of

prospective overruling.

23. Although the doctrine of "prospective overruling" was

drawn from American jurisprudence, it has/had, of necessity,

to develop indigenous characteristics, the parameters of the

power, as far as this country is concerned, were sought to be

laid down in Golak Nath itself when it was said: (SCR p. 814

B-D)

"As this Court for the first time has been called

upon to apply the doctrine evolved in a different

country under different circumstances, we would

like to move warily in the beginning. We would lay

down the following propositions: (1) The doctrine

of prospective overruling can be invoked only in

matters arising under our Constitution; (2) it can

be applied only by the highest court of the country,

i.e., the Supreme Court as it has the constitutional

jurisdiction to declare law binding on all the

courts in India; (3) the scope of the retroactive

operation of the law declared by the Supreme

Court superseding its earlier decisions is left to its

discretion to be moulded in accordance with the

justice of the cause or matter before it."

The parameters have not been adhered to in practice.

24. The word "prospective overruling" implies an earlier

judicial decision on the same issue which was otherwise

final. That is how it was understood in Golak Nath. However,

the Supreme Court has used the power even when deciding

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on an issue for the first time. Thus in India Cement Ltd. v.

State of T.N. when Apex Court held that the cess sought to be

levied under Section 115 of the Madras Panchayats Act, 1958

as amended by Madras Act 18 of 1964, was unconstitutional,

not only did it restrain the State of Tamil Nadu from

enforcing the same any further, it also directed that the State

would not be liable for any refund of cess already paid or

collected.

25. The maxim of equity which is founded upon justice and

good sense was applied as well as other maxim lex non cogit

ad impossibilia - the law does not compel a man to do what

he cannot possibly perform. The applicability of the aforesaid

maxim has been approved by this Court in Raj Kumar Dey v.

Tarapada Dey and Gursharan Singh v. New Delhi Municipal

Committee.

26. It is well settled that declaration of law can be made

prospective i.e. operative from the date of the judgment.

Apex Court in several decisions has laid down the law and

declared it to be operative only prospectively. The

Constitution Bench of Supreme Court in Somaiya Organics

(India) Ltd. v. State of U.P. has discussed at length the

principles of prospective overruling.

27. Ultimately, it is a question of Court's discretion and is, for

this reason, relatable directly to the words of the Court

granting the relief."

28. In Harsh Dhingra v. State of Harayana (2001) 9 SCC

550, the Supreme Court held that Prospective declaration of

law is a device innovated by this Court to avoid reopening of

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settled issues and to prevent multiplicity of proceedings. It is

also a device adopted to avoid uncertainty and avoidable

litigation. By the very object of prospective declaration of

law it is deemed that all actions taken contrary to the

declaration of law, prior to the date of the declaration are

validated. This is done in larger public interest.

29. In the case of Union of India & Ors. vs. Chaman Rana

(supra), the Supreme Court was dealing with a case where

belated claim was made by the concerned employee seeking

promotion and the Apex Court held that direction for

retrospective consideration for promotion after 17 to 20 years

in the light of belated claim was wholly untenable.

30. There is no dispute regarding the law laid down as

explained by the Supreme Court in the aforesaid authorities.

However, in the present case, the concept of prospective

overruling or granting any relief to the petitioner has to be

examined in light of the fact that the impugned selection was

made in 2004, the writ petition was immediately filed in

2005, affidavits were exchanged during the course of time

and the matter was referred to the larger Bench in 2015. The

larger Bench, i.e., the Full Bench, decided the case in 2019

and the Apex Court settled the controversy in 2021 and,

thereafter, this writ petition has been heard in the year 2023.

31. Further, an interim order was passed in the present case in

2005 which was modified in 2009 protecting the services of

the respondent nos. 4 and 5 who have already retired after

getting benefits of the interim order. This Court in order to

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balance equities during the pendency of the writ petition

passed in the modification order dated 27.05.2009.

32. The Maxim "Actus Curiae Neminem Gravabit" means

that nobody should be allowed to suffer for the fault of the

court. This is an important Latin Maxim of Equity, which has

wide application in the subordinate as well as higher

judiciary of India. It would be relevant to refer to

Inderchand Jain (Dead) through LRs. Vs. Motilal (Dead)

through LRs., (2009) 14 SCC 663, wherein the Apex Court

observed that the said maxim is founded upon equity &

justice and helpful in the administration of law.

33. In the aforesaid factual background of the case, if, merely

delay in disposal of the writ petition for the aforesaid reasons,

is taken as a ground to deny relief to the petitioner, that

would be a mockery of the legal system and the institution of

justice for which it has been established. In the considered

opinion of this Court, particularly taking light from the

paragraph no. 44 and its various sub-paragraphs in the

judgment of Saurav Yadav (supra), I proceed to consider the

question on grant of relief to the petitioner and I find that

different category candidates were petitioners before the

Apex Court and denying relief to one set of petitioners in

paragraph no. 49 and granting some relief to other set of

petitioners in paragraph no. 44 is a matter of concern in the

present set of facts and circumstances.

34. The Supreme Court, in paragraph no. 42, had ordered for

issuance of letter of appointment to the concerned candidates

and it was made clear in paragraph no. 44.6 that for all

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purpose, including seniority, pay-fixation and other issues,

employment of such candidates shall be reckoned from the

date of appointment orders are issued.

35. In this regard, Anil Tiwari submits that the petitioner is

entitled not only for appointment on any post lying vacant,

his seniority and other benefits should also be computed and

adjusted according to the seniority which the petitioner

would have got, had the impugned action not been taken to

the detriment of his interest. The learned counsel for the

respondents however submit that the petitioner being

candidate of a different cadre, cannot be accorded any benefit

of seniority or otherwise as the issue involved relates to a

different cadre altogether.

36. While concluding the judgment, I find that the

Commission was not justified in filling up two posts by

according horizontal reservation to women candidates but it

could fill up only a single post and, therefore, the petitioner,

being next in the order of merit, should have been appointed

on the vacant post.

37. In view of the above, the writ petition succeeds and is

partly allowed.

38. Without disturbing any aspect of the services rendered by

respondent nos. 4 and 5 during the pendency of the writ

petition, a direction is issued to the respondent nos. 1 and 2 to

offer appointment to the petitioner on any vacant post in the

cadre. In case, the petitioner accepts the offer of appointment,

the respondents shall be at liberty to take a decision in

accordance with law with regard to the benefits that

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petitioner would be entitled to as per para 44.6 of the

judgment of Saurav Yadav (supra).

Order Date :- 27.7.2023

Vipasha

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