REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.74 OF 2010

(Arising out of Special Leave Petition (C) No. 1952 OF 2008)

JITENDRA KUMAR SINGH AND ANR. ….APPELLANT(S)

VERSUS

STATE OF U.P. AND ORS. ……RESPONDENT (S)

WITH

Civil Appeal No.75 /2010

(@ SLP (C) No. 1967 of 2008)

WITH

Civil Appeal No.79 /2010

(@ SLP (C) No. 1959 of 2008)

WITH

Civil Appeal No.80 /2010

(@ SLP (C) No. 7739 of 2008)

WITH

Civil Appeal Nos.76-78 /2010

(@ SLP (C) Nos. 14078-14080 of 2008)

WITH

Civil Appeal No.81 /2010

(@ SLP (C) No. 19100 of 2009)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

Civil Appeal Nos…………………………… of 2010

(arising out of SLP (C)Nos.1952, 1959, 1967 & 7739 of 2008

1.Leave granted.

2.These Appeals are directed against the common Division

Bench judgment of the High Court of Judicature at Allahabad

dated 22.12.2006. By the aforesaid judgment, the High Court

decided number of Appeals directed against the common

judgment of the learned Single Judge in Writ Petition

No.25328 of 2001 and a number of other connected writ

petitions.

3.The appellants had assailed the judgment dated 22.5.2002 of

the learned Single Judge to the extent that the Writ Petition

Nos.25328, 26847, 36411, 28836, 26177, 34039, 4630, 32763,

27849, 27060, 29069 of 2001 and 47528 of 2002 had been

dismissed whereby the petitioners-appellants were seeking a writ in

the nature of mandamus directing the respondents to send them for

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training to the post of Sub Inspectors. In some of the writ petitions,

a prayer had also been made for quashing the entire select list

which was also declined by the learned Single Judge. In Special

Appeal No.592 of 2006, the appellant who was respondent had

assailed the aforesaid judgment of the learned Single Judge only to

the extent the Single Judge had issued a writ in the nature of

mandamus to the respondent-appellants to fill up vacancies against

2% Sports Quota from the aforesaid selection itself. In Special

Appeal No.1285 of 2002, the original petitioner had challenged the

judgment dated 01.10.2002 passed by the learned Single Judge

(R.K.Agarwal, J.) dismissing the writ petition no.47528 of 2002

following the judgment dated 22.5.2002 of Ashok Bhusan, J. in

writ petition no.25328 of 2001 and other connected matters (supra).

In Special Appeal No.910 of 2005, the original petitioner had

assailed the judgment dated 19.7.2005 of Sunil Ambwani, J.

dismissing writ petition no.29383 of 2001 again following the

judgment dated 22.5.2002 of Ashok Bhusan,J (supra).

4. The dispute between the petitioners and the respondents

revolves around the issue of reservation of posts for Backward

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Classes, Scheduled Castes, Scheduled Tribes, Women Candidates

and Sportspersons.

5. We may notice here the relevant facts before we advert to

controversy in detail.

6. An advertisement was issued on 4.5.1999 for direct

recruitment on the post of Sub Inspectors in Civil Police (hereinafter

referred to as “SICP”) and Platoon Commanders in PAC

(hereinafter referred to as “PC”). According to the respondents, the

break down of the posts was 1379 Posts for SICP and 255 posts

for PC. Out of these posts, 2% posts were reserved for outstanding

Sportspersons. The recruitments to these posts were to be made by

a separate advertisement. Apart from above, 10% of the posts were

reserved for women.

7.The procedure for selection included a Preliminary Written

Test consisting of 300 marks. Candidates were required to secure at

least 50% marks for being declared successful and entitled to

participate in further test. This was followed by a Physical Test

consisting of 100 marks. Again the candidate had to secure at least

50% or more marks. The marks obtained in the Preliminary Written

Test and the Physical Test were, however, not to be included for

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determination of final merit. Candidates who qualified in the

Preliminary Written Test and the Physical Test were required to

appear in the Main Written Test consisting of 600 marks, having

two papers i.e. General Hindi, General Knowledge and Mental

Aptitude Test. Here again a candidate who secured 40% or more

marks could only be declared successful. The written test consisted

of two papers- (i) Hindi language and Essay consisting of 200

marks and (ii) General Knowledge and Mental Aptitude Test

consisting of 400 marks. Thereafter, the candidate was to appear

for interview which consisted of 75 marks. There were, however, no

qualifying marks for the interview.

8.It is common ground that in response to the advertisement,

more than 50,000 candidates applied for the posts. The result for

the Preliminary Written Test which was held on 6.2.2000, was

declared on 22.9.2000. 7325 candidates were found successful.

Physical Test was held from 29.10.2000 to 6.11.2000 and 1454

candidates were found successful. The Main Written Test was held

on 29.4.2001 wherein 1178 candidates were declared successful.

The final result of the interview was declared on 6.7.2001, wherein

1006 candidates were declared successful. The number of persons

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who were selected in different categories finally and have been sent

for Training is as under:-

1.General (Male) for the post of Sub Inspectors608

2.General (Female) for the post of Sub

Inspectors (This included one dependent of

freedom fighter)

Note: 163 OBC, 19 Scheduled Castes and 1

Scheduled Tribes candidates having secured

more than the last general candidate, were

selected against general vacancies.

15

3.OBC (male) for the post of Sub Inspectors 168

4.OBC (female) for the post of Sub Inspectors9

5.SC (male) for the post of Sub Inspectors 25

6.SC (female) for the post of Sub Inspectors 1

7.ST (male) for the post of Sub Inspectors 3

8.General (male) Platoon Commander in PAC 125

9.All the petitioners-appellants who applied pursuant to the

aforesaid advertisement had participated in the entire selection

process. However, the names did not figure in the merit list of the

selected candidates.

10.The selection was challenged in a number of writ petitions by

candidates who were not included in the select list. According to

the High Court, the selection was challenged on the following

grounds:-

1.The selection has been made by adopting pick and

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choose method.

2.More than 600 posts are still vacant yet the

petitioners have not been declared successful.

3.There was no guideline or criteria for interview.

4.The number of candidates appeared for main

examination and interview being less than the total

number of vacancies, therefore, the petitioner-

appellants could not have been unsuccessful.

5.Several candidates having inferior educational record

have been declared successful.

6.Certain persons having Roll Nos.0492198, 520570,

0492263, 760146, 480612, 492353, 7706166,

790658, 790519 and 790035 did not find place in the

result after main examination yet have been shown as

selected finally in the final merit list which shows

serious irregularities and bungling in the selection.

7.Keeping large number of vacancies unfilled although

successful candidates are available is a motive for

extracting illegal demand.

11. The writ petitions were opposed by the State Government by

filing a detailed counter-affidavit in Writ Petition No.26177 of 2001.

The aforesaid counter-affidavit was said to have been read on behalf

of the State in all the cases. It was explained by the State

7

Government that in response to the advertisement, total 53780

application forms were received. It was further explained that 1178

candidates had qualified in the main written test who appeared in

the interview which was held between 18.6.2001 to 1.7.2001. It

was further explained that vide Government order dated 3.2.1999,

2956 posts of SICP were sanctioned, out of which 50% posts were

to be filled by direct recruit and 50% posts by promotion.

Therefore, 1478 posts came to be filled in by direct recruit. Since

99 posts were filled under the Category of “Dying in Harness” Rules,

only 1379 posts remained to be filled. Separate selection was to be

held on the 2% vacancies reserved for Sportspersons through a

separate advertisement. Therefore, as a matter of fact, actual

recruitment was made i.e. only for 1350 posts of SICP and 255

posts of PC. The break-up of the posts was as indicated above.

12.Upon consideration of the entire matter, Ashok Bhusan, J.

delivered common judgment dated 22.5.2002 in CMWP No.25328

of 2001 (Narendra Partap Singh vs. Director General of Police, UP

and others). All the writ petitions were disposed of with the

following observations:-

8

“In view of the foregoing discussions none of the

contentions of the petitioner can be accepted except

the contention regarding 2% reservation for sports

men. Relief claimed by the petitioner cannot be

granted except the direction to the respondents to

recalculate the number of posts of general category

candidates by applying 2% reservation for sports

men horizontally and adding 2% posts of sports men

also while calculating the total number of vacancies

of general category candidates. If after applying 2%

reservation horizontally any post in general category

candidates quota remains vacant the same shall be

filled up by the general category candidates next in

merit. It is, however, made clear that by the said

exercise the selection already made will not be

affected in any manner.

All the writ petitions are disposed of with the aforesaid

directions”

13.This judgment was subsequently followed in the separate

judgments delivered by R.K.Agarwal, J. and Sunil Ambwani, J. All

the three judgments were challenged in appeals before the Division

Bench, which have been decided by the common judgment dated

22.12.2006.

14. The Division Bench noticed the submissions made by the

learned counsel for the parties in detail and formulated seven

issues which arose in the appeals. The issues were as under:-

“1.What is the extent of selection of a

reserve category candidate against unreserved

9

seats and in what circumstances he can be

considered against unreserved vacancies

besides reserve seats. The relevant factors,

shades and nuisances for such adjustment

also need to be identified, if any.

2.Whether Section 3 (6) of Act of 1994

would apply where a candidate of reserve

category though has availed relaxation meant

for reserve category candidates namely fee and

age but in all other respect, in the selection

test, has completed with general category

candidates and has secured more marks than

the last selected general category candidate. In

other words whether relaxation in age and fee

would deprive and outsource him from

competing against an unreserved seat in an

open competition with general candidates.

3.Whether selection of reserve category

candidates against reserved and unreserved

constituting more than 50% is

unconstitutional or otherwise contrary to law.

4.Whether reservation of seats for women

is violative of Article 16(2) of the Constitution

of India.

5.Whether seats reserved for women can be

carried forward in case suitable candidates

are not available or the reservation being

horizontal and applicable to all categories, the

unfilled vacancies are to be filled by suitable

male candidates.

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6.Whether keeping 2% sports quota

separate from the selection in question is

illegal.

7.Whether selection in question is

otherwise vitiated on account of any alleged

irregularity or bungling.

15. The Division Bench noticed the historical background in

which the provisions with regard to reservation came to be

incorporated in the Constitution of India. The Division Bench also

noticed the entire history with regard to the various government

orders making reservation for different categories. The Division

Bench notices that the matter of reservation has been dealt in detail

by this Court in numerous cases. Therefore, the Division Bench

has confined itself to the problem as, faced and countered, in the

State of U.P; particularly with reference to the category of the

candidates belonging to ‘O.B.Cs.’ The Division Bench also noticed

the statutory provisions contained in the U.P. Public Services

(Reservation for Scheduled Castes and Scheduled Tribes) Act, 1994

(hereinafter referred to as “the Act of 1994”). The High Court

considered issues no.1, 2 and 3 together.

11

16.The Division Bench has concluded that the various

Government orders and the Act of 1994 provide reservation in State

services with the intent to achieve the goal of adequate

representation of Backward Classes of Citizens in service. It notices

that reservation under Article 16(4) has to be made keeping in view

the provisions contained in Article 14, 16(1) and 335 of the

Constitution of India. It is also held that there are various modes

and methods of providing reservation. The extent and nature of

reservation is a matter for the State to decide considering the facts

and requirements of each case. In this case the Legislature has

empowered the State to extend concessions limited to fee and age to

OBCs, besides keeping reservation of seats to the extent of 27%.

The prime objective, obviously, is to provide adequate

representation to these classes, which in the opinion of the

Legislature are not adequately represented in the services under the

State. The Division Bench also concluded that the State

Government has not conducted any indepth study to find out as to

whether adequate representation has been given to any particular

Backward Classes as a result of successive provisions for

reservation. Therefore, a direction has been given to the State

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Government of U.P. to undertake an indepth study to find out the

representation of various Backward Citizens in Public service and to

find out whether any Backward Class citizens have achieved the

constitutional goal of adequate representation in service or not.

Thereafter, the Government is to review the policy in the light of

facts, figures and information received pursuant to such study. The

exercise is to be undertaken by the State Government within six

months and a compliance report is to be submitted to the Court.

17.With regard to the manner, mechanism and inter-relationship

of various concessions and reservations, the Division Bench

observed that it is permissible for the State to provide concessions

to achieve the goal under Article 16(4) without keeping the seats

reserved for any backward class of citizens. When certain seats are

reserved, it would not result in making unreserved seats

compartmentalized for General Category candidates i.e. unreserved

candidates. There is no reservation for General Category

Candidates. It is also held that a reserved category candidate, in

addition to the reserved seats, can always compete for unreserved

seat. The Division Bench has further held that the reserved

category candidate can also compete against the unreserved seats

13

under a criteria which is uniformly applicable to all the candidates.

In case the selection criteria is lowered for the reserved category

candidate, then such difference in standard or criteria would

disentitle the reserved category candidate to compete in the general

category. After analyzing the law laid down by this Court in

numerous judgments, the Division Bench has concluded that the

conflicting claims of individuals under Article 16(1) and the

preferential treatment given to a backward class under Article 16(4)

of the Constitution has to be balanced, objectively. The Division

Bench then considered as to whether the concession or relaxation

in the matter of fee and age would deprive a reserved candidate of

his right to be considered against an unreserved seat. Can it be said

that such a candidate is not a person who has competed with the

general category in an open competition. It is noticed that under

GOs (Government Orders) dated 11.04.1991, 19.12.1991 and

16.04.1992 and the clarification dated 19

th

October, 1992, it was

provided that a reserved category candidate cannot compete with

the open category candidate(s) after availing preferences which

result in lowering of the prescribed standards. Such a candidate

would only be considered against seat/post for the reserved

14

category. However, after the promulgation of the 1994 Act and

issuance of the Instructions dated 25

th

of March, 1994, the State

Government has not treated relaxation in age and fee as relaxation

in the standard of selection. Therefore, even if a candidate has

availed concession in fee and or age limit, it cannot be treated to be

a relaxation in standard of selection. Therefore, it would not deny a

reserved category candidate selection in Open Competition with

General Category candidates. Such concessions can be granted by

the State under Section 8(1) of the Act. The Division Bench has

also held that a relaxation in age and concession in fee are

provisions pertaining to eligibility of a candidate to find out as to

whether he can appear in a competitive test or not and by itself do

not provide any indicia of open competition. The competition would

start only at a stage when all the persons who fulfill all the requisite

eligibility qualification, age etc. are short listed. The candidates in

the zone of consideration entering the list on the basis of aforesaid

qualifications would thereafter participate in competition and open

competition would commence therefrom. Therefore, concession

granted under Section 8 would not disentitle a reserved category

candidate of the benefit under Section 3 sub-Section (6).

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18. In view of the above legal position, it has been held that if a

reserved category candidate has secured marks more than the last

General Category candidate, he is entitled to be selected against the

unreserved seat without being adjusted against the reserved seat.

According to the Division Bench, merely because 183 candidates,

belonging to the reserved category, have been successful against

unreserved seats would not result in reverse discrimination, as

apprehended by the petitioners. This is particularly so as selection

of such reserved category candidate against the unreserved seats

would not be material for the purpose of applying the principle of

reservation being limited to a total of 50%.

19.The Division Bench has also held that the reservation in

favour of women is constitutionally permissible and is valid. On

issue No.5 it has been held that in view of the GO dated 26.02.1999

(para 4), the 52 vacancies of general category kept reserved for

women candidates have been illegally carried forward for the next

selection instead of filling in from the general category male

candidates. However, since the posts remained vacant, the same

had to be filled from the general category male candidates and

could not be carried forward.

16

20.Reservation in favour of sportspersons quota (2%) has also

been upheld. It was held that the aforesaid reservation has to

operate horizontally, therefore, the 29 vacancies which remained

unfilled could not have been carried forward. The observations

made by the Single Judge on this issue have been approved. A

direction has been issued as follows:-

“We direct the respondent-authorities to fill in the

unfilled vacancies reserved for women candidates

and sportsmen from suitable candidates of

respective category on the basis of merit list and

send them for training and provide all other benefits,

if any as per rules. However, we may add here,

since the respondents did not hold recruitment for

sports persons in the present selection and we are

informed that a separate selection was held,

therefore, we provide that the vacancies remain

unfilled from the separate selection held for

sportsmen against 29 vacancies separated from the

impugned selection, only those remaining vacancies

shall be made available to the respective candidates

of this selection.”

21. The aforesaid findings of the Division Bench have been

challenged in these appeals by the unsuccessful candidates as well

as the State of U.P.

22.We have heard learned counsel for the parties.

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23.Mr. L.N. Rao, learned Sr. Counsel appearing on behalf of the

appellants submitted that the cardinal issue raised in these appeals

is whether the reserved category candidates who had taken the

benefit of age or fee relaxation, are entitled to be counted as

general category candidates. According to the learned Sr.Counsel,

the Division Bench has erred in law in concluding that relaxation in

age and fee cannot be treated to be relaxation in standard of

selection and shall not deny a reserved category candidate's

selection in Open Competition with General Category candidate.

According to learned Sr. Counsel, the benefit of reservation under

Article 16(4) of the Constitution of India is a group right whereas

under Article 16 (1) of the Constitution of India, it is an individual

right. It is emphasized that reservation under Article 16(4) of the

Constitution of India will take into its fold concessions. Once a

candidate falls within the reserved category, he/she can only exit

the Group i.e. from the benefit of Article 16(4) of the Constitution

of India to Article 16(1) of the Constitution of India on fulfillment of

two circumstances, namely, (a) imposition of a creamy layer and (b)

merit selection. That is where there is a level playing field in respect

of the selection process, without any benefit under Article 16(4) of

18

the Constitution of India. According to the learned Sr. Counsel, a

level playing field would be of candidates who have not availed of

any concessions or relaxation. All things have to be equal for all the

candidates.

24.According to learned Sr. Counsel, there is a distinction

between relaxation and concession which pertain to a particular

selection process and mere support mechanism (such as General

Coaching) independent of a criteria for a particular selection.

25.According to the learned Sr. Counsel, selection process would

include all stages. There can be no distinction that relaxation in age

and fee can be treated as provisions pertaining to eligibility i.e. to

bring a candidate within the zone of consideration. According to the

learned Sr. Counsel, it is hair splitting to divide the selection

process into further parts. Each undermines the concept of “level

playing field”. Learned Sr. Counsel further submitted that the

Division Bench has misinterpreted Section 3 of the Act of 1994. It

has to be read as a whole. Section 8 is in nature of exception to

Section 3 (6), because it creates a non-level playing field.

26.In order to emphasize that reservation under Article 16 (4) of

the Constitution of India is a group right, and includes preferences,

19

concessions and exemptions, Mr. L.N. Rao relied on certain

observations of this Court made in the case of Indra Sawhney and

others vs. Union of India and others, 1992 Supp (3) Supreme

Court Cases 217. According to him, the fact that only age and fee

relaxations were given does not take the reserved category

candidates out of the group category. He has also relied on the

judgment rendered in the case of Post Graduate Institute of

Medical Education & Research, Chandigarh and others vs.

K.L.Narsimhan and another, 1997 (6) SCC 283 in support of the

submission that once a candidate takes advantage of relaxation in

the eligibility criteria, he/she has to be treated as a reserved

category candidate.

27.With regard to the interpretation to be placed on the Act of

1994, Mr. L.N.Rao submitted that Section 3 preserves the definition

of the group throughout. According to him, Sections 3 (6) and

Section 8 are to be read together in the following way i.e. in Section

3(6), the term “gets selected on the basis of merit in an open

competition” denotes a level playing field in Open Competition

permitting exit from the group into the merit category. Section 8

lowers the level playing field “for any competitive examination” and

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clubs three categories together- (a) fees, (b) interview and (c ) age

limit. According to the learned Sr. Counsel, the invocation of

Section 8 wholly excludes the operation of Section 3 (6) to which

Section 8 is an exception. He further submitted that relaxation and

concessions may be of various kinds. Each is a part of Article 16 (4)

of the Constitution of India and could have egalitarian

consequences. In support of the submissions, reliance is placed on

observations of this Court made in paragraph 743 in the case of

Indra Sawhney (supra). According to the learned Sr. Counsel,

there is a distinction between social support mechanisms prior to

an examination, (which are also a part of Article 16 (4) of the

Constitution of India) and the relaxations/concessions which relate

to the selection process itself. According to the learned Sr. Counsel,

supplemental and ancillary provisions to ensure full availment of

provisions for reservation would be a part of reservation under

Article 16 (4) of the Constitution of India. He submitted that the

selection process has to be seen as a whole. It cannot be split up

into different parts. Section 8 is an exception to Section 3(6). In

view of the above, according to the learned Sr. Counsel, the Division

Bench has erroneously held that in view of Section 8 of the Act of

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1994, reserved category candidates can be permitted to compete

with the General Category candidates. Learned Sr. Counsel has

also submitted that the learned Single Judge has wrongly

distinguished the judgment in the case of K.L.Narsimhan (supra)

on the basis that it was over-ruled by a larger five Judges Bench in

the case of Post Graduate Institute of Medical Education &

Research, Chandigarh vs. Faculty Association and others,

(1998) 4 SCC 1. The aforesaid judgment was over-ruled only on

one particular point raised in the review application. The

aforesaid judgment had decided three appeals in a common

judgment. Review was filed only in one. Therefore, the judgment in

other cases is not over-ruled. It has in fact been subsequently

referred to in Dr.Preeti Srivastava and Anr. V. State of M.P. and

Ors., 1999(7) SCC 120, Bharati Vidyapeeth and Ors v. State of

Maharashtra and Anr., 2004 (11) SCC 755 and State of Madhya

Pradesh and Ors. V. Gopal D.Tirpathi and Ors., 2003 (7) SCC 83.

Therefore, according to Mr. L.N.Rao, the reasoning given therein is

still relevant. Learned Sr. Counsel then relied on the judgment in

the case of Union of India and another v. Satya Prakash and

others, JT 2006 (4) SC 524, in support of the submission that

22

only a candidate who has been selected without taking advantage of

any relaxation/concession can be adjusted against a seat meant

for General Category Candidate. Learned Sr. Counsel then

submitted that the vacancies which are reserved for Women

candidates remained unfilled, and therefore, ought to have been

filled from the men candidates belonging to the General Category.

Even these vacancies have been illegally carried forward. The

reservation in favour of women is referable to Article 15 (3) of the

Constitution of India and not Article 16 (4) of the Constitution of

India. Therefore, it is horizontal reservation in which carry forward

rule would not be applicable. Even with the carry forward rule

which is applicable only to vertical reservations, 50% cap as

approved in Indra Sawhney case (supra) cannot be permitted to

be breached.

28. In fact in the present case, the reserved category candidates

have occupied one third of the posts meant for the General

Category. If the argument of the State is accepted in addition to the

quota of 50% (with carry forward), another 183 out of 1014 (18%)

would be added. Learned Sr. Counsel reiterated that the purpose

of reservation is not to distribute largesse, but to create

23

empowerment among the disadvantaged. The test is, therefore,

“adequacy”, not mechanical over-empowerment, which must be

constantly maintained. Learned Sr. Counsel also emphasized that

the provisions contained in Article 16 (4) (a) and (b) of the

Constitution of India are all enabling provisions and subject to (a)

creamy layer, (b) 50% cap (c ) compelling reasons and (d)

proportionality. In the present case, the State has failed to give any

details with regard to adequacy of representation. Finally, learned

Sr. Counsel submitted that reservation in favour of women is even

otherwise violative of Article 16 (2) of the Constitution of India.

29.On the other hand, Mr. Dwivedi, learned Senior counsel

appearing on behalf of the respondents submitted that in fact no

cause of action has arisen in favour of the appellants. All of them

are qualified candidates who did not make it to the final select list

on the basis of comparative merit. He then submitted that in fact

the selected candidates who are likely to be affected, have not been

made parties. It has also been submitted that in any case, no relief

can be granted to the appellants, at this stage as all the posts had

already been filled. Therefore, the submissions made by the

appellants are merely an academic exercise. According to him, the

24

Division Bench has correctly interpreted Section 3 of the Act of

1994. He further submits, by the suggested interpretation, the

appellants seek to add the words from Section 8 to sub-section (6)

of Section 3. There is no relaxation in the qualifications. The

concession is only in the matter of fee and the age which pertains

only to eligibility of a candidate to apply for the post. The criteria for

selection for all the candidates is identical, which has not been

lowered, by the concessions/relaxations in fee and age. Under

Section 3(6), the candidate even though belonging to a reserved

category is entitled to be treated as a General Category Candidate.

According to Mr. Dwivedi, the Division Bench has correctly observed

that taking advantage of fee concession or age relaxation would not

be a bar for the reserved category candidates to be treated as

general category candidates. They can be taken out of General

Category only as an exception i.e. if their standard is lowered. On

the other hand, if by relaxation, the reserved category candidate

gets no advantage, he cannot be compartmentalized. The judgment

relied upon by the appellants in K.L.Narsimhan (supra) has been

over-ruled in the subsequent judgment of this Court in the case of

Faculty Association (supra). Once the judgment is over-ruled, it

25

cannot be argued that it is only partly over-ruled. Learned Senior

counsel also submitted that the particular sentence relied upon by

learned Sr. Counsel appearing on behalf of the appellants in the

case of K.L.Narsimhan (supra) is a stray observation and cannot

be treated as an authoritative pronouncement or a precedent. In

any event, according to him, in the case of K.L.Narsimhan (supra),

the issue of relaxation in age or fee was not considered. In the case

of Satya Prakash (supra), it has been clearly held that

candidates who have been recommended without resorting to the

relaxed standard shall not be adjusted against the vacancies

reserved for Scheduled Castes, Scheduled Tribes and Other

Backward Classes. According to the learned Senior counsel, even

Indra Sawhney case (supra) only lays down the meaning of

“Reservation” in terms of Article 16 (4) of the Constitution of India.

30.SLP (C ) Nos.14078-80 of 2008 have been filed by the State of

U.P. challenging the common final judgment of the Division Bench

dated 22.12.2006 and the final order dated 18.12.2007 declining to

modify or recall the earlier judgment dated 22.12.2006. In support

of the appeals, Mr. Dinesh Dwivedi, learned Sr. Counsel submitted

that the learned Single Judge of the High Court had taken notice of

26

the fact that total posts of SICP were 1231 (male) + 148 (female).

2% posts were reserved for sports persons. Therefore, 29 posts of

SICP and 5 posts of PC were earmarked for Sports Quota. Since 608

male candidates belonging to the General Category were selected,

67 posts of General category were available for women. However,

only 15 candidates had been selected. Therefore, 52 posts were

filled up on merit from male candidates in accordance with the

Government Order dated 26.2.1999. Therefore, it was noticed by

the learned Single Judge that no post in General Category was

vacant. Having come to the aforesaid conclusion, the learned Single

Judge had wrongly issued the directions in the final paragraph of

the judgment to recalculate the number of posts of General

Category candidates by applying 2% reservation for Sportsmen

horizontally and adding 2% posts of sportsmen also while

calculating the total number of vacancies of General Category

candidates. This direction had been challenged by the State and

the Director General of Police in Special Appeal Nos.910 of 2005

and 592 of 2006. In spite of the aforesaid categoric finding of the

learned Single Judge, that there were no vacant posts, the Division

Bench concluded that the vacancies which were left unfilled were

27

carried forward for next selection, instead of filling in from the

General Category of male candidates. In fact Government Order

dated 26.2.1999 was fully complied with. According to the learned

Sr. Counsel, the direction issued by the Division Bench to fill up the

unfilled vacancies reserved for women candidates and sportsmen

from suitable candidates of respective categories has been issued

without taking into account that all the vacant posts have been

filled, in accordance with the Government Order. The Division

Bench has failed to appreciate that no unfilled posts reserved for

women and the Sportsmen quota have been carried forward.

31.Dr. Rajeev Dhawan, learned Sr. Counsel reiterated the

submissions made by Mr.L.N. Rao. According Dr.Dhawan the

judgment in the case of K.L.Narsimhan (supra) has only been

partly over-ruled in one case. The aforesaid judgement had decided

three appeals by a common judgement, therefore, the reasoning of

the judgment is still intact and would be applicable to the facts and

circumstances of the present case. Since the reserved category

candidates have been given relaxation in the age and the fee, the

same would fall within the group right of reservation under Article

16 (4) of the Constitution of India. Learned Sr. Counsel reiterated

28

that once a candidate takes advantage of reservation/concessions

under Article 16 (4) of the Constitution of India, he/she cannot be

permitted to be appointed against the seat meant for the General

Category. According to the learned Sr. counsel, all parts of Section

3 of the Act of 1994 talk of group rights. There cannot be an exit

from reservation, once a benefit is taken. In other words, a

candidate covered under Article 16 (4) of the Constitution of India

cannot also be a candidate under Article 16 (1) of the Constitution

of India.

32.We have considered the submissions made by the learned

counsel for the parties.

33.The core issue in the writ petitions was with regard to filling

up the General Category posts by candidates belonging to the

reserved category candidates on their obtaining more marks than

the last candidate in the General Category. The submissions made

by the learned counsel for the appellants are all over-lapping.

Reference to case law is also common. In our opinion, it is not

necessary to consider the larger issues raised by the learned

counsel for the parties with regard to the nature and extent of

reservation. These issues have been dilated upon by this Court in

29

numerous judgments. The Division Bench in the impugned

judgment has traced the history of reservation at considerable

length. It has also distinguished between vertical and horizontal

reservations. It has also correctly concluded that in case of

horizontal reservation, the carry forward rule would not be

applicable. All these issues are no longer res integra, in view of the

authoritative judgment rendered in the case of Indra Sawhney

(supra). It can also be no longer disputed that reservation under

Article 16 (4) of the Constitution of India aims at group

backwardness. It provides for group right. Article 16 (1) of the

Constitution of India guarantees equality of opportunity to all

citizens in matters relating to employment. However, in

implementing the reservation policy, the State has to strike a

balance between the competing claims of the individual under

Article 16(1) and the reserved categories falling within Article 16(4).

A Constitution Bench of this Court in the case of Indra Sawhney

case (supra), this Court reiterated the need to balance the

Fundamental Right of the individual under Article 16(1) against the

interest and claim of the reserve category candidates under Article

16(4) of the Constitution.

30

“It needs no emphasis to say that the principal

aim of Article 14 and 16 is equality and

equality of opportunity and that Clause (4) of

Article 16 is but a means of achieving the very

same objective. Clause (4) is a special provision

– though not an exception to Clause (1). Both

the provision have to be harmonized keeping in

mind the fact that both are but the restatements

of the principle of equality enshrined in Article

14. The provision under Article 16(4) –

conceived in the interest of certain sections of

society – should be balanced against the

guarantee of equality enshrined in Clause (1) of

Article 16 which is a guarantee held out to

every citizen and to the entire society. If is

relevant to point out that Dr. Ambedkar himself

contemplated reservation being “confined to a

minority of seats” (see his speech in Constituent

Assembly, set out in para 28). No. other

member of the Constituent Assembly suggested

otherwise. It is thus, clear that reservation of a

majority of seats were never envisaged by the

found Fathers. Nor are we satisfied that the

present context requires us to depart from that

concept.”

34.In PGI MER vs. Faculty Association (supra in para 32 the

same principle was reiterated as under:-

“32. Article 14, 15 and 16 including Articles

16(4), 16(4-A) must be applied in such a

manner so that the balance is struck in the

matter of appointments by creating reasonable

opportunities for the reserved classes and also

for the other members of the community who do

not belong to reserved classes. Such view has

been indicated in the Constitution Bench

decisions of this Court in Balaji case,

31

Devendasan case and Sabharwal case. Even in

Indra Sawhney case the same view has been

held by indicating that only a limited

reservation not exceeding 50% is permissible. It

is to be appreciated that Article 15(4) is an

enabling provision like Article 16(4) and the

reservation under either provision should not

exceed legitimate limits. In making reservations

for the backward classes, the State cannot

ignore the fundamental rights of the rest of the

citizens. The special provision under Article

15(4 [sic 16(4)] must therefore strike a balance

between several relevant considerations and

proceed objectively. In this connection reference

may be made to the decisions of this Court in

State of AP vs. USV Balram and A Rajendran v.

Union of India, it has been indicated in Indra

Sawhney case that Clause (4) of Article 16 is

not in the nature of an exception to Clauses (1)

and (2) of Article 16 but an instance of

classification permitted by Clause (1). It has

also been indicated in the said decision that

Clause (4) of Article 16 does not cover the entire

field covered by Clauses (1) and (2) of Article

16. In Indra Sawhney case this Court has also

indicated that in the interests of the Backward

clauses of citizens, the State cannot reserve all

the appointments under the State or even a

majority of them. The doctrine of equality of

opportunity in Clause (1) of Article 16 is to be

reconciled in favour of backward clauses under

Clause (4) of Article 16 in such a manner that

the latter while serving the cause of backward

classes shall not unreasonably encroach upon

the field of equality.”

35.These observations make it abundantly clear that the

reservations should not be so excessive as to render the

32

Fundamental Right under Article 16(1) of the Constitution

meaningless. In Indra Sawhney (supra), this Court has observed

as under:-

“In our opinion, however, the result of

application of carry-forward rule, in whatever

manner it is operated, shall not result in breach

of 50% rule.”

36. Therefore, utmost care has to be taken that the 50% maximum

limit placed on reservation in any particular year by this Court in

Indra Sawhney case (supra) must be maintained. It must further

be ensured that in making reservations for the members of the

Scheduled Castes and Scheduled Tribes, the maintenance of the

efficiency of administration is not impaired.

37.It is in this context, we have to examine the issue as to

whether the relaxation in fee and upper age limit of five years in the

category of OBC candidates would fall within the definition of

“reservation” to exclude the candidates from open competition on

the seats meant for the General Category Candidates. Taking note

of the submissions, the Division Bench has concluded by

considering questions 1, 2 and 3 that concession in respect of age,

fee etc. are provisions pertaining to eligibility of a candidate to find

33

out as to whether he can appear in the competitive test or not and

by itself do not provide any indicia of open competition. According

to the Division Bench, the competition would start only at the stage

when all the persons who fulfill the requisite eligibility conditions,

namely, qualification, age etc. are short-listed. We are of the opinion

that the conclusion reached by the Division Bench on the issue of

concessions and relaxations cannot be said to be erroneous.

38.The selection procedure provided the minimum age for

recruitment as 21 years and the maximum age of 25 years on the

cut off date. Relaxation of age for various categories of candidates in

accordance with the Government Orders issued from time to time

was also admissible. This included five years’ relaxation in age to

Scheduled Caste, Scheduled Tribes, Other Backward Classes and

dependents of Freedom Fighters. Relaxation of age was also

provided in case of Ex-servicemen. The period of service rendered

in Army would be reduced for computing the age of the Ex-Army

personnel. After deducting the period of service they had rendered

in the Army, they would be deemed eligible. These were mere

eligibility conditions for being permitted to participate in the

selection process. Thereafter, the candidates had to appear in a

34

Preliminary Written Test. This consisted of 300 maximum marks

and the candidates were required to secure 50% or more marks to

participate in the further selection process. Thereafter, the

candidates had to undergo physical test consisting of 100 marks.

Again a candidate was required to secure at least 50% or more

marks. It is not disputed before us that the standard of selection in

the Preliminary Written Test and the Physical Test was common to

all the candidates. In other words, the standard was not lowered in

case of the candidates belonging to the reserved category. The

Preliminary Written Test and the Physical Test were in the nature of

qualifying examinations to appear in the Main Written Test. The

marks obtained in the Preliminary Written Examination and the

Physical Test were not to be included for determination of final

merits. It was only candidates who qualified in the preliminary

written test and the physical test that became eligible to appear in

the main written test which consisted of 600 marks. As noticed

earlier, this had two papers- General Hindi, General Knowledge and

Mental Aptitude Test. A candidate who secured 40% or above

would be declared successful in the written test. Thereafter, the

candidates were to appear for interview of 75 marks. The final merit

35

list would be prepared on the basis of merit secured in the main

written test and the interview. Candidates appearing in the merit

list, so prepared, would be declared selected. It is common ground

that more than 50000 candidates appeared in the preliminary

written test. Upon declaration of the result on 22.9.2000, only

3,325 candidates were found successful. Thereafter, the physical

test which was conducted from 29.10.2000 to 6.11.2000 reduced

the successful candidates to 1454. It was these 1454 candidates

who sat in the main written test held on 29.4.2001. Upon

declaration of result, 1178 candidates were declared successful.

The candidates who were successful in the written test were

subjected to an interview between 18.6.2001 to 1.7.2001. The final

result published on 6.7.2001 declared only 1006 candidates

successful.

39. In view of the aforesaid facts, we are of the considered opinion

that the submissions of the appellants that relaxation in fee

or age would deprive the candidates belonging to the reserved

category of an opportunity to compete against the General Category

Candidates is without any foundation. It is to be noticed that the

reserved category candidates have not been given any advantage in

the selection process. All the candidates had to appear in the

same written test and face the same interview. It is therefore quite

apparent that the concession in fee and age relaxation only enabled

36

certain candidates belonging to the reserved category to fall within

the zone of consideration. The concession in age did not in any

manner tilt the balance in favour of the reserved category

candidates, in the preparation of final merit/select list. It is

permissible for the State in view of Articles 14, 15, 16 and 38 of the

Constitution of India to make suitable provisions in law to eradicate

the disadvantages of candidates belonging to socially and

educationally backward classes. Reservations are a mode to achieve

the equality of opportunity guaranteed under Article 16 (1) of the

Constitution of India. Concessions and relaxations in fee or age

provided to the reserved category candidates to enable them to

compete and seek benefit of reservation, is merely an aid to

reservation. The concessions and relaxations place the candidates

at par with General Category candidates. It is only thereafter the

merit of the candidates is to be determined without any further

concessions in favour of the reserved category candidates. It has

been recognized by this Court in the case of Indra Sawhney (supra)

that larger concept of reservation would include incidental and

ancillary provisions with a view to make the main provision of

reservation effective. In the case of Indra Sawhney (supra), it has

been observed as under:-

“743. The question then arises whether clause (4)

of Article 16 is exhaustive of the topic of

reservations in favour of backward classes. Before

we answer this question, it is well to examine the

meaning and content of the expression

“reservation”. Its meaning has to be ascertained

having regard to the context in which it occurs.

37

The relevant words are “any provision for the

reservation of appointments or posts”. The

question is whether the said words contemplate

only one form of provision namely reservation

simplicitor, or do they take in other forms of

special provisions like preferences, concessions

and exemptions. In our opinion, reservation is the

highest form of special provision, while preference,

concession and exemption are lesser forms. The

constitutional scheme and context of Article 16 (4)

induces us to take the view that larger concept of

reservations takes within its sweep all

supplemental and ancillary provisions and

relaxations, consistent no doubt with the

requirement of maintenance of efficiency of

administration—the admonition of Article 335. The

several concessions, exemptions and other

measures issued by the Railway Administration

and noticed in Karamchari Sangh are instances

of supplementary, incidental and ancillary

provisions made with a view to make the main

provision of reservation effective i.e., to ensure

that the members of the reserved class fully avail

of the provision for reservation in their favour.….”

40. In our opinion, these observations are a complete answer to

the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on

behalf of the petitioners.

41.We are further of the considered opinion that the reliance

placed by Mr.Rao and Dr.Dhawan on the case of K.L.Narsimhan

(supra) is misplaced. Learned Sr. Counsel had relied on the

following observations:-

38

“5......Only one who does get admission or

appointment by virtue of relaxation of

eligibility criteria should be treated as

reserved candidate.”

41. The aforesaid lines cannot be read divorced from the entire

paragraph which is as under:-

“5.It was decided that no relaxation in

respect of qualifications or experience would

be recommended by Scrutiny Committee for

any of the applicants including candidates

belonging to Dalits and Tribes. In furtherance

thereof, the faculty posts would be reserved

without mentioning the specialty; if the Dalit

and Tribe candidates were available and

found suitable, they would be treated as

reserved candidates. If no Dalit and Tribe

candidate was found available, the post

would be filled from general candidates;

otherwise the reserved post would be carried

forward to the next year/advertisement. It is

settled law that if a Dalit or Tribe candidate

gets selected for admission to a course or

appointment to a post on the basis of merit

as general candidate, he should not be

treated as reserved candidate. Only one who

does get admission or appointment by virtue

of relaxation of eligibility criteria should be

treated as reserved candidate.”

42.These observations make it clear that if a reserved category

candidate gets selected on the basis of merit, he cannot be treated

as a reserved candidate. In the present case, the concessions

39

availed of by the reserved category candidates in age relaxation and

fee concession had no relevance to the determination of the inter se

merit on the basis of the final written test and interview. The ratio

of the aforesaid judgment in fact permits reserved category

candidates to be included in the General Category Candidates on

the basis of merit.

43.Even otherwise, merely quoting the isolated observations in a

judgment cannot be treated as a precedent de hors the facts and

circumstances in which the aforesaid observation was made.

Considering a similar proposition in the case of Union of India &

Ors. vs. Dhanwanti Devi and others, 1996(6) SCC 44, this Court

observed as follows:-

"9......... It is not everything said by a Judge

while giving judgment that constitutes a

precedent. The only thing in a Judge's decision

binding a party is the principle upon which the

case is decided and for this reason it is

important to analyse a decision and isolate

from it the ratio decidendi. A decision is only an

authority for what it actually decides. What is

of the essence in a decision is its ratio and not

every observation found therein nor what

logically follows from the various observations

made in the judgment. It would, therefore, be

not profitable to extract a sentence here and

there from the judgment and to build upon it

because the essence of the decision is its ratio

40

and not every observation found therein. It is

only the principle laid down in the judgment

that is binding law under Article 141 of the

Constitution."

44. In the case of State of Orissa & Ors. vs. Md. Illiyas reported

in 2006(1) SCC 275, the Supreme Court reiterates the law, as

follows:-

"12............. Reliance on the decision without

looking into the factual background of the case

before it, is clearly impermissible. A decision is

a precedent on its own facts. Each case

presents its own features. It is not everything

said by a Judge while giving judgment that

constitutes a precedent. A decision is an

authority for what it actually decides. What is

of the essence in a decision is its ratio and not

every observation found therein nor what

logically flows from the various observations

made in the judgment. The enunciation of the

reason or principle on which a question before a

court has been decided is alone binding as a

precedent.

A case is a precedent and binding for what it

explicitly decides and no more. The words used

by Judges in their judgments are not to be read

as if they are words in an Act of Parliament."

45.We may now examine the ratio in Narasimhan case (supra)

keeping in view the aforesaid principles. On 16.11.1990 an

advertisement was issued by Post Graduate Institute of Medical

Education and Research (hereinafter referred to as ‘PGI’) relating to

41

recruitment to the post of Assistant Professor; out of 12 posts, 8

was reserved for Scheduled Caste and 4 posts were reserved for

Scheduled Tribes. Since all the available posts were sought to be

filled on the basis of reservation, the same were challenged in two

writ petitions in the Punjab and Haryana High Court, Chandigarh.

Both the writ petitions were allowed by the learned Single Judge. It

was held that the post of Assistant Professor in various disciplines

is a single post cadre; reservation for Scheduled Caste and

Scheduled Tribes would amount to 100% reservation; accordingly,

it is unconstitutional. The said writ petition pertained to admission

to Doctoral courses and Ph.D. programme. This was also allowed

by the learned Single Judge on the ground that admission to the

aforesaid courses on the basis of reservation, undermines efficiency

and is detrimental to excellence, rendering it unconstitutional.

Appeals against the judgements of the learned Single Judge were

dismissed by the High Court. Therefore, three appeals had been

filed in this Court. Two issues involved therein were (a) whether

reservation in appointment to the post of Assistant Professors in

various disciplines in the PGI is violative of Article 14 and 16(1) of

the Constitution of India; and (b) whether there could be reservation

42

in admission to the Doctoral courses and Ph.D. programmes. A

number of posts of Assistant Professor in diverse disciplines had

been advertised. It was not in dispute that the post of Assistant

Professor in each Department was a single post cadre, but carried

the same scale of pay and grade in all disciplines. It was also not

disputed that the posts in different specialties/super-specialties

prescribed distinct and different qualifications. The posts were also

not transferable from one specialty to another, however, the PGI

had clubbed all the posts of Assistant Professor for the purpose of

reservation in view of the fact that they are in the same pay scale

and have same designation. The High Court had allowed the writ

petition by relying on judgement of this Court in Chakradhar

Paswan (Dr.) vs. State of Bihar (1998) 2 SCC 214. The ratio in

the aforesaid judgement was distinguished on the basis of the

judgement in Union of India vs. Madhav, (1997)2 SCC 332. The

aforesaid judgement was reviewed by a larger Bench of five Judges

of this Court in the case of Post Graduate Institute of Medical

Education and Research, Chandigarh vs. Faculty Association

and others (1998) 4 SCC 1. On behalf of the review petitioners it

was contended that judgement in Narasimhan case (supra) cannot

43

be supported as in Madhav case (supra) the ratio in the decision of

Arati Ray Chaudhary vs. Union of India 1974 (1) SCC 87 was

wrongly appreciated and the ratio was wrongly stated. On the other

hand, it was submitted by the learned Solicitor General that the

judgement in Madav case (supra) indicated the correct principle by

giving very cogent reasons. Therefore, no interference is called for

against the decision in Madhav case (supra) and the other decisions

rendered by following the decision. Upon consideration of the rival

submissions, it was observed as follows:-

“29. In Madhav case in support of the view that

even in respect of single post cadre reservation

can be made for the backward classes by rotation

of roster, the Constitution Bench decision in Arati

Ray Choudhury case has been relied on. We have

already indicated that in Arati case the

Constitution Bench did not lay down that in single

post cadre, reservation is possible with the aid of

roster point. The Court in Arati case considered

the applicability of roster point in the context of

plurality of posts and in that context the rotation of

roster was upheld by the Constitution Bench. The

Constitution Bench in Arati case had made it quite

clear by relying on the earlier decisions of the

Constitution Bench in Balaji case and Devadasan

case that 100% reservation was not permissible

and in no case reservation beyond 50% could be

made. Even the circular on the basis of which

appointment was made in Arati Ray Choudhury

case was amended in accordance with the

decision in Devadasan case. Therefore, the very

44

premise that the Constitution Bench in Arati case

has upheld reservation in a single post cadre is

erroneous and such erroneous assumption in

Madhav case has been on account of misreading

of the ratio in Arati Ray Choudhury case. It may

be indicated that the latter decision of the

Constitution Bench in R.K. Sabharwal case has

also proceeded on the footing that reservation in

roster can operate provided in the cadre there is

plurality of post. It has also been indicated in

Sabharwal decision that the post in a cadre is

different from vacancies.

46. From the above it becomes evident that the very premise on

the basis of which Madhav case was decided has been held to be

erroneous. Thereafter it is further observed in paragraph 30 that

“it also appears that the decision in Indra Sawhney case has also not

been properly appreciated in Madhav decision.” The conclusion of

the judgement is given in paragraph 37 which is as under:-

“37. We, therefore, approve the view taken in

Chakradhar Case that there cannot be any

reservation in a single post cadre and we do

not approve the reasonings in Madhav Case,

Brij Lal Thakur case and Bageshwari

Prasad case upholding reservation in a single

post cadre either directly or by device of

rotation of roster point. Accordingly, the

impugned decision in the case of Post

Graduate Institute of Medical Education &

Research, Chandigarh is, therefore, allowed

and the judgment dated 2.5.1997 passed in

Civil Appeal No.3175 of 1997 is set aside.”

45

47. Since the judgment and reasoning in Narasimhan case (supra)

were based on the reasoning in Madhav case (supra), we are unable

to accept the submissions of the learned counsel for the appellants

that the reasoning in the aforesaid judgement is still intact, merely

because review was filed only in one appeal out of three. The

judgment in Narasimhan case (supra) having been set aside, we are

unable to accept the submissions of the learned Senior counsel that

the reasoning would still be binding as a precedent.

48.Mere reference to the judgement in the cases of Dr. Preeti

Srivastava; Bharati Vidyapeet; and Gopal D. Tirthani and others

(supra) would not re-validate the reasoning and ratio in

Narasimhan case (supra) which has been specifically set aside by

the larger Bench in Faculty Association case (supra). We are,

therefore, of the opinion that the reliance placed upon the

observations in Narasimhan case (supra) is wholly misconceived.

49.In any event the entire issue in the present appeals need not

be decided on the general principles of law laid down in various

judgments as noticed above. In these matters, we are concerned

with the interpretation of the 1994 Act, the instructions dated

46

25.03.1994 and the GO dated 26.2.1999. The controversy herein

centres around the limited issue as to whether an OBC who has

applied exercising his option as a reserved category candidate, thus,

becoming eligible to be considered against a reserved vacancy, can

also be considered against an unreserved vacancy if he/she secures

more marks than the last candidate in the general category.

50.The State Legislature enacted the UP Public Service

(Reservation for Scheduled Castes and Scheduled Tribes) Act, 1993

(hereinafter referred to as the ‘Act of 1993’). It was soon replaced by

the UP Public Services (Reservation for Scheduled Castes,

Scheduled Tribes and Other Backward Classes) Ordinance, 1994.

This was to provide a comprehensive enactment for Scheduled

Castes, Scheduled Tribes and OBCs. The Ordinance was replaced

by the Act of 1994 which came into force w.e.f. 11.12.1993.

Section 2 (c ) of this Act defines public service and posts as the

service and post in connection with the affairs of the State and

includes services and posts in local authority, cooperative societies,

statutory bodies, government companies, educational institutions

owned and controlled by the State Government. It also includes all

posts in respect of which reservation was applicable by Government

47

Orders on the commencement of the Act. Section 3 of the Act of

1994 makes provisions with regard to the reservation in favour of

Scheduled Castes, Scheduled Tribes and Other Backward Classes.

Section 3 of the Act of 1994 provides as under:-

“3.Reservation in favour of Scheduled Castes, Scheduled

Tribes and Other Backward Classes- (1) In Public

Services and Posts, there shall be reserved at the stage of

direct recruitment, the following percentage of vacancies

to which recruitments are to be made in accordance with

the roster referred to in Sub-section (5) in favour of the

persons belonging to Scheduled Castes, Scheduled Tribes

and Other Backward Classes of citizens.

(a) in the case of Scheduled CastesTwenty-one percent;

(b) in the case of Scheduled TribesTwo per cent;

(c) in the case of other backward Twenty Seven percent;

Classes of citizens

Provided that the reservation under Clause (c ) shall not

apply to the category of other backward classes of

citizens specified in Schedule II.

(2 )If, even in respect of any year of recruitment, any

vacancy reserved for any category of persons under Sub-

section (1) remains unfilled, special recruitment shall be

made for such number of times, not exceeding three, as

48

may be considered necessary to fill such vacancy from

amongst the persons belonging to that category.

(3) If, in the third such recruitment, referred to in Sub-

section (2), suitable candidates belonging to the

Scheduled Tribes are not available to fill the vacancy

reserved for them, such vacancy shall be filled by persons

belonging to the Scheduled Castes.

(4)Where, due to non-availability of suitable candidates

any of the vacancies reserved under Sub-section (1)

remains unfilled even after special recruitment referred to

in Sub-section (2), it may be carried over to the next year

commencing from first of July, in which recruitment is to

be made, subject to the condition that in that year total

reservation of vacancies for all categories of persons

mentioned in Sub-section (1) shall not exceed fifty one

per cent of the total vacancies.

(5)The State Government shall, for applying the

reservation under Sub-section (1), by a notified order,

issue a roster which shall be continuously applied till it

is exhausted.

49

(6)If a person belonging to any of the categories

mentioned in Sub-section (1) gets selected on the basis of

merit in an open competition with general candidates, he

shall not be adjusted against the vacancies reserved for

such category under Sub-section (1).

(7)If on the date of commencement of this Act, reservation

was in force under Government Orders for appointment

to posts to be filled by promotion, such Government

Orders shall continue to be applicable till they are

modified or revoked.”

Section 8 of the Act of 1994 reads as under:-

“8.Concession and relaxation- (1) The State Government

may, in favour of the categories of persons mentioned in

sub-section (1) of Section 3, by order, grant such

concessions in respect of fees for any competitive

examination or interview and relaxation in upper age

limit, as it may consider necessary.

(2)The Government orders in force on the date of

commencement of this Act, in respect of concessions and

relaxations, including concession in fees for any

50

competitive examination or interview and relaxation in

upper age limit and those relative to reservation in direct

recruitment and promotion, in favour of categories of

persons referred to in Sub-section (1), which are not

inconsistent with the provisions of this Act, shall

continue to be applicable till they are modified or

revoked, as the case may be.”

51.Schedule II gives a list of category of persons to whom

reservation under Section 3 (1) would not be available, as they fall

within the category of persons commonly known as “creamy layer”.

A perusal of Section 3 (1) would show that it provides for

reservation in favour of the categories mentioned therein at the

stage of direct recruitment. The controversy between the parties in

these appeals is limited to sub-section (6) of Section 3 and Section 8

of the 1994 Act. It was strenuously argued by Mr.Rao and Dr.

Rajeev Dhawan that Section 3 (6) of the Act of 1994 does not

permit the reserved category candidates to be adjusted against

general category vacancies who had applied as reserved category

candidate. In the alternative, learned counsel had submitted that at

least such reserved category candidate who had appeared availing

51

relaxation of age available to reserved category candidates cannot

be said to have competed at par in Open Competition with General

category candidates, and therefore, cannot be adjusted against the

vacancies meant for General Category Candidates. We are of the

considered opinion that the concessions falling within Section 8 of

the Act of 1994 cannot be said to be relaxations in the standard

prescribed for qualifying in the written examination. Section 8

clearly provides that the State Government may provide for

concessions in respect of fees in the competitive examination or

interview and relaxation in upper age limit. Soon after the

enforcement of the 1994 Act the Government issued instructions

dated 25.03.1994 on the subject of reservation for Scheduled Caste,

Scheduled Tribe and other backward groups in the Uttar Pradesh

Public Services. These instructions, inter alia, provide as under:-

“4. If any person belonging to reserved categories

is selected on the basis of merits in open

competition along with general candidates, then

he will not be adjusted towards reserved category,

that is, he shall be deemed to have been

adjusted against the unreserved vacancies. It

shall be immaterial that he has availed any

facility or relaxation (like relaxation in age limit)

available to reserved category.”

52

52. From the above it becomes quite apparent that the relaxation

in age limit is merely to enable the reserved category candidate to

compete with the general category candidate, all other things being

equal. The State has not treated the relaxation in age and fee as

relaxation in the standard for selection, based on the merit of the

candidate in the selection test i.e. Main Written Test followed by

Interview. Therefore, such relaxations cannot deprive a reserved

category candidate of the right to be considered as a general

category candidate on the basis of merit in the competitive

examination. Sub-section (2) of Section 8 further provides that

Government Orders in force on the commencement of the Act in

respect of the concessions and relaxations including relaxation in

upper age limit which are not inconsistent with the Act continue to

be applicable till they are modified or revoked. Learned counsel for

the appellants had submitted that in the present appeals, the issue

is only with regard to age relaxation and not to any other

concessions. The vires of Section 3 (6) or Section 8 have not been

challenged before us. It was only submitted by the learned Sr.

Counsel for the petitioners/appellants that age relaxation gives an

undue advantage to the candidate belonging to the reserved

53

category. They are more experienced and, therefore, steal a march

over General Category candidates whose ages range from 21 to 25

years. It is not disputed before us that relaxation in age is not only

given to members of the Scheduled Castes, Scheduled Tribes and

OBCs, but also the dependents of Freedom Fighters. Such age

relaxation is also given to Ex-servicemen to the extent of service

rendered in the Army, plus three years. In fact, the educational

qualifications in the case of Ex-servicemen is only intermediate or

equivalent whereas for the General category candidates it is

graduation. It is also accepted before us that Ex-servicemen

compete not only in their own category, but also with the General

category candidates. No grievance has been made by any of the

appellants/petitioners with regard to the age relaxation granted to

the Ex-servicemen. Similarly, the dependents of Freedom Fighters

are also free to compete in the General category if they secure more

marks than the last candidate in the General category. Therefore,

we do not find much substance in the submission of the learned

counsel for the appellants that relaxation in age “queers the pitch”

in favour of the reserved category at the expense of the General

category. In our opinion, the relaxation in age does not in any

54

manner upset the “level playing field”. It is not possible to accept

the submission of the learned counsel for the appellants that

relaxation in age or the concession in fee would in any manner be

infringement of Article 16 (1) of the Constitution of India. These

concessions are provisions pertaining to the eligibility of a

candidate to appear in the competitive examination. At the time

when the concessions are availed, the open competition has not

commenced. It commences when all the candidates who fulfill the

eligibility conditions, namely, qualifications, age, preliminary

written test and physical test are permitted to sit in the main

written examination. With age relaxation and the fee concession,

the reserved candidates are merely brought within the zone of

consideration, so that they can participate in the open competition

on merit. Once the candidate participates in the written

examination, it is immaterial as to which category, the candidate

belongs. All the candidates to be declared eligible had

participated in the Preliminary Test as also in the Physical Test. It

is only thereafter that successful candidates have been permitted to

participate in the open competition.

55

53. Mr. Rao had suggested that Section 3 (6) ensures that there is

a level playing field in open competition. However, Section 8 lowers

the level playing field, by providing concessions in respect of fees for

any competitive examination or interview and relaxation in upper

age limit. We are unable to accept the aforesaid submission. Section

3 (6) is clear and unambiguous. It clearly provides that a reserved

category candidate who gets selected on the basis of merit in open

competition with general category candidates shall not be adjusted

against the reserved vacancies. Section 3(1), 3(6) and Section 8 are

inter-connected. Expression “open competition” in Section 3 (6)

clearly provides that all eligible candidates have to be assessed on

the same criteria. We have already noticed earlier that all the

candidates irrespective of the category they belong to have been

subjected to the uniform selection criteria. All of them have

participated in the Preliminary Written Test and the Physical Test

followed by the Main Written Test and the Interview. Such being

the position, we are unable to accept the submissions of the learned

counsel for the petitioners/appellants that the reserved category

candidates having availed relaxation of age are disqualified to be

adjusted against the Open Category seats. It was perhaps to avoid

56

any further confusion that the State of UP issued directions on

25.3.1994 to ensure compliance of the various provisions of the Act.

Non-compliance by any Officer was in fact made punishable with

imprisonment which may extend to period of three months.

54.In view of the above, the appeals filed by the General Category

candidates are without any substance, and are, therefore,

dismissed.

Civil Appeal Nos………………………………………… .…of 2010

(Arising out of SLP (C) NOS. 14078-80 of 2008 and 19100 of 2009)

Leave granted.

55. In the appeal filed by the State of UP it was submitted that

against the 67 posts of general category reserved for women only 15

qualified candidates were available. They were duly selected. 52

posts, which remained unfilled, were filled up from the male

candidates in accordance with GO dated 26.02.1999. Therefore,

there remained no unfilled vacancy in the general category.

Therefore, the Division Bench erred in coming to the conclusion

that 52 vacancies have been carried forward contrary to the

aforesaid GO. It was further submitted that the learned Single

57

Judge erred by directing the appellants to fill up the vacancy which

were excluded from 2% sports quota from the aforesaid selection.

According to the appellants, the advertisement clearly mentioned

that the vacancies under the sports quota shall be filled separately.

Therefore, the learned Single Judge was not justified in directing for

filling up of these vacancies from this very selection. According to

Mr. Dwivedi, the entire factual position was placed before the

learned Single Judge in the counter affidavit which was duly

noticed by the learned Single Judge as follows:-

“In the counter affidavit the respondents have given

details pertaining to the candidates belonging to

different categories who were finally selected and the

percentage of reservation fixed according to number of

posts. According to the respondents total posts for Sub

Inspector Civil Police were 1231 (male) + 148 female

(ten per cent posts were referred to be reserved for

women). According to the respondents the

advertisement for 1634 posts was published

containing 1231 male + 148 (female) Sub Inspector

Civil Police and 255 Platoon Commander. It was

stated that according to the police of the State 2%

posts were reserved for sports men hence against

1478 posts of Sub Inspector 2% i.e. 29 posts of Sub

Inspector were earmarked for sports men and five

posts of Platoon Commander in sports quota. It was

thus stated that 1350 posts were for Sub Inspector

civil police and 250 posts were to be filled up by

Platoon Commanders. The percentage of reservation

against the aforesaid posts have been mentioned in

58

paragraph 4 of the supplementary counter-affidavit

which is extracted below.

1-Posts 1350 for Sub Inspector, Civil Police

Sl.No

.

Caste/Class Percentage

of

reservation

MaleFemale

10%

Total

1 General Caste

(Unreserved)

50% 608 67 675

2 8 Backward

Class

(reserved)

27% 328 37 365

3 8 Scheduled

Caste

(reserved)

21% 255 28 283

4 84 Scheduled

Tribe

2% 24 03 027

1005 1215135 1350

5 Dependent of

Freedom

Fighters

2% 24 03 27

6. Ex-servicemen 1% 12 01 13

(2) 250 Posts for Platoon Commander, PAC

Sl.No

.

Caste/Class Percentage

of

reservation

Male

1 General Caste

(Unreserved)

50% 125

2 Backward

Class

(reserved)

27% 67

3 8 Scheduled

Caste

21% 53

59

4 84 Scheduled

Tribe

2% 05

100% 250

It has been stated in the supplementary counter

affidavit that 608 male belonging to general category

were selected, against 67 posts of general category

for women only 15 women were available who were

selected rest of 52 posts were filled up on merit from

male candidates in accordance with the Government

order dated 26.02.1999. It was stated that the total

675 posts in general category were filled up and no

post of general category is vacant. “

56.Mr. Dwivedi further submits that the learned Single Judge

took note of the averments made in paragraph 4 of the

supplementary counter affidavit, and yet issued a direction to

recalculate the number of posts of general category candidates by

applying 2% reservation for sportsmen horizontally and adding 2%

posts of sportsmen also while calculating the number of vacancy of

general category candidates. Mr. Dwivedi further submits that the

learned Single Judge erred in holding that the Government order

dated 26.02.1999 does not specifically provide that the post which

are not filled up by women candidates are to be filled up from the

male candidates. The Division Bench was, therefore, justified that

the aforesaid view of the learned Single Judge was apparently

erroneous and inconsistent to the specific provisions contained in

60

paragraph 4 of GO dated 26.02.1999. The Division Bench,

however, committed a factual error in recording the following

conclusion “we are constrained to hold that the authorities erred in

law by leaving the vacancies kept for reserved women candidates

unfilled instead of selecting and recommending suitable male

candidates of respective category of the same selection”.

57.Aggrieved against the aforesaid observations, the appellants

sought review of the aforesaid judgement which has been

erroneously dismissed by simply recording:-

“We have head Sri G.S. Upadhyay, learned

Standing counsel appearing for the applicant. It is

submitted that this Court’s observation at page 65

and 66 in respect of vacancies reserved for

woman and sports quota which remain unfilled

needs clarification.

We are of the view that our judgement is clear and

it does not suffer from any ambiguity and thus

does not require to be clarified or recalled.”

58.As noticed earlier, Mr. L.N. Rao and Dr.Dhawan had

submitted that the vacancies reserved for women and for the

outstanding sportsperson had to be filled by applying “horizontal

reservation”. No carrying forward of the vacancies was permissible.

61

59. We have 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 in consonance

with the law laid down by this Court in the case of Indra Sawhney

case (supra):-

“812. We are also of the opinion that this rule of

50% applies only to reservations in favour of

backward classes made under Article 16(4). A little

clarification is in order at this juncture; all

reservations are not of the same nature. There are

two types of reservations, which may, for the sake of

convenience, be referred to as ‘vertical reservations’

and horizontal reservations’. The reservations in

favour of Scheduled Castes, Scheduled Tribes and

other backward classes [under Article 16(4)] may be

called vertical reservations whereas reservations in

favour of physically handicapped [under clause (1) of

Article 16] can be referred to as horizontal

reservations. Horizontal reservations cut across the

vertical reservations – what is called interlocking

reservations. To be more precise, suppose 3% of the

vacancies are reserved in favour of physically

handicapped persons; this would be a reservation

relatable to clause (1) of Article 16. The persons

selected against this quota will be placed in the

appropriate category; if he belongs to SC category he

will be placed in that quota by making necessary

adjustments; similarly, if he belongs to open

competition (OC) category, he will be placed in that

category by making necessary adjustments. Even

62

after providing for these horizontal reservations, the

percentage of reservations in favour of backward

class of citizens remains – and should remain – the

same. This is how these reservations are worked

out in several States and there is no reason no to

continue that procedure.”

60.The aforesaid principle of law has been incorporated in the

instructions dated 26.02.1999. Paragraphs 2 and 4 of the aforesaid

instructions which are relevant are hereunder:-

“2. The reservation will be horizontal in nature i.e.

to say that category for which a women has been

selected under the aforesaid reservation policy for

posts for women in Public Services and on the posts

meant for direct recruitment under State Government,

shall be adjusted in the same category only;

xxxx xxxx xxxx xxx

4.If a suitable women candidate is not available

for the post reserved for women in Public Services

and on the posts meant for direct recruitment under

State Government, then such a post shall be filled up

from amongst a suitable male candidate and such a

post shall not be carried forward for future;”

61.The Learned Single Judge whilst interpreting the aforesaid,

has observed that it does not specifically provide for posts which are

not filled up by women candidates to be filled up from the male

candidates. This view is contrary to the specific provision contained

63

in Paragraph 4. The aforesaid provision leaves no matter of doubt

that any posts reserved for women which remain unfilled have to be

filled up from amongst suitable male candidates. There is a specific

prohibition that posts shall not be carried forward for future.

Therefore, the view expressed by the Learned Single Judge cannot

be sustained.

62.We may also notice here that in view of the aforesaid

provisions, the State has not carried forward any of the general

category posts reserved for women and outstanding sportspersons.

Furthermore, all the posts remaining unfilled, in the category

reserved for women have been filled up by suitable male candidates,

therefore, clearly no post has been carried forward. Therefore the

mandate in Indra Sawhney (supra) and the G.O. dated 26.2.1999,

have been fully coupled with. We are also of the opinion that the

conclusion recorded by the Division Bench is without any factual

basis. The factual position was brought to the notice of Division

Bench in the recall/modification application No.251407 of 2007.

However, the recall/modification application was rejected. We are,

therefore, of the opinion that the Division Bench erred in issuing

the directions to the appellants to fill in the unfilled vacancies

64

reserved for women candidates from suitable male candidates. This

exercise had already been completed by the appellant-State.

63. As noticed earlier, the learned Single Judge despite taking

note of the averments made in the supplementary counter affidavit

by the State, erroneously issued directions to recalculate the

vacancies reserved for outstanding sportspersons. It was

specifically pointed out that a separate advertisement had been

published for recruitment on the post reserved for outstanding

sportsperson. It was also pointed out that all the posts available in

the category of sportsmen were filled up in the subsequent

selection. No post remained unfilled. Therefore, the conclusion of

the learned Single Judge that the (29 SICP) + (5 PC) i.e. 34 posts

ought not to have been deducted from the available 1478 posts for

the purposes of calculating the number of vacancies available to the

general category, was factually erroneous. It is not disputed before

us that the principle of horizontal reservation would also apply for

filling up the post reserved for outstanding sportsperson. It is also

not disputed before us that there could have been no carry forward

of any of the post remaining unfilled in the category of outstanding

sportsperson. As a matter of fact, there was no carry forward of the

65

vacancies. They were filled in accordance with the various

instructions issued by the Government from time to time. In our

opinion the Division Bench erred in law in concluding that since the

advertisement did not mention that a separate selection will be

held, for the post reserved for sportsmen, the same would not be

permissible in law. The deduction of 34 posts for separate selection

would not in any manner affect the overall ratio of reservation as

provided by law. Furthermore, there is no carry forward of any

post. The separate selection is clearly part and parcel of the main

selection. In view of the factual situation, we are of the opinion,

that the conclusions recorded by the learned Single Judge and the

Division Bench with regard to the 34 posts reserved for the

outstanding sportsmen category i.e. (29 SICP) + (5 PC) also cannot

be sustained.

64.Therefore, the aforesaid appeals filed by the State and the

Director General of Police are allowed. The direction issued by the

learned Single Judge in the final paragraph as well as the directions

issued by the Division Bench in modification of the order of learned

Single Judge are set aside.

66

..……….………………………. J

(TARUN CHATTERJEE)

..………………………………… J

(SURINDER SINGH NIJJAR)

NEW DELHI,

JANUARY 08, 2010.

67