The case involves Ms. Sonam Tomar and Ms. Reeta Rani, who participated in the selection process for Constables in U.P. Police. Despite securing high marks, their claims were rejected by ...
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1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
MISCELLANEOUS APPLICATION NO.2641 OF 2019
IN
SPECIAL LEAVE PETITION (CIVIL)NO.23223 OF 2018
SAURAV YADAV & ORS. …Petitioner(s)
Versus
STATE OF UTTAR PRADESH & ORS. …Respondent(s)
WITH
W.P. (C) NO.237 OF 2020
J U D G M E N T
Uday Umesh Lalit, J.
MISCELLANEOUS APPLICATION NO.2641 OF 2019
1. This Miscellaneous Application has been preferred by Ms. Sonam
Tomar and Ms. Reeta Rani who had participated in the Selection Process
initiated for filling up posts of Constables in U.P. Police and secured
2
276.5949 and 233.1908 marks respectively. They had applied in the
categories of OBC-Female and SC-Female respectively.
2. It is submitted by them that their claim has been rejected by the
State Government despite directions issued by this Court in its Order dated
24.07.2019 in I.A. No.10394 of 2018 (Ashish Kumar Yadav and Others vs.
State of Uttar Pradesh and Others) and that candidates with lower marks
have been selected in General Female category disregarding their claim.
3. The basic facts relevant for the purposes of this Miscellaneous
Application, as stated in said order dated 24.07.2019 are as under: -
“In the year 2013, selection process was undertaken to fill
up 41,610 posts of Police Constables [U.P. Civil
Police/Provincial Armed Constabulary (PAC)/Fireman]).
After the requisite examination, results were declared on
16.07.2015, in which 38315 candidates were successful.
Thus, as on that date there were 3295 vacancies which
were not filled as no suitable candidates were available.
It must be mentioned that the process for selecting Sub-
Inspectors in U.P. Police was going on simultaneously and
in a challenge raised in respect of said process, the High
Court of Judicature at Allahabad vide its order dated
29.05.2015 in the case of Saket Kumar and Ors. vs. State
of U.P. and 2 Ors
1
directed that the candidates who had
used blades and whiteners while answering the answer
papers of the main examination were disqualified and their
names be deleted from the selection list.
The matter was carried in appeal before this Court and by
its decision dated 19.01.2016 (Hanuman Dutt Shukla &
Ors. vs. State of UP and Others
2
), it was ruled that those
who had used blades and whiteners ought not to have been
disqualified. However, by that time, the process of
1 Writ A. No.67782 of 2014, (2015 SCC OnLine All 1250)
2 (2018) 16 SCC 447
3
selection had gone ahead with re-working of the seniority
list in terms of the order passed in Saket Kumar
1
. This
Court, therefore, observed that those candidates who were
selected as a result of directions in Saket Kumar
1
should
not be thrown out from the process of selection but the
candidates who had used the blades and whiteners should
be given the advantage or benefit in a notional selection.
In other words, the selection list was ordered to be re-
worked and in case the candidates who had used blades
and whiteners were now found to be part of the selection
list, they be given appropriate advantage including
selection to the posts in question. It was also directed that
though logically equal number of candidates must be
displaced from the original list of selection, since those
persons had already undergone training and some of them
had joined the posts, those candidates ought not to be
thrown out of service. This Court also directed that in the
process, the additional number of candidates who were
selected over and above the normal selection should be
reckoned as against additional posts and should not be
taken to be part of the original posts for selection.
The principle so devised in HD Shukla
2
was then adopted
in the process of selection for Police Constables which
was going on simultaneously and consequently the
selection list was reworked. Thus all the candidates who
had used blades and whiteners were considered in the
process of selection and some of them did get selected. In
the re-working of the selection list 4429 candidates were
given advantage or benefit in terms of the law declared in
Hanuman Dutt Shukla
2
which is to say those 4429
candidates would be taken as additional appointments over
and above the number of posts for which selection was
undertaken.
In its judgment dated 16.03.2016 [Ashish Kr. Pandey &
24 others vs. State of U.P. and 29 Others
3
], the High
Court of Judicature at Allahabad observed that horizontal
reservation was not properly worked and as such the State
was directed to undertake the process of re-calculating
horizontal reservation vacancies afresh. This case was also
in relation to the process of selection for Sub-Inspectors.
Around same time, another decision was rendered by the
High Court in Manoj Kr. & Others
4
adopting the principle
in Ashish Kr. Pandey
3
in selection process for Constables.
3 Writ A. No.37599 of 2015 (2016 SCC OnLine ALL 187)
4 2017 SCC OnLine ALL 2759
4
On 4.5.2018, a decision was rendered by the High Court
of Judicature at Allahabad in Upendra and others vs.
State of U.P. and Others
5
wherein challenge was raised to
certain provisions of the Reservation Act. It was submitted
that going by the concept of horizontal reservation, it
would not be possible to carry forward the vacancies to the
next selection, in case the appropriate number of
candidates for horizontal reservation were not available.
The High Court accepted the plea and directed that there
shall not be any carry-forward of vacancies of horizontal
reservation to the next selection.
Thus the matter was clear that in case appropriate number
of candidates for filling up seats meant for horizontal
reservation were not available, there would not be any
carry forward of such vacancies. The order shows that
about 2312 vacancies were not filled up by the State
adopting the idea of carry forward principle in horizontal
reservation. Therefore, as a result of the directions issued
by the High Court in Upendra’s case, 2312 vacancies must
enure to the advantage of the candidates concerning the
present selection process itself.
It is accepted by the learned counsel for the State that the
State did not undertake any process of selection in respect
of those 2312 vacancies.
… … …
… … …
It is also accepted that apart from these 2312 vacancies,
there are still 982 vacancies to be filled up in the original
selection.”
In the circumstances this Court directed the State to complete the
process of selection in respect of 2312 + 982 vacancies in accordance with
law. It was also directed that the principle of reservation would be followed
while filling up these vacancies and that the State would adhere to the
required minimum qualifying marks as devised during the process of
5 Writ C. No.3417 of 2016; 2018 (7) ADJ 37
5
selection and consider all eligible candidates in accordance with merit. It
was also declared: -
“It is clarified that no candidate shall be excluded from the
selection process merely because he had used blade or
whitener. In case his merit position otherwise demands
and entitles him to be selected, no prejudice shall be
caused to him merely for the use of blade and whitener.”
4. Soon thereafter, apprehension was expressed whether the direction
as aforesaid would apply to male candidates only. Therefore, the order
dated 17.09.2019 recorded as under: -
“Mr. Vinod Diwakar, learned AAG for the State makes a
statement that keeping in view the direction issued by this
Court on 24.07.2019, no candidate shall be excluded from
the selection process merely because he/she had used
blade/whitener and in case merit position of the candidate
demands and entitles him/her to be selected, no prejudice
shall be caused to him/her merely for using
blade/whitener. Statement is taken on record.”
5. In compliance of the order dated 24.07.2019, an affidavit dated
13.11.2019 was filed on behalf of the State stating inter alia :-
“3.3- In open Category 5 DFF males, 1 DFF female and
187 female (General) have been selected. This process
completes horizontal reservation.
4- Cut off marks for different categories are as under-
OC OBC SC ST
Male
Cut
off
313.616307.233283.4033247.233
3
Female (General Category) cut off – 274.8928.
6
All the OBC, SC and ST candidates securing more than
313.616 marks have also been selected in open /
unreserved category.”
6.Aggrieved by the action on part of the State in not considering the
claim of OBC female and SC female candidates against the posts meant
for General Category female candidates, this Miscellaneous Application
is preferred submitting inter alia:-
“13. That a perusal of paragraph 4 of the Compliance
Affidavit dated 13.11.2019 filed by the Respondent State
reveals that while all Male Candidates belonging to OBC,
SC, ST category securing more than the cut off marks
(313.616) for the Male Candidates in the
General/Open/Unreserved Category have also been
selected, the same standard has not been applied to the
OBC/SC/ST Women Category Candidates like the
Petitioners/Applicants although they have obtained more
than the cut of marks (274.8928) for the Female
Candidates in the General/Open/Unreserved Category.
14. That it is respectfully submitted that 21 of the
Petitioners/Applicants belonging to the Female OBC
Category have secured marks more than the cut off marks
for the Female (General Category) candidates declared to
be selected as per the State’s Compliance Affidavit dated
13.11.2019.”
The Applicants, therefore, pray: -
“(a) Allow the instant application and direct the
Respondent State to select the Applicants/Petitioners
herein [Female OBC/SC candidates] who participated in
the 2013 Constables Recruitment Process and secured
higher marks than the Cut off marks (274.8928) for the
Female Candidates in the General/Open/Unreserved
Category;”
7
7. Thereafter I.A. No.25611 of 2019 has been filed by similarly
situated candidates claiming similar relief. The Order dated 04.03.2020
passed by this Court stated: -
“In M.A. No.2641 of 2019 the case in respect of two
applicants is projected while in I.A. No.25611/2019 the
matter is being agitated with respect to other 20
candidates.
Issue notice in I.A. No.25611/2019 returnable on
24.3.2020.
Ms. Vibha Dutta Makhija, learned Senior Advocate fairly
accepts that out of 32 female candidates, 11 candidates
belong to the category of SC girls while other 21 belong to
the category of OBC girls and that there is no case in so
far as candidates belonging to SC-girls category are
concerned.
In so far as OBC girls are concerned, Ms. Vibha Dutta
Makhija, learned Senior Advocate submits that all these
girls had secured marks greater than cut off namely 274.89
which was declared for females (General) category. Our
attention is invited to page 110 of the Compliance
Affidavit which shows that some female candidates who
had scored marks in the range of 274-275, have been
selected.
It is the submission that the applicant girls of the category
of OBC girls had scored marks greater than those General
category girls who were selected.
One of the submissions sought to be advanced by the
learned counsel for the State was that the category of OBC
Females was already exhausted in the first round and the
selection which was undertaken pursuant to the directions
issued by this Court in Hanuman Dutt Shukla’s
2
case and
in cases decided subsequently on same lines, was only
confined to the candidates who had been disqualified for
having used blades/erasers or whiteners. Since the
selection was confined to such candidates, and as the
category of OBC female was already exhausted, no
candidates could be appointed from and out of OBC
female candidates. However, the fact remains that females
coming from General Category who had secured marks in
the range of 274-275, going by Page 110, have definitely
been appointed, whereas applicant OBC-girls had secured
marks greater than them.
8
It thus, prima facie does not stand to reason how
candidates in the General Category could be appointed
who had secured less number of marks than the applicant
girls.”
8. Thereafter, the Order dated 22.07.2020 passed by this Court was to
the following effect:-
“Mr. Vinod Diwakar, learned AAG for the State submitted
that in the category of Male Constables, OBC, SC and ST
candidates securing more than the cut-off, namely,
313.616 for Open Category Candidates, were also selected
in the open/unreserved category.
However, same yardstick was not applied with respect to
the Female Candidates and justification for such exercise
was on the basis of the directions issued by the High Court
in its order dated 16.03.2016 in Writ Petition No.37599 of
2015 and order dated 20.02.2019 in Writ Petition
No.18442 of 2018.”
9. The stand taken by the State Government in its affidavits was as
under:-
I] Affidavit dated 29.11.2019
“A. In the year 2013 selection process was undertaken to
fill up 41610 posts of police constable (UP civil
police/PAC/Fireman). Details are as follows:-
Table-1
S.No
.
Categor
y
Civil
Police
PACFirema
n
Total
1 Open 17750 20161038 20804
2 OBC 9585 1089561 11235
3 SC 7455 847436 8738
4 ST 710 8142 833
Total 35500 40332077 41610
9
B. Horizontal reservation position is as follows-
Table-2
Vertical
Reservatio
n
Total
Vacancies
Horizontal Reservation Vacancies
Ex-
Servicema
n 05%
DFF
02%
Home-
Guard
(only
for
civil
police
&
PAC
05%)
Femal
e (only
for
civil
police)
20%
Open 20804 1040 416988 3550
OBC 11235 562 225534 1917
SC 8738 437 175415 1491
ST 833 42 17 40 142
Total 41610 2081 83319777100
Results were declared on 16-07-2015 after completing
requisite examination and other procedures. 38315
candidates were declared successful and 3295 posts
remained vacant due to unavailability of suitable
candidates in respective categories.
… … …
C. In compliance of the Hon’ble Supreme Court order
dated 24-07-2019, selections have been made against
3295 posts according to merit, keeping in view the
reservation policy of the government. The result has
been declared on 11.11.2019. It is pertinent to
mention here that 7100 posts were reserved for
female candidates as against 35500 posts of civil
police (Table-2) in which 3550 posts were earmarked
for General female candidates. At this stage OBC and
SC female candidates were already taken in surplus to
their required number in respective categories Female
candidates were only 3062 as against 3550 (Ref.
Table-2). Hence, therefore, 188 General Female
candidates in Open Category have been selected to
fill up their reservation quota against 3550 Open
Category Female candidates.”
10
II. Affidavit dated 21.07.2020
“13. That it is again reiterated that in Civil Police, out of
total vacancies 3550 were reserved for General Category
Women’s, 1970 were reserved for OBC, 1491 were
reserved for SC and 142 were reserved for ST Women’s
Candidates. It is again reiterated that the OBC and SC
women candidate had already been selected against the
vacancies hence therefore in subsequent selection their
merit has not been considered.”
10.Since reliance has been placed by the State on the Order dated
16.03.2016
3
passed by the Single Judge of High Court of Judicature at
Allahabad in Writ Application No.37599 of 2015, some of the relevant
observations in said Order are quoted here:-
“It was, therefore, mandated that upon
adjustment/accommodation if the special category
candidate belonging to OBC category scored higher marks
than his/her counterpart adjusted in open category, cannot
be shifted to open category. Shifting would tantamount to
vertical reservation which is impermissible and alien to the
concept of horizontal reservation. Horizontal reservation
cut across vertical reservation, therefore, there is no
concept of ‘merit’ while making
adjustment/accommodation.
… … …
Learned counsel for the respondents
6
would urge that (i)
the women selected on merit should be excluded while
determining the number of women candidates to be
adjusted in respective category, (ii) open category being
‘open’ based on merit, therefore, the candidates under
special reservation quota should be
accommodated/adjusted on the basis of their inter se merit
in open category, irrespective of their social category, (iii)
women are a class, therefore, there can be no
6 State of U.P. and its functionaries
11
discrimination on the basis of their social category, (iv) the
principles as sought to be urged, if not followed, would
tantamount to reservation in favour of “upper caste” which
is not the aim or object of the Constitution.
The argument, in my opinion, is not only misconceived,
but malicious and motivated as is being sought to be urged
by the petitioners. The principles for horizontal
reservation that is being sought to be urged, if accepted,
would necessarily be in teeth of the provisions of Act,
1993, Government Orders referred to earlier, and the
authoritative pronouncement of the Apex Court. I have no
hesitation in observing that both the State and the Board,
for the reason best known to them, and the Advocate
General, assisted by a battery of lawyers, with impunity
have taken a stand against their own Government Orders
and the provisions of Act, 1993. When confronted with a
query that the Advocate General was arguing not only
against the Government Orders but also against the
principles which was continuously being followed by the
Board, in previous selections regarding horizontal
reservation; Sri Singh would contend that the principle
adopted by the Board being ‘equitable’, therefore, the
State supports the methodology adopted by the Board. The
argument, however, was not supported by any authority,
rather the authorities referred, herein above, was relied
upon by both the contesting parties in support of their
arguments.
… … ….
The questions framed, consequently, are answered as
follows:
(i) The candidates claiming horizontal reservation
(women, ex-servicemen and dependent of freedom fighter)
cannot be adjusted enmasse in the open category but
would have to be adjusted against their respective social
category i.e. OBC, SC and ST …….”
(Emphasis supplied)
11.The aforesaid decision of the Single Judge was affirmed in appeal
by the Division Bench
7
of the High Court with following observations: -
7 State of UP & Ors. vs. Ashish Kumar Pandey & Ors. : 2016 SCC OnLine All 2611
12
“31. While applying the principle of Horizontal
Reservation, category has a role to play as at the point of
time when Horizontal Reservation is to be pressed, then
based on merit candidates in question are to be adjusted in
their respective category and the male candidates, who are
at the bottom of the list as per the merit, will have to make
place for women candidate. A candidate, who has
proceeded to make an application for the purposes of
Horizontal Reservation under the OBC/SC/ST category,
cannot be permitted to change his/her category, whereas in
Vertical Reservation once you are selected, on merit, such
a change is permissible by operation of law and in view of
this, once such is the factual situation that is so emerging
that all the candidates once they have specified their
category in reference of Special Reservation, then they
have to be adjusted in their respective categories and the
reserve category candidate cannot ask for placement
against open category by claiming that they have higher
merit, inasmuch as, only in the matter of Vertical
Reservation, merit has a role to play wherein the list is
finalized but at the point of time when for providing
Horizontal Reservation adjustment is to be made, then
various adjustments is required to be done as per the
formula that has been approved and ratified by the Apex
Court that in the matter of horizontal reservation,
adjustment would be made by making appropriate
placement in appropriate categories. Apex Court was
conscious of this fact, that such a provision may be
subjected to misuse and accordingly, position was sought
to be clarified by giving examples and then providing that
if horizontal reservation is not satisfied, the requisite
number of special reservation candidate has to be taken
and accommodated/adjusted against their respective social
reservation categories. Sub-section (3) of Section 3 of U.P.
Act No.4 of 1993 provides for horizontal reservation to be
applied accordingly, Application of horizontal reservation
in this prescribed manner maintains the merit of special
reservation quota candidate alongwith their representation
in service, in view of this, the Learned Single Judge is
absolutely right at the point of time when he has
proceeded to criticise the State Government for taking
such a stand and for adhering to a procedure that was not
at all prescribed in law and thus crossing the limit of
reservation of 50%, in view of this, the order passed by
Learned Single Judge does not deserve interference on this
aspect of the matter.”
(Emphasis supplied)
13
12.The observations in the Order dated 20.02.2019 passed by the
Division Bench of the High Court of Judicature at Allahabad in Pramod
Kumar Singh and Others vs. State of U.P. and Others
8
are also relied
upon by the State Government. In that case the horizontal reservation for
dependants of Freedom Fighters, Ex. Servicemen and women in the very
same selection for Police Constables was in issue. The Division Bench of
the High Court dealt with the Note submitted on behalf of the State which
indicated the steps undertaken to determine and fill up seats for various
categories as under:-
“The procedure as set forth for completion of the
recruitment exercise is then described in the following
terms:
“Step 3.1 From List -1 select 19158 candidates in
open category in order of their merit (Total
Marks). This list may contain candidates from any
state or any reserved categories (OBC/SC/ST)
also. Let us call this list as List 1-A.
Step 3.2 Now select 10345 candidates of OBC
Category from the candidates left after Step 3.1
from the List-1. This will include only OBC
candidates with domicile of U.P. Let us call this
list as List-1-B.
Step 3.3 Now select 8046 candidates of SC
Category from the candidates left after Step 3.1
from the List-1. This will include only SC
candidates with domicile of U.P. let us call this list
as List 1-C.
Step 3.4 Now select 766 candidates of ST
Category from the candidates left after Step 3.1
from the List-1. This will include only ST
8 Writ A. No.18442 of 2018
14
candidates with domicile of U.P. let us call this list
as List 1-D.
Step 3.5 If number of candidates in List-1-C is
less than the required number 8046 for SC
Candidates from shortage will be filled from ST
candidates remaining after step 3.4 if available. If
required quota of SC remains unfilled, then
number of shortage posts should be shown
separately. Similarly if number of for ST
candidates then shortage will be filled from SC
candidates remaining after Step 3.3, if available. If
required of ST still remains unfilled then number
of shortage posts should be shown separately.
Step 3.6 In this way four lists of candidates will
be prepared as follows:
List-1-A
(OC)
List-1-B
(OBC)
List-1-C
(SC)
List-1-D
(ST)
19158 (will
include
GEN, OBC,
ST of any
state)
10345
(Only OBC,
domicile of
U.P.)
8046 (Only
SC,
domicile of
U.P.)
766 (Only
ST,
domicile
of U.P.)
Step 4 prepare a separate list of remaining
candidates from List-1 who are not included in
List-1-A, 1-B, 1-C and 1-D. Let us call this list as
List-1.
Step 4.1 Now count the number of DFF candidates
belonging to General Category (having domicile of
U.P.) from the List-1-A. The candidates should
not be OBC/SC/ST category. If number of
candidates is 383 or more, then nothing needs to
be done, otherwise select the shortfall of
candidates of general category belonging to DFF
on merit from the List-2 (Only candidates not
belonging to OBC, SC & ST category) and
adjust/insert them in after removing equal number
of candidates from the bottom of List-1-A except
General Category DFF, Ex-Servicemen, female
and home guard candidates ( any candidate who is
eligible for horizontal reservation)”.
15
The High Court then directed as under:-
“These writ petitions are therefore disposed of with a
direction to the State respondents to proceed forward with
expedition and conclude the selection process strictly in
accordance with the procedure detailed in the Note filed
along with the personal affidavit of the Secretary. This
Court while passing this order has not considered the
individual grievances or objections of the petitioners and
has only considered the principal submissions noticed
above. In view thereof, all individual claims as raised by
the petitioners may be raised after declaration of final
results and all contentions on merits in that respect are
kept open.”
13.Appearing for the Applicants, Ms. Vibha Datta Makhija and Mr.
Gopal Sankaranarayanan, learned Senior Advocates, have submitted that
the stand taken by the State is completely opposed to the principles laid
down by this Court and that the conclusions drawn in the Orders of the
High Court which are relied upon, were also incorrect.
14. Mr. Vinod Diwakar, learned Additional Advocate General,
appearing for the State, has submitted that the Order dated 16.03.2016 was
recognised by this Court in its decision in Alok Kumar Singh and others
vs. State of Uttar Pradesh and others
9
and the State being bound by the
observations of the High Court as quoted above, did not consider the claim
of ‘OBC Female Category’ candidates against the posts meant for
‘General Female Category’.
9 (2019) 14 SCC 692
16
15. At this stage, the stand taken by the State Government in its written
submissions must also be adverted to:-
“10. That in compliance of the order dated 16.03.2016
passed by the Hon’ble High Court in Writ Petition No.
37599 of 2015 titled as Ashish Kumar Pandey & Another
3
and order dated 20.02.2019 passed in Writ Petition No.
18442 of 2018 titled as Pramod Kumar Singh & Ors
8
, a
separate select list of 2052 General Female Candidates
were declared on 10.06.2019 for fulfilling the 20%
Horizontal Reservation embarked for women’s and entire
select list was redrawn. The OBC and SC Women
Candidates were not considered in the select list as their
horizontal quota were already exhausted in the previous
list.”
16.Thus, the facts which stand accepted or admitted on record are as
under:-
a)In pursuance of the directions issued by this Court in its
Order dated 24.07.2019, selection to the 3295
10
posts in
accordance with merit and consistent with reservation
policy of the Government was undertaken by the State
Government.
b)According to the results declared on 11.11.2019, 188 posts
in ‘General Female Category’ were filled up.
c)While filling up said 188 posts, the claim of ‘OBC Female
Candidates’ was not considered or taken into account.
10 Though the Order dated 24.07.2019 mentioned the figure to be 3294 (2312+982),
according to the State, the actual figure is 3295.
17
d)The last candidate appointed in the category of ‘General
Female’ had secured 274.8298 marks.
e)Applicant no.1 Ms. Sonam Tomar had secured 276.5949
marks i.e. greater than the candidate with 274.8298 marks
but her claim was not considered.
f)21 such applicants who come from the category of ‘OBC
Female’ are before this Court who had secured more than
274.8928 marks.
In the backdrop of these admitted facts, the action on part of the
State Government in refusing to consider the claim of ‘OBC Female
Category’ candidates in respect of ‘General Female Category’ seats is in
question in the present matter. It must be mentioned that no ‘SC Female
Category’ candidates who were not selected, had secured more marks
than 274.8928. Therefore, the claim of Applicant no.2 and other
similarly situated ‘SC Female Category’ candidates does not stand on
the same footing.
17.At the outset, it needs to be considered whether the decision in
Alok Kumar Singh
9
had recognized the Order dated 16.03.2016 as
contended. The observations in the decision of this Court were:-
“9. It may be mentioned here that in terms of the decision
3
of a Single Judge of the High Court of Allahabad rendered
on 16-3-2016 which was confirmed by the Division Bench
18
by its judgment and order dated 29-7-2016
7
, in connection
with horizontal reservation to be adopted while finalising
the result, another revised final result was published on
29-11-2016. Since no grievance is made on this count, we
have refrained from going into the details in respect of
such challenge and the consequences as a result of such
directions.”
The narration of events was only to note the effect of the order
dated 16.03.2016 and the affirmation thereof in appeal, as a result of
which revised final list was published on 29.11.2016. As the
observations indicate, this Court had not gone into the details in respect
of challenge entertained by the High Court as no occasion had arisen for
such consideration. We, therefore, reject the submission that the Order
dated 16.03.2016 stood approved by this Court.
18.As a first step while considering the validity and correctness of the
actions on part of the State Government, we may note some of the
decisions of this Court touching upon the issue of horizontal reservation:
A) Jeevan Reddy, J. speaking for himself and on behalf of three
Judges of this Court in Indra Sawhney and Others vs. Union of
India and others
11
observed as under:-
“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
11 (1992) Supp (3) SCC 217
19
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 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 not to continue that
procedure.”
B) In Swati Gupta (Ms.) vs. State of U.P. and others
12
, the
effect of para 2 of G.O. dated 17.05.1994 was considered by a bench
of two Judges of this Court and it was stated:-
“3. Similarly, the other defect in the circular reserving
35% seats for general category has been removed. The
vertical reservation is now 50% for general category and
50% for Scheduled Castes, Scheduled Tribes and
Backward Classes. Reservation of 15% for various
categories mentioned in the earlier circular which reduced
the general category to 35% due to vertical reservation has
now been made horizontal in the amended circular
extending it to all seats. The reservation is no more in
general category. The amended circular divides all the
seats in CPMT into two categories— one, general and
other reserved. Both have been allocated 50%. Para 2 of
the circular explains that candidates who are selected on
merit and happen to be of the category mentioned in para
12 (1995) 2 SCC 560
20
1 would be liable to be adjusted in general or reserved
category depending on to which category they belong,
such reservation is not contrary to what was said by this
Court in Indra Sawhney
11
. Whether the reservation for
such persons should have been made or not was not
challenged, therefore, this Court is not required to examine
it.”
C) In Anil Kumar Gupta and others vs. State of U.P. and
others
13
, a bench of two Judges of this Court explained the concept
of overall reservation as against compartmentalized reservation and
detailed the steps to be undertaken while filling up seats for vertical
and horizontal reservation as under:-
“15. On a careful consideration of the revised notification
of 17-12-1994 and the aforementioned corrigendum issued
by the Lucknow University, we are of the opinion that in
view of the ambiguous language employed therein, it is
not possible to give a definite answer to the question
whether the horizontal reservations are overall
reservations or compartmentalised reservations. We may
explain these two expressions. Where the seats reserved
for horizontal reservations are proportionately divided
among the vertical (social) reservations and are not
intertransferable, it would be a case of compartmentalised
reservations. We may illustrate what we say: Take this
very case; out of the total 746 seats, 112 seats
(representing fifteen per cent) should be filled by special
reservation candidates; at the same time, the social
reservation in favour of Other Backward Classes is 27%
which means 201 seats for OBCs; if the 112 special
reservation seats are also divided proportionately as
between OC, OBC, SC and ST, 30 seats would be
allocated to the OBC category; in other words, thirty
special category students can be accommodated in the
OBC category; but say only ten special reservation
candidates belonging to OBC are available, then these ten
candidates will, of course, be allocated among OBC quota
but the remaining twenty seats cannot be transferred to OC
category (they will be available for OBC candidates only)
13 (1995) 5 SCC 173
21
or for that matter, to any other category; this would be so
whether requisite number of special reservation candidates
(56 out of 373) are available in OC category or not; the
special reservation would be a watertight compartment in
each of the vertical reservation classes (OC, OBC, SC and
ST). As against this, what happens in the overall
reservation is that while allocating the special reservation
students to their respective social reservation category, the
overall reservation in favour of special reservation
categories has yet to be honoured. This means that in the
above illustration, the twenty remaining seats would be
transferred to OC category which means that the number
of special reservation candidates in OC category would be
56+20=76. Further, if no special reservation candidate
belonging to SC and ST is available then the proportionate
number of seats meant for special reservation candidates
in SC and ST also get transferred to OC category. The
result would be that 102 special reservation candidates
have to be accommodated in the OC category to complete
their quota of 112. The converse may also happen, which
will prejudice the candidates in the reserved categories. It
is, of course, obvious that the inter se quota between OC,
OBC, SC and ST will not be altered.
16. Now coming to the revised notification of 17-12-1994,
it says that “horizontal reservation be granted in all
medical colleges on total seats of all the courses…”.
These words are being interpreted in two different ways by
the parties; one says it is overall reservation while the
other says it is compartmentalised. Para 2 says that the
candidates selected under the aforesaid special categories
“would be kept under the categories of Scheduled
Castes/Scheduled Tribes/Other Backward Classes/General
to which they belong. For example, if a candidate
dependent on a freedom fighter selected on the basis of
reservation belongs to a Scheduled Caste, he will be
adjusted against the seat reserved for Scheduled Castes”.
This is sought to be read by the petitioners as affirming
that it is a case of compartmentalised reservation. May be
or may not be. It appears that while issuing the said
notification, the Government was not conscious of the
distinction between overall horizontal reservation and
compartmentalised horizontal reservation. At any rate, it
may not have had in its contemplation the situation like
the one which has arisen now. This is probably the reason
that this aspect has not been stated in clear terms.
22
17. It would have been better — and the respondents may
note this for their future guidance — that while providing
horizontal reservations, they should specify whether the
horizontal reservation is a compartmental one or an overall
one. As a matter of fact, it may not be totally correct to
presume that the Uttar Pradesh Government was not aware
of this distinction between “overall horizontal reservation”
and “compartmentalised horizontal reservation”, since it
appears from the judgment in Swati Gupta
12
that in the
first notification issued by the Government of Uttar
Pradesh on 17-5-1994, the thirty per cent reservation for
ladies was split up into each of the other reservations. For
example, it was stated against backward classes that the
percentage of reservation in their favour was twenty-seven
per cent but at the same time it was stated that thirty per
cent of those seats were reserved for ladies. Against every
vertical reservation, a similar provision was made, which
meant that the said horizontal reservation in favour of
ladies was to be a “compartmentalised horizontal
reservation”. We are of the opinion that in the interest of
avoiding any complications and intractable problems, it
would be better that in future the horizontal reservations
are compartmentalised in the sense explained above. In
other words, the notification inviting applications should
itself state not only the percentage of horizontal
reservation(s) but should also specify the number of seats
reserved for them in each of the social reservation
categories, viz., ST, SC, OBC and OC. If this is not done
there is always a possibility of one or the other vertical
reservation category suffering prejudice as has happened
in this case. As pointed out hereinabove, 110 seats out of
112 seats meant for special reservations have been taken
away from the OC category alone — and none from the
OBC or for that matter, from SC or ST. It can well happen
the other way also in a given year.
18. Now, coming to the correctness of the procedure
prescribed by the revised notification for filling up the
seats, it was wrong to direct the fifteen per cent special
reservation seats to be filled up first and then take up the
OC (merit) quota (followed by filling of OBC, SC and ST
quotas). The proper and correct course is to first fill up the
OC quota (50%) on the basis of merit; then fill up each of
the social reservation quotas, i.e., SC, ST and BC; the third
step would be to find out how many candidates belonging
to special reservations have been selected on the above
basis. If the quota fixed for horizontal reservations is
already satisfied — in case it is an overall horizontal
23
reservation — no further question arises. But if it is not so
satisfied, the requisite number of special reservation
candidates shall have to be taken and
adjusted/accommodated against their respective social
reservation categories by deleting the corresponding
number of candidates therefrom. (If, however, it is a case
of compartmentalised horizontal reservation, then the
process of verification and adjustment/accommodation as
stated above should be applied separately to each of the
vertical reservations. In such a case, the reservation of
fifteen per cent in favour of special categories, overall,
may be satisfied or may not be satisfied.) Because the
revised notification provided for a different method of
filling the seats, it has contributed partly to the unfortunate
situation where the entire special reservation quota has
been allocated and adjusted almost exclusively against the
OC quota.”
(emphasis supplied)
D) In Rajesh Kumar Daria etc. vs. Rajasthan Public Service
Commission and others
14
, a bench of three judges of this Court
considered the difference between vertical and horizontal reservations
as under:-
“8. We may also refer to two related aspects before
considering the facts of this case. The first is about the
description of horizontal reservation. For example, if there
are 200 vacancies and 15% is the vertical reservation for
SC and 30% is the horizontal reservation for women, the
proper description of the number of posts reserved for SC,
should be: “For SC: 30 posts, of which 9 posts are for
women.” We find that many a time this is wrongly
described thus: “For SC: 21 posts for men and 9 posts for
women, in all 30 posts.” Obviously, there is, and there can
be, no reservation category of “male” or “men”.
9. The second relates to the difference between the nature
of vertical reservation and horizontal reservation. Social
reservations in favour of SC, ST and OBC under Article
16(4) are “vertical reservations”. Special reservations in
favour of physically handicapped, women, etc., under
14 (2007) 8 SCC 785
24
Articles 16(1) or 15(3) are “horizontal reservations”.
Where a vertical reservation is made in favour of a
Backward Class under Article 16(4), the candidates
belonging to such Backward Class, may compete for non-
reserved posts and if they are appointed to the non-
reserved posts on their own merit, their number will not be
counted against the quota reserved for respective
Backward Class. Therefore, if the number of SC
candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the
percentage of posts reserved for SC candidates, it cannot
be said that the reservation quota for SCs has been filled.
The entire reservation quota will be intact and available in
addition to those selected under open competition
category. (Vide Indra Sawhney
11
, R.K. Sabharwal v. State
of Punjab
15
, Union of India v. Virpal Singh Chauhan
16
and
Ritesh R. Sah v. Dr. Y.L. Yamul
17
.) But the aforesaid
principle applicable to vertical (social) reservations will
not apply to horizontal (special) reservations. Where a
special reservation for women is provided within the
social reservation for Scheduled Castes, the proper
procedure is first to fill up the quota for Scheduled Castes
in order of merit and then find out the number of
candidates among them who belong to the special
reservation group of “Scheduled Caste women”. If the
number of women in such list is equal to or more than the
number of special reservation quota, then there is no need
for further selection towards the special reservation quota.
Only if there is any shortfall, the requisite number of
Scheduled Caste women shall have to be taken by deleting
the corresponding number of candidates from the bottom
of the list relating to Scheduled Castes. To this extent,
horizontal (special) reservation differs from vertical
(social) reservation. Thus women selected on merit within
the vertical reservation quota will be counted against the
horizontal reservation for women. Let us illustrate by an
example:
If 19 posts are reserved for SCs (of which the
quota for women is four), 19 SC candidates
shall have to be first listed in accordance with
merit, from out of the successful eligible
candidates. If such list of 19 candidates contains
four SC woman candidates, then there is no
need to disturb the list by including any further
15 (1995) 2 SCC 745
16 (1995) 6 SCC 684
17 (1996) 3 SCC 253
25
SC woman candidate. On the other hand, if the
list of 19 SC candidates contains only two
woman candidates, then the next two SC
woman candidates in accordance with merit,
will have to be included in the list and
corresponding number of candidates from the
bottom of such list shall have to be deleted, so
as to ensure that the final 19 selected SC
candidates contain four woman SC candidates.
(But if the list of 19 SC candidates contains
more than four woman candidates, selected on
own merit, all of them will continue in the list
and there is no question of deleting the excess
woman candidates on the ground that “SC
women” have been selected in excess of the
prescribed internal quota of four.)
10. In this case, the number of candidates to be selected
under general category (open competition), were 59, out of
which 11 were earmarked for women. When the first 59
from among the 261 successful candidates were taken and
listed as per merit, it contained 11 woman candidates,
which was equal to the quota for “general category
women”. There was thus no need for any further selection
of woman candidates under the special reservation for
women. But what RPSC did was to take only the first 48
candidates in the order of merit (which contained 11
women) and thereafter, fill the next 11 posts under the
general category with woman candidates. As a result, we
find that among 59 general category candidates in all 22
women have been selected consisting of eleven woman
candidates selected on their own merit (candidates at Sl.
Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the selection
list) and another eleven (candidates at Sl. Nos. 54, 61, 62,
63, 66, 74, 75, 77, 78, 79 and 80 of the selection list)
included under reservation quota for “general category
women”. This is clearly impermissible. The process of
selections made by RPSC amounts to treating the 20%
reservation for women as a vertical reservation, instead of
being a horizontal reservation within the vertical
reservation.
11. Similarly, we find that in regard to 24 posts for OBC,
19 candidates were selected by RPSC in accordance with
merit from among OBC candidates which included three
woman candidates. Thereafter, another five women were
selected under the category of “OBC women”, instead of
adding only two which was the shortfall. Thus there were
26
in all 8 women candidates among the 24 OBC candidates
found in the selection list. The proper course was to list 24
OBC candidates as per the merit and then find out number
of woman candidates among them, and only fill the
shortfall to make up the quota of five for women.”
(emphasis supplied)
E) In K. Krishna Murthy (Dr.) and others vs. Union of India
and another
18
, a Constitution Bench of this Court observed that
seats earmarked for women belonging to the General Category are
not accounted for, if one has to gauge whether the upper ceiling of
50% has been breached. The observations were as under:-
“44. With respect to the State legislations under challenge,
it was argued that the 50% ceiling would not be crossed
under most of them since it is only the vertical
reservations (i.e. on communal lines in favour of
SCs/STs/OBCs) that are taken into consideration for this
purpose. Even though there is a 33% reservation in favour
of women in elected local bodies, the same is in the nature
of a horizontal reservation which intersects with the
vertical reservations in favour of SCs/STs/OBCs. In such a
scenario, the seats occupied by women belonging to the
general category cannot be computed for the purpose of
ascertaining whether the 50% upper ceiling has been
breached.
… … …
64. In the absence of explicit constitutional guidance as to
the quantum of reservation in favour of backward classes
in local self-government, the rule of thumb is that of
proportionate reservation. However, we must lay stress on
the fact that the upper ceiling of 50% (quantitative
limitation) with respect to vertical reservations in favour
of SCs/STs/OBCs should not be breached. On the question
of breaching this upper ceiling, the arguments made by the
petitioners were a little misconceived since they had
accounted for vertical reservations in favour of
SCs/STs/OBCs as well as horizontal reservations in favour
of women to assert that the 50% ceiling had been breached
18 (2010) 7 SCC 202
27
in some of the States. This was clearly a misunderstanding
of the position since the horizontal reservations in favour
of women are meant to intersect with the vertical
reservations in favour of SCs/STs/OBCs, since one-third
of the seats reserved for the latter categories are to be
reserved for women belonging to the same. This means
that seats earmarked for women belonging to the general
category are not accounted for if one has to gauge whether
the upper ceiling of 50% has been breached.”
F) In Public Service Commission, Uttaranchal etc. vs. Mamta
Bisht and others
19
, the view taken by the High Court that one Neetu
Joshi, on her own merit, was entitled to be considered in General
category and as such she could not be counted against seats reserved
for “Uttaranchal Mahila” category; was under challenge. A bench of
two Judges of this Court set aside the view taken by the High Court
with following observations:-
“3. Out of 42 posts, 26 were filled up by general category
and 16 by reserved category candidates. Some women
candidates stood selected in the general category while
others had been given the benefit of horizontal reservation
being residents of Uttaranchal. Respondent 1, being
aggrieved preferred Writ Petition No. 780 of 2003 (M/B)
in the High Court of Uttaranchal seeking quashment of
select list dated 31-7-2003 mainly on the ground that
women candidates belonging to Uttaranchal had secured
marks making them eligible to be selected in the general
category and had it been done so, Respondent 1 could
have been selected in the reserved category being a
woman of Uttaranchal. It had also been pleaded in the
petition that some of the women candidates who not only
claimed the benefit of horizontal reservation but have been
selected giving the said benefit, did not submit their
respective certificate of domicile at the time of filling up
the application forms but they produced the said certificate
at a later stage and it was accepted.
19 (2010) 12 SCC 204
28
4. The High Court accepted the first submission of
Respondent 1 after examining the record of selection and
came to the conclusion that the last selected woman
candidate who was given the benefit of horizontal
reservation for Uttaranchal women had secured marks
higher than the last selected candidate in the general
category. Thus, the said candidate ought to have been
appointed against the general category vacancy and
Respondent 1 ought to have been offered the appointment
giving her the benefit of horizontal reservation for
Uttaranchal women. Hence, these appeals.
… … …
13. In fact, the High Court allowed the writ petition only
on the ground that the horizontal reservation is also to be
applied as vertical reservation in favour of reserved
category candidates (social) as it held as under:
“In view of the above, Neetu Joshi (Sl. No. 9,
Roll No. 12320) has wrongly been counted by
Respondent 3/Commission against five seats
reserved for Uttaranchal Women General
Category as she has competed on her own merit
as general candidate and as the fifth candidate
the petitioner should have been counted for
Uttaranchal Women General Category seats.”
Admittedly, the said Neetu Joshi has not been impleaded
as a respondent. It has been stated at the Bar that an
application for impleadment had been filed but there is
nothing on record to show that the said application had
ever been allowed. Attempt had been made to implead
some successful candidates before this Court but those
applications stood rejected by this Court.
14. The view taken by the High Court on application of
horizontal reservation is contrary to the law laid down by
this Court in Rajesh Kumar Daria v. Rajasthan Public
Service Commission
14
, wherein dealing with a similar
issue this Court held as under: (SCC pp. 790-91, para 9)
“9. The second relates to the difference between
the nature of vertical reservation and horizontal
reservation. Social reservations in favour of
SCs, STs and OBCs under Article 16(4) are
‘vertical reservations’. Special reservations in
favour of physically handicapped, women, etc.
29
under Articles 16(1) or 15(3) are ‘horizontal
reservations’. Where a vertical reservation is
made in favour of a Backward Class under
Article 16(4), the candidates belonging to such
Backward Class, may compete for non-reserved
posts and if they are appointed to the non-
reserved posts on their own merit, their number
will not be counted against the quota reserved
for respective Backward Class. Therefore, if the
number of SC candidates, who by their own
merit, get selected to open competition
vacancies, equals or even exceeds the
percentage of posts reserved for SC candidates,
it cannot be said that the reservation quota for
SCs has been filled. The entire reservation
quota will be intact and available in addition to
those selected under open competition category.
(Vide Indra Sawhney
11
, R.K. Sabharwal v. State
of Punjab
15
, Union of India v. Virpal Singh
Chauhan
16
and Ritesh R. Sah v. Dr. Y.L.
Yamul
17
.) But the aforesaid principle applicable
to vertical (social) reservations will not apply
to horizontal (special) reservations. Where a
special reservation for women is provided
within the social reservation for Scheduled
Castes, the proper procedure is first to fill up
the quota for Scheduled Castes in order of merit
and then find out the number of candidates
among them who belong to the special
reservation group of ‘Scheduled Caste women’.
If the number of women in such list is equal to
or more than the number of special reservation
quota, then there is no need for further
selection towards the special reservation quota.
Only if there is any shortfall, the requisite
number of Scheduled Caste women shall have
to be taken by deleting the corresponding
number of candidates from the bottom of the
list relating to Scheduled Castes. To this extent,
horizontal (special) reservation differs from
vertical (social) reservation. Thus women
selected on merit within the vertical reservation
quota will be counted against the horizontal
reservation for women.”
(emphasis added)
15. In view of the above, it is evident that the judgment
and order of the High Court is not in consonance with the
30
law laid down by this Court in Rajesh Kumar Daria
14
. The
judgment and order impugned herein is liable to be set
aside and all the consequential orders become
unenforceable and inconsequential. Thus, the appeals
succeed and are allowed. The judgment and order of the
High Court dated 26-10-2005 passed in Writ Petition No.
780 of 2003 (M/B) is hereby set aside. No costs.”
19. Paragraph 9 of Rajesh Kumar Daria etc. vs. Rajasthan Public
Service Commission and others
14
referred to the well-established
principle that a candidate belonging to any of the vertical reservation
categories, on the basis of his own merit, is entitled to be selected in the
Open or General Category and in such eventuality his selection is not to
be counted against the quota reserved for such vertical reservation
category. We may for the sake of clarity reproduce the following extract
from the decision in Ritesh R. Sah vs. Dr. Y.L. Yamul and Others
17
which
noted the larger Bench decisions in Indra Sawhney vs. Union of India
11
and R. K. Sabharwal vs. State of Punjab
15
and stated:-
“13. There cannot be any dispute with the proposition that
if a candidate is entitled to be admitted on the basis of his
own merit then such admission should not be counted
against the quota reserved for Scheduled Caste or
Scheduled Tribe or any other reserved category since that
will be against the constitutional mandate enshrined in
Article 16(4).
14. In a case Indra Sawhney v. Union of India
11
commonly
known as Mandal case, this Court held thus: (SCC p. 735,
para 811)
“In this connection it is well to remember that
the reservations under Article 16(4) do not
operate like a communal reservation. It may
well happen that some members belonging to,
31
say, Scheduled Castes get selected in the open
competition field on the basis of their own
merit; they will not be counted against the
quota reserved for Scheduled Castes; they will
be treated as open competition candidates.”
15. In R.K. Sabharwal v. State of Punjab
15
the Constitution
Bench of this Court considered the question of
appointment and promotion and roster points vis-à-vis
reservation and held thus: (SCC p. 750, para 4)
“When a percentage of reservation is fixed in
respect of a particular cadre and the roster
indicates the reserve points, it has to be taken
that the posts shown at the reserve points are
to be filled from amongst the members of
reserve categories and the candidates
belonging to the general category are not
entitled to be considered for the reserved posts.
On the other hand the reserve category
candidates can compete for the non-reserve
posts and in the event of their appointment to
the said posts their number cannot be added
and taken into consideration for working out
the percentage of reservation. Article 16(4) of
the Constitution of India permits the State
Government to make any provision for the
reservation of appointments or posts in favour
of any Backward Class of citizens which, in
the opinion of the State is not adequately
represented in the Services under the State. It
is, therefore, incumbent on the State
Government to reach a conclusion that the
Backward Class/Classes for which the
reservation is made is not adequately
represented in the State Services. While doing
so the State Government may take the total
population of a particular Backward Class and
its representation in the State Services. When
the State Government after doing the
necessary exercise makes the reservation and
provides the extent of percentage of posts to be
reserved for the said Backward Class then the
percentage has to be followed strictly. The
prescribed percentage cannot be varied or
changed simply because some of the members
of the Backward Class have already been
appointed/promoted against the general seats.
32
As mentioned above the roster point which is
reserved for a Backward Class has to be filled
by way of appointment/promotion of the
member of the said class. No general category
candidate can be appointed against a slot in the
roster which is reserved for the Backward
Class. The fact that considerable number of
members of a Backward Class have been
appointed/promoted against general seats in
the State Services may be a relevant factor for
the State Government to review the question
of continuing reservation for the said class but
so long as the instructions/rules providing
certain percentage of reservations for the
Backward Classes are operative the same have
to be followed. Despite any number of
appointees/promotees belonging to the
Backward Classes against the general category
posts the given percentage has to be provided
in addition.”
16. In Union of India v. Virpal Singh Chauhan
16
(SCC at p.
705) it has been held that while determining the number of
posts reserved for Scheduled Castes and Scheduled Tribes,
the candidates belonging to reserved category but
selected/promoted on the rule of merit (and not by virtue
of rule of reservation) shall not be counted as reserved
category candidates.”
20. None of the decisions referred to hereinabove however had an
occasion to consider whether the principle as stated in decisions referred
to in the preceding paragraph also apply to cases of horizontal reservation.
We may, at this stage, consider some of the decisions by High Courts,
which dealt with this question:-
A) In Megha Shetty vs. State of Rajasthan
20
, following
observations were made by the High Court of Rajasthan:-
20 2013 (4) RLW 3227 (Raj.)
33
“21. …Once the horizontal reservation in favour of
woman in general/open category is to be applied, the
candidates belonging to all categories, including SC, ST
and OBC, are also entitled to be considered against the
said posts reserved for General Category (Woman).
23. In the present case, it is evident from a bare look at the
part of Advertisement (Annexure-3) that 13 posts were
reserved for OBC category. From the result-sheet
(Annexure-4) it is seen that out of 42 unserved seats, 4
women candidates found place and, therefore, they were
counted against the horizontal reservation provided for
woman and thereafter, 9 more women candidates in order
of their merit were selected which included candidates
belonging to General as well as OBC Category. It is also
noticed that in the main list, 3 women candidates
belonging to OBC (Woman) found place on their own
merits and after taking 9 candidates against General
(Woman) Category which included OBC (Woman) also,
further reservation has not been provided qua 2 posts
despite the fact that 5 posts were reserved for OBC
(Woman), which clearly shows that the horizontal
reservation was correctly applied.
24. The plea sought to be raised by the appellant regarding
impermissibility for migration from OBC (Woman) to
General (Woman) in case of special reservation
under Article 15(3) of the Constitution of India also
apparently has no applicability in the present case,
inasmuch as, once the candidate belonging to OBC
(Woman) category has obtained more marks than a
candidate belonging to the General (Woman) category
and, therefore, finds place in the select list meant for
General (Woman), the same cannot even be termed as
migration and, therefore, the plea raised in this regard is
without any substance …”
A-1)The aforesaid decision was followed in Neelam Sharma
vs. State of Rajasthan and Ors.
21
by the same High Court as under:-
“6. The Division Bench of this High Court at Jodhpur
in Smt. Megha Shetty vs. State of Rajasthan 2014 Volume
(1) WLC (Rajasthan) 761 has already dealt with exactly
the same issue raised in the present bunch of appeals. The
Division Bench relying upon the above-referred decisions
of the Supreme Court has held that in the event of woman
candidate belonging to OBC category on securing more
21 2015 SCC OnLine Raj 1391
34
marks than the woman candidate of general category finds
a position in the select list of candidates of general
category, the same cannot be treated as migration. And this
decision of the Division Bench is binding on us with
which we also fully agree. It is also to be noted that none
of the writ petitioners/respondents herein who are women
of general category has secured more marks than the
women candidate of OBC category selected in open
category. The select list of women candidates prepared by
the Rajasthan Public Service Commission is strictly in
accordance with the law explained by the Supreme
Court….”
Special Leave Petition No. 4312 of 2016 arising therefrom was
dismissed by this Court on 13.05.2016 with following observations:-
“Application seeking exemption from filing official
translation is allowed. We find no infirmity in the order
impugned herein. The Special Leave Petition is
dismissed.”
B) In Asha Ramnath Gholap vs. The President, District
Selection Committee/Collector
22
, the High Court of Bombay
considered the issue as under:-
“30. We find the argument advanced as above to be
fallacious. Once it is held that general category or open
category takes in its sweep all candidates belonging to all
categories irrespective of their caste, class or community
or tribe, it is irrelevant whether the reservation provided is
vertical or horizontal. There cannot be two interpretations
of the words `open category'; one applicable for vertical
reservation and other for horizontal reservation.
Reservation prescribed may be `vertical' or `horizontal' if
it relates to open category, the candidate belonging to
backward class cannot be precluded from competing for
the said posts on their own merit with rest of the
candidates.
… ……
22 2016 SCC OnLine Bom 1623
35
32. … It is thus evident that when three posts were
notified to be filled in by the female candidates belonging
to open category, it was open for the petitioner to
compete for the said post irrespective of the fact that she
belongs to the reserved category and when she had
secured meritorious position amongst the female
candidates and had secured 2nd highest marks, her
selection could not have been denied by the respondents
on the ground that she belongs to scheduled caste and does
not fall in the open category…. ”
B-1)In Kanchan Vishwanath Jagtap vs. Maharashtra
Administrative Tribunal, Nagpur and others
23
, the High Court
held:-
“We are of the view that if the view of the learned
Tribunal is accepted, then it would result in a situation to
exist, which is not permissible in view of the law laid
down by the Constitution Bench of the Apex Court in the
case of Indra Sawhney
11
. Merely because all the
meritorious candidates in the women category belonged to
the reserved categories like OBC, SC and ST, in our view
cannot be a ground to deny them the benefit of their
meritorious position. We find that if the view as accepted
by the learned Tribunal is accepted, it will defeat
constitutional mandate as explained in the judgment in the
case of Indra Sawhney
11
by the Constitution Bench of the
Apex Court. A situation would exist that a male candidate
belonging to a reserved category would be entitled to be
selected against an open category post if he is entitled on
his own merit. However, a female candidate belonging to a
reserved category, even though she is much more
meritorious than a candidate belonging to open category
women, would not be entitled to be selected against the
said post. The said situation in effect would result in
permitting a discriminatory treatment to the women
reserved candidates as against the male reserved
candidates. We find that such a situation is not permissible
under the Constitutional scheme as interpreted by the
Constitution Bench of the Apex Court in the case of Indra
Sawhney
11
.”
23 (2016) 1 Mah. L.J. 934
36
B-2)In Tejaswini Raghunath Galande vs. Chariman,
Maharashtra Public Service Commission, Mumbai and others
24
,
the High Court set out the facts as under:-
“The learned Tribunal relying on the judgement of the
Hon’ble Apex Court in case of Rajesh Kumar Daria vs.
Rajasthan Public Service Commission and ors.
14
, held
that the action of the respondent No.1-MPSC in respect of
the applicant, who belong to N.T.(C.) category, in not
permitting the applicant to apply from the quota against
‘Open Women Category’ could not be faulted with and as
such the learned Tribunal had rejected the Original
Application. Being aggrieved by the said order, the
present petition is filed.”
Following the view taken in Asha Ramnath Gholap
22
and
Kanchan Vishwanath Jagtap
23
, the High Court allowed the petition
and set aside the order of the Tribunal.
B-3)In Charushila vs. State of Maharashtra
25
, the submissions
of the Advocate General for the State were recorded as under :-
“13. The learned Advocate General also submits that there
is no separate category in law, recognized as “open
category”. Firstly, irrespective of their colour i.e. category,
in case of education, all the seats and in case of
employment all the posts, as the case may be, are to be
taken together. From and out of the same, the reserved
posts/seats are to be taken out and what is left behind is
commonly known as ‘open category’ or ‘open competition
category’ seats.
14. According to him, a reserved category candidate,
irrespective of whether he/she claims such reservation, as
24 (2019) 4 Mah L.J. 527
25 2019 SCC OnLine Bom 1519
37
and by way of vertical or horizontal, is always entitled to
claim seat from open category on the basis of his/her
merit. This is particularly because, the open category or
quota as such, is meant for being allotted only and only on
merit and, therefore, in such an allotment, the caste, creed
or sex or any other criteria, relating to any candidate, does
not at all matter.
15. The learned Advocate General further submits that in
case a candidate belonging to any reserved category is
able to secure allotment of seat, solely on the basis of
his/her merit and merit alone, such allotment cannot
consume any seat, reserved for the category to which such
a candidate belongs. In such a case, such an allotment,
does not, in any manner, diminish the seats or the posts as
the case may be, reserved for the category to which such
candidate belongs.
18. He also submits that however, even in case of
‘compartmentalized’ horizontal reservations, seats that are
allotted to the open category or quota, can be claimed by
everybody and anybody who is entitled to basically claim
a seat or post as the case may be, from the open category,
which will obviously and of course, include each and
every candidate, from the merit list of the open category
i.e. all the candidates even belonging to any reserved
category whichever, vertical or horizontal.”
Accepting the submissions of the State, the High Court
concluded:-
“33. So far as the horizontal reservation is concerned, a
different procedure has been prescribed, which is recorded
in the above noted paragraph. In the event of short fall
only, after perusal of the merit list, such short fall in
horizontal reservation category shall be met by deleting
requisite number of candidates from the respective
reserved categories and by substituting them from the
same category. Thus, the horizontal reservation category
candidate selected on the basis of merit within the vertical
reservation quota, will have to be counted against the
horizontal reservation category.
… … …
38
41. Even in case of compartmentalized horizontal
reservations, the seats that are allotted to open category or
quota, can be claimed by anybody and everybody, who is
entitled to claim a seat or post on the basis of merit, which
will include candidates even belonging to open category
i.e. all candidates even belonging to any reserved category
whichever, horizontal or vertical. However, the only
exception can be carved out, as has been stipulated in the
judgment of the Hon'ble Supreme Court that if the
applicable rule or the advertisement specifically provide to
the contrary, such migration shall not be permitted from
the reserved category to the open category for claiming
compartmentalized reservation provided for open
category. Those candidates belonging to reserved category,
who have already enjoyed the benefits during the process
of selection, such as concession in fees, relaxation of age,
relaxation in the merit criteria, would not be eligible to
claim benefits of migration from reserved category to open
category for claiming a seat or post.”
B-4)In Shantabai Laxman Doiphode vs. State of
Maharashtra
26
, the High Court held:-
“……However, in view of the law laid down by the Apex
Court in various judicial pronouncements and discussed in
aforestated cases, it is clear that inspite of the petitioner
choosing to be selected to a post reserved for N.T.(D.)
category, the petitioner still could legitimately stake her
claim to post available under the open category and not
only that she could do so also to a post horizontally
reserved for women in the open category. In the present
case, there is no dispute about the fact that from amongst
the three short listed women candidates, the petitioner had
secured second highest marks after the top scorer, Smt.
Priya Naresh Gajbhiye. While Smt. Priya Naresh
Gajbhiye, a S.C. candidate, was selected, on the basis of
her merit, for one of the two posts reserved for open
(women) category, the petitioner though eligible in view of
the settled position of law, was not for the other post. The
ground given for selecting Smt. Priya Naresh Gajbhiye
and rejecting the petitioner was that though Smt. Priya
Naresh Gajbhiye belonged to S.C. category, she had opted
26 (2020) SCC OnLine Bom 1659
39
for open category while the petitioner had not. This
ground is not tenable in law as we have seen from the
judgments discussed earlier.”
C) In Uttarakhand Subordinate Service Selection
Commission and Another vs. Ranjita Rana and Another
27
, the
High Court of Uttarakhand relied upon its earlier decision in Sudhir
Kumar vs. State of Uttarakhand and others
28
and observed:-
“11. The effect of horizontal reservation, being provided
under each category, is that it is only women, who belong
to the Other Backward Classes, who can compete for posts
reserved for Other Backward Classes (Women) and not
women who belong to the Scheduled Castes, the
Scheduled Tribes and the unreserved category. Likewise, it
is only women belonging to the Scheduled Castes and the
Scheduled Tribes who can compete for posts horizontally
reserved in favour of Scheduled Castes (Women) and
Scheduled Tribes (Women). A woman, not belonging to
the reserved category (OBC, SC and ST), is not entitled to
compete for posts reserved in favour of Other Backward
Classes (Women), Scheduled Castes (Women) and
Scheduled Tribes (Women).
12. The converse, however, is not true. All women,
irrespective of whether they belong, or do not belong, to
the reserved category are entitled to compete for posts
earmarked in favour of women under the General
Category. There is no reservation for posts in the General
Category, and horizontal reservation in favour of women
in the General Category is available to be filled up from
amongst all women irrespective of their caste status. Posts,
reserved in favour of General Category (Women), are
available for all women from the State of Uttarakhand, and
that would include women belonging to the reserved
categories such as OBCs, SCs and STs, and women who
do not. Holding otherwise, would result in surreptitious
introduction of reservation in favour of those who do not
belong to the socially and educationally backward classes,
and a disguised attempt at communal reservation frowned
27 2019 SCC OnLine Utt 481
28 Writ Petition (S/B) No.392 of 2017 dated 11.12.2018
40
upon by the Supreme Court in The State of Madras Vs.
Sm. Champakam Dorairajan and another : AIR 1951 SC
226. This question is no longer res integra and has, in fact,
been answered by a Division Bench of this Court in Sudhir
Kumar Vs. State of Uttarakhand and others (order in Writ
Petition (S/B) No. 392 of 2017 dated 11.12.2018), which
order was affirmed by the Supreme Court in its order in
Special Leave to Appeal (C) No. 7801 of 2019 dated
15.04.2019.”
D) In Tamannaben Ashokbhai Desai vs. Shital Amrutlal
Nishar
29
, the High Court of Gujarat considered the decisions on the
point including some of those rendered by the High Courts of
Rajasthan, Bombay and Uttarakhand as stated above and observed as
under:-
“45. The above referred case law can be better explained
by way of the following illustration based on the factual
position obtaining in the present case.
46. There are 115 posts of Police Inspector (unarmed), out
of which 55 posts are reserved for the SC, ST and SEBC
and remaining 60 posts for open/general category. Out of
the said posts, 33% are reserved for women under each
category, meaning thereby, out of 60 posts in the open
category, 20 posts are reserved for women. Thus, the first
step would be that of preparing the entire list on the basis
of merit and out of the same, selecting first 60 candidates,
irrespective of their caste and sex, in open category. The
second step would be then of evaluating as to whether 20
women, irrespective of their caste, are there within those
60 candidates, so as to meet with the requirement of
horizontal reservation. If 20 women are already there, then
there is no need to select any more woman in that
category, but if not, then in the third step, the remaining
number of women have to be included on the basis of the
merit from the aforesaid list, irrespective of their caste,
29 R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc.
decided on 05.08.2020
41
while deleting the corresponding number of male
candidates from the bottom of the list of first 60
candidates. Thereafter, identical exercise is required to be
undertaken for implementing vertical reservation,
followed by horizontal reservation, with respect to the
posts belonging to the SEBC, SC and ST categories.
…… …
49. It is pertinent to note that Rule 2(d) seeks to carve out
a fourth category of posts, not being posts reserved in
favour of the Scheduled Castes, Scheduled Tribes and
Socially and Educationally Backward Classes. In other
words, this fourth category is nothing but an Open
category of posts, excluding the posts reserved in favour
of the above referred classes i.e. the posts reserved for
women in open category would be over and above the
posts reserved for women in SC, ST and SEBC quota, as
referred to in Rule 2(a), 2(b) and 2(c) of the said Rules.
Thus, all the meritorious candidates, whether belonging to
the reserved category or unreserved category, will be
covered by the category, irrespective of their caste,
community or tribe where merit alone will be taken into
account, while implementing vertical reservation as well
as horizontal reservation within the same. It may be noted
that by virtue of the Gujarat Civil Services (Reservation of
Posts for Women) (Amendment) Rules, 2014, the
requirement of reservation in favour of women came to be
enhanced from 30% to 33%.
50. In view of the aforesaid discussion, we have no
hesitation in arriving to the conclusion that the
Government Resolution dated 01.08.2018 of the GAD
deserves to be quashed and set aside, and is hereby
quashed and set aside.”
The High Court then laid down:-
“56. 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
IMPLEMETING HORIZONTAL RESERVATION FOR
WOMEN.
42
No. of posts available for recruitment. ..... 100
Social Reservation quota (49%)
Open Competition (OC) ..... 51
Scheduled Caste (SC ) ..... 12
Scheduled Tribe (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.
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
43
down the Step 1 List after item no. 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 list becomes final.
Step 4: Move over to SCs. From the Step 1 List, after
item no. 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 no. 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, 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.”
57. The State Government as well as the GPSC shall, for
all times to come, bear in mind that the effect of horizontal
reservation, being provided under each category, is that it
44
is only women, who belong to the Other Backward
Classes, who can compete for the posts reserved for Other
Backward Classes (Women) and not women who belong
to the Scheduled Castes, the Scheduled Tribes and the
unreserved category. Likewise, it is only women belonging
to the Scheduled Castes and the Scheduled Tribes who can
compete for the posts horizontally reserved in favour of
Scheduled Castes (Women) and Scheduled Tribes
(Women). A woman, not belonging to the reserved
category (OBC, SC and ST), is not entitled to compete for
posts reserved in favour of Other Backward Classes
(Women), Scheduled Castes (Women) and Scheduled
Tribes (Women).
58. The converse, however, is not true. All women,
irrespective of whether they belong, or do not belong, to
the reserved category are entitled to compete for posts
earmarked in favour of women under the General
Category. There is no reservation for posts in the General
Category, and horizontal reservation in favour of women
in the General Category is available to be filled up from
amongst all women irrespective of their caste status. The
posts, reserved in favour of General Category (Women),
are available for all women from the State of Gujarat, and
that would include women belonging to the reserved
categories such as OBCs, SCs and STs, and women who
do not. Holding otherwise, would result in surreptitious
introduction of reservation in favour of those who do not
belong to the socially and educationally backward classes,
and a disguised attempt at communal reservation has been
frowned upon by the Supreme Court in The State of
Madras Vs. Sm. Champakam Dorairajan and another :
AIR 1951 SC 226.”
21.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 paragraphs
9 to 11 hereinabove, the Full Bench of the High Court of Allahabad in
Ajay Kumar vs. State of U.P. and others
30
held:-
30 (2019) 5 ALJ 466
45
“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.”
The High Court of Madhya Pradesh has also adopted a view similar
to that taken by the High Court of Allahabad. In State of Madhya
Pradesh and another vs. Uday Sisode and others
31
, the High Court
referred to the decision of this Court in Public Service Commission,
Uttaranchal vs. Mamta Bisht
19
and observed:-
“18. In the above judgment the High Court had held that
since the last selected candidate receiving the benefit of
horizontal reservation had secured more marks than the
last selected general category candidate, therefore, she
ought to have been appointed against the vacancy in
general category. The Hon'ble Supreme Court has found
this view of the High Court contrary to the law laid down
in the case of Rajesh Kumar Daria.
14
Same is the position
in the present case wherein OBC police personnel
receiving the benefit of horizontal compartmentalised
reservation is claiming the appointment on the ground that
he has secured more marks than the last selected general
category candidate, but this can not be accepted in view of
above judgment.
19. The issue relating to the appointment of physically
handicapped persons [horizontal (social) reservation]
against the seat of Open General Category on the basis of
higher marks had earlier come up before the Division
Bench of this Court at Gwalior in WA No. 414/2017 and
the Division Bench had held it to be impermissible by
holding that the concept of migration from one category to
another on the basis of merit may hold good in vertical
reservation, but in horizontal reservation the same is not
applicable. In this regard the Division Bench has held as
under:—
31 (2019) SCC OnLine MP 5750
46
“9. The question is whether a candidate who opts to
take up a competitive examination not as a General
Category/Unreserved category but as a reserved
category candidate belonging to SC/ST/OBC, as the
case may be, thus competing amongst the candidates
of his category, if obtains marks higher than
obtained by the candidates of a General Category
can be permitted to incurs in the General Category.
In other words, whether a candidate having opted to
participate in a competitive examination as a
reserved category candidate can be permitted to
migrate to General Category?
10. In Indra Swahney v. Union of India, 1992 Supp
(3) SCC 217 (Paragraph 812), it has been observed
—
“812. xxxxxxxxxxxxxxxx
11. Thus, when a reservation is horizontal, then the
candidate selected on the basis of reservation in any
category has to be fixed in said category and cannot
be allowed to migrate to other category. The concept
of migrating from one category to another on the
basis of merit may hold good in vertical reservation
but in horizontal reservation the same is not
applicable.
12. In Rajesh Kumar Daria v. Rajasthan Public
Service Commission, (2007) 8 SCC 785 : AIR 2007
SC 3127, it has been held—
“7-8. Xxxxxxxxxxxxxxxxxxxxxx
13. The impugned judgment when tested on the
anvil of the above analysis cannot be faulted with as
would warrant any interference. However, we are of
the considered opinion, in the given facts of the case
that there being no malafides on the part of the
Commission in causing migration, no case is made
out by the petitioners (respondents no. 1, 2 and 3)
for imposing cost of Rs. 25,000/- payable in favour
of each of the petitioners therein. We therefore set
aside the cost imposed.”
47
20. In the present case the aforesaid judgment of the
Division Bench was not brought to the notice when Writ
Appeal was decided by judgment under review, and a
different view has been taken which renders the judgment
under review per incurium.
21. In the present case learned Single Judge has placed
reliance upon the judgment in the case of Jitendra Kumar
Singh v. State of U.P.
32
and in the matter of Deepa
E.V. v. Union of India
33
but these judgments relate to
migration of SC, ST, OBC candidates to open category in
case of vertical reservation. These are not the cases where
horizontal reservation candidate has been permitted to take
appointment against open category seat on the basis of
their marks.”
22.The principle that candidates belonging to any of the vertical
reservation categories are entitled to be selected in “Open or General
Category” is well settled. It is also well accepted that if such candidates
belonging to reserved categories are entitled to be selected on the basis
of their own merit, their selection cannot be counted against the quota
reserved for the categories for vertical reservation that they belong.
Apart from the extracts from the decisions of this Court in Indra
Sawhney
11
and R. K. Sabharwal
15
the observations by the Constitution
Bench of this Court in Shri V.V. Giri vs. Dippala Suri Dora and
Others
34
, though in the context of election law, are quite noteworthy.
“21. … In our opinion, the true position is that a member
of a Scheduled Caste or Tribe does not forego his right to
32 (2010) 3 SCC 119
33 (2017) 12 SCC 680
34 (1960) 1 SCR 426
48
seek election to the general seat merely because he avails
himself of the additional concession of the reserved seat
by making the prescribed declaration for that purpose. The
claim of eligibility for the reserved seat does not exclude
the claim for the general seat; it is an additional claim; and
both the claims have to be decided on the basis that there
is one election from the double-member constituency.
22. In this connection we may refer by way of analogy to
the provisions made in some educational institutions and
universities whereby in addition to the prizes and
scholarships awarded on general competition amongst all
the candidates, some prizes and scholarships are reserved
for candidates belonging to backward communities. In
such cases, though the backward candidates may try for
the reserved prizes and scholarships, they are not
precluded from claiming the general prizes and
scholarships by competition with the rest of the
candidates.”
23. 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 paragraph 18 of the decision in Anil Kumar Gupta and Others
13
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
49
own categories under the concerned vertical reservation and not against
the “Open or General Category”.
24.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.
50
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 than those coming from any of the
categories for whom vertical reservation is provided.
25.The second view may lead to a situation where, while making
adjustment for horizontal reservation in Open or General Category seats,
less meritorious candidates may be adjusted, as has happened in the
present matter. Admittedly, the last selected candidates in Open General
51
female category while making adjustment of horizontal reservation had
secured lesser marks than the Applicants. The claim of the Applicants
was disregarded on the ground that they could claim only and only if
there was a vacancy or chance for them to be accommodated in their
respective column of vertical reservation.
26.Both the views can be compared and the issues involved in this
matter can be considered in the light of a hypothetical illustration with
following assumptions: -
(i)The total seats available are 100; comprising of 50 seats for
‘Open/General Category’. The reservation for Scheduled
Castes, Scheduled Tribes and Other Backward Classes is at
20%, 10% and 20% respectively and all candidates from
these reserved categories are otherwise eligible to be
considered against Open General Category.
(ii)The percentage of seats available for ‘Women’ by way of
compartmentalized horizontal reservation is 30%.
(iii)Out of all qualified candidates, when first 50 meritorious
candidates are picked up to fill up the seats for
‘Open/General Category’:-
52
(a)There are only 11 women in first 50 candidates in
‘Open/General Category’; and
(b)the last five persons in the ‘Open/General Category’
viz., the candidates at Serial Nos.46, 47, 48, 49 and 50
are–
Sl. No. 46 - Open Category - Male
Sl. No 47 - Open Category - Male
Sl. No. 48- Scheduled Caste -Male
Sl. No. 49- Scheduled Caste -Male
Sl. No. 50- Scheduled Caste -Female
(c) first four female candidates in the waiting list, who do
not belong to any of the reserved categories, are
having overall merit position at Serial Nos. 52, 64, 87
and 88.
(d)Going by the steps indicated in paragraph 18 of the
decision in Anil Kumar Gupta and Others
13
, at the
stage of filling up seats for Scheduled Castes
Category, there are 7 females among 20 candidates
53
with last 2 candidates being females whose overall
ranking in the merit list is at Serial Nos. 80 and 86.
(e)Similarly, the seats for Scheduled Tribes and Other
Backward Categories are filled up.
(f) Out of 20 candidates selected in Other Backward
Category there are 09 females.
The basic features of this illustration can be put in the following
tabular format.
TOTAL SEATS : 100
CATEGORIES OPEN/
GENERAL
SCHEDULED
CASTES
SCHEDULED
TRIBES
OTHER
BACKWARD
CLASSES
SEATS
AVAILABLE
50 20 10 20
MINIMUM
SEATS FOR
WOMEN
15 6 3 6
SEATS
OCCUPIED BY
WOMEN
BEFORE
APPLICATION
OF
HORIZANTAL
RESERVATION
11 7 3 9
SHORTFALL, IF
ANY
4 NIL NIL NIL
27. Having allocated first 50 seats in Open General Category and
filled up other vertical column of reservation, the next step is to effect
54
horizontal reservation for women. If the reservation for women was to be
“overall horizontal reservation”, there are 30 women (11+07+03+09)
and nothing further is required to be done.
However, if the horizontal reservation for women is to be taken as
“compartmentalized”, as we are concerned in the present matter and the
instant illustration, the appropriate steps must comprise of following:-
(A) Since the shortfall for women is of four seats in Open /
General Category, last four male candidates namely those at
Serial Nos. 46, 47, 48 and 49 initially allocated to
Open/General Category, will have to be displaced. The
candidate at Serial No. 50, being a woman, cannot be
displaced.
(B) The male candidates at Serial Nos.46 and 47 being from
Open/General Category, after such displacement will be
completely out of reckoning as they cannot go to any
reserved category.
(C) The candidates at Serial Nos.48 and 49 being more
meritorious than the candidates originally placed in the
vertical column of reservation for Scheduled Castes, must
go back to their own vertical column. This will cause
55
resultant displacement of two candidates in that vertical
column of reservation. The 20
th
candidate, whose overall
merit position is at Serial No.86, though a female, but being
in excess of quota for Scheduled Castes females and a male
candidate immediately above the 19
th
candidate will thus get
displaced.
27.1 If we go by the second view, the female candidates at Serial
Nos.52, 64, 87 and 88 must be accommodated against Open General
Category seats whereas the candidate at Serial No.86, though more
meritorious then those at Serial Nos.87 and 88, must be left without any
seat.
On the other hand, if we go by the first view, the claim of reserved
category candidates if they are more meritorious, has to be considered, in
which case the candidate at Serial No.86 will be required to be
accommodated. Resultantly, the candidate at Serial No.88 must give
way.
There can be various such permutations and combinations and in a
given case, the concerned female candidates from reserved category in
the Waiting List for their respective vertical columns of reservation, may
be more meritorious than the female candidates in the Waiting List for
56
Open / General Category seats. The instant illustration is given to
highlight the situation that can possibly emerge if the second view is
adopted.
28.The second view, based on adoption of a different principle at the
stage of horizontal reservation as against one accepted to be a settled
principle for vertical reservation, may thus lead to situations where a less
meritorious candidate, not belonging to any of the reserved categories,
may get selected in preference to a more meritorious candidate coming
from a reserved category. This incongruity, according to the second
view, must be accepted because of certain observations of this Court in
Anil Kumar Gupta and Others
13
and Rajesh Kumar Daria
14
. The
following sentences from these two decisions are relied upon in support
of the second view:-
“But if it is not so satisfied, the requisite number of
special reservation candidates shall have to be taken and
adjusted/accommodated against their respective social
reservation categories by deleting the corresponding
number of candidates therefrom.” [from paragraph 18 of
Anil Kumar Gupta
13
]
“But the aforesaid principle applicable to vertical (social)
reservations will not apply to horizontal (special)
reservations.” [from paragraph 9 of Rajesh Kumar
Daria
14
]
57
29. These sentences are taken to be a mandate that at the stage of
horizontal reservation the candidates must be adjusted /accommodated
against their respective categories by deleting corresponding number of
candidates from such categories and that the principle applicable for
vertical (social reservation) will not apply to horizontal (special
reservation). In our view, these sentences cannot be taken as a declaration
supporting the second view and are certainly being picked out of context.
The observations in paragraph 18 in Anil Kumar Gupta and
Others
13
contemplated a situation where if “special reservation
candidates” entitled to horizontal reservation are to be adjusted in a
vertical column meant for “social reservation”, the corresponding number
of candidates from such “social reservation category” ought to be deleted.
It did not postulate that at the stage of making “special or horizontal
reservation” a candidate belonging to any of the “social reservation
categories” cannot be considered in Open/General Category. It is true that
if the consideration for accommodation at horizontal reservation stage is
only with regard to the concerned vertical reservation or social reservation
category, the candidates belonging to that category alone must be
considered. For example, if horizontal reservation is to be applied with
regard to any of the categories of Scheduled Castes, Scheduled Tribes or
Other Backward Classes, only those candidates answering that description
58
alone can be considered at the stage of horizontal reservation. But it is
completely different thing to say that if at the stage of horizontal
reservation, accommodation is to be considered against Open/General
seats, the candidates coming from any of the reserved categories who are
more meritorious must be side-lined. That was never the intent of the
observations sought to be relied upon in support of the second view.
Similarly, the observations in Rajesh Kumar Daria
14
were in the
context of emphasizing a distinguishing feature between vertical and
horizontal reservations; in that:-
(a)At the stage of vertical reservation, the reserved category
candidates selected in Open/General category are not to be
counted while filling up seats earmarked for the corresponding
reserved categories.
(b)But the same principle of not counting the concerned selected
candidates is not to apply for horizontal reservation.
Adopting principle (a) at the stage of horizontal reservation,
the respondents in Rajesh Kumar Daria
14
had separately
allocated 11 seats for women in General Category as part of
special or horizontal reservation, though another set of 11
59
women candidates had got selected, according to their own
merit, in General Category quota. The quota of 11 seats for
women having been already satisfied, this Court negated the
theory that their number be disregarded while making
horizontal reservation for women. It was in that context that the
distinction between vertical and horizontal reservations was
highlighted by this Court in paragraph 9 of the decision. The
subsequent sentence “thus women selected on merit within the
vertical reservation quota will be counted against the
horizontal reservation for women” in the very same paragraph
and the illustration given thereafter are absolutely clear on the
point.
30.The decision of this Court in Public Service Commission,
Uttaranchal vs. Mamta Bisht
19
was also completely misunderstood. In
that case one Neetu Joshi had secured a seat in General Category on her
own merit and she also answered the category of horizontal reservation
earmarked for “Uttaranchal Mahila”. The attempt on part of Mamta
Bisht, the original writ petitioner, was to submit that said Neetu Joshi
having been appointed on her own merit in General Category, the seat
meant for “Uttaranchal Mahila” category had to be filled up by other
60
candidates. In essence, what was projected was the same stand taken by
the respondents in Rajesh Kumar Daria
14
, which was expressly rejected
in that case. It is for this reason that para 15 of the decision in Public
Service Commission, Uttaranchal vs. Mamta Bisht
19
expressly returned
a finding that the judgment rendered by the High Court in accepting the
claim of Mamta Bisht was not in consonance with law laid down in
Rajesh Kumar Daria
14
and the appeal was allowed. This decision is thus
not of any help or assistance in support of the second view.
31.The second view is thus neither based on any authoritative
pronouncement by this Court nor does it lead to a situation where the
merit is given precedence. Subject to any permissible reservations i.e.
either Social (Vertical) or Special (Horizontal), opportunities to public
employment and selection of candidates must purely be based on merit.
Any selection which results in candidates getting selected against
Open/General category with less merit than the other available candidates
will certainly be opposed to principles of equality. There can be special
dispensation when it comes to candidates being considered against seats
or quota meant for reserved categories and in theory it is possible that a
more meritorious candidate coming from Open/General category may not
get selected. But the converse can never be true and will be opposed to
61
the very basic principles which have all the while been accepted by this
Court. Any view or process of interpretation which will lead to
incongruity as highlighted earlier, must be rejected.
32.The second view will thus not only lead to irrational results where
more meritorious candidates may possibly get sidelined as indicated
above but will, of necessity, result in acceptance of a postulate that Open /
General seats are reserved for candidates other than those coming from
vertical reservation categories. Such view will be completely opposed to
the long line of decisions of this Court.
33. 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.
34.It must be stated here that the submissions advanced by the
Advocate General for Uttar Pradesh as recorded in the order dated
16.03.2016 before the Single Judge of the High Court (quoted in
paragraph 9 hereinabove) were absolutely correct. The Single Judge and
the Division Bench of the High Court completely erred in rejecting the
stand taken on behalf of the State. It appears that after such rejection, the
Procedure laid down for completing the recruitment exercise as referred to
62
in the order dated 22.02.2019 passed by the Division Bench of the High
Court (quoted hereinabove in paragraph 11) had stated in step 4.1 that
candidate not belonging to Scheduled Castes, Scheduled Tribes and Other
Backward Classes category alone would be considered against general
category. Said Procedure and especially step 4.1 was erroneous but was
perhaps guided by the declaration issued by the High Court earlier. On the
other hand, the stand taken by the Advocate General for Maharashtra as
recorded by the High Court of Bombay in Charushila vs. State of
Maharashtra
25
was correct.
35.We must also clarify at this stage that it is not disputed that the
Applicant no.1 and other similarly situated candidates are otherwise
entitled and eligible to be appointed in ‘Open/General Category’ and that
they have not taken or availed of any special benefit which may disentitle
them from being considered against ‘Open/General Category’ seat. The
entire discussion and analysis in the present case is, therefore, from said
perspective.
36.Finally, we must say that the steps indicated by the High Court of
Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai
29
contemplate the correct and appropriate procedure for considering and
giving effect to both vertical and horizontal reservations. The illustration
63
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 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 concerned authorities 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.
37.Having come to the conclusion that the Appellant No.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:-
64
a)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.
b)Appropriate letters in that behalf shall be sent to the
concerned candidates within four weeks.
c)If the concerned candidates exercise their option and accept
the offer of employment, communications in that behalf
shall be sent by the concerned candidates within two weeks.
d)On receipt of such acceptance, the codal and other
formalities shall be completed within three weeks.
e)Letters of appointment shall thereafter be issued within a
week and the concerned candidates shall be given
appropriate postings.
f) 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.
g) The employment of General Category Females with cut off
at 274.8928 as indicated by the State Government in its
65
affidavits referred to in paragraphs 5 and 8 hereinabove are
not to be affected in any manner merely because of this
judgment.
38.Since it has been accepted that none of the candidates coming
from ‘SC Female Category’ had secured more marks than 274.8298, the
claims of the Applicant no.2 and all similarly situated candidates are
rejected.
39.Miscellaneous Application No. 2641 of 2019 and IA No.25611 of
2019 are allowed to the aforesaid extent.
Writ Petition (Civil)No. 237 of 2020
40.This Writ Petition under Article 32 has been filed by 14 female
candidates pertaining to the same selection praying for following
principal relief:-
“A.Issue an appropriate writ, order or direction in the
nature of mandamus directing the Respondents to
absorb/select the petitioners as against the 375 unfilled
vacancies.”
41.None of these petitioners had secured marks more than 274.8298
and as such, their case cannot be considered at par with that of Applicant
no.1 – Ms. Sonam Tomar and other similarly situated candidates as
discussed hereinabove.
66
42.If there are unfilled vacancies, it is upto the authorities to act
purely in terms of the concerned statutory provisions. 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 concerned authorities
to absorb the petitioners against unfilled vacancies.
43.This Writ Petition is, therefore, without any merit and is
dismissed.
……………………….J.
[Uday Umesh Lalit]
……………………….J.
[S. Ravindra Bhat]
……………………….J.
[Hrishikesh Roy]
New Delhi;
December 18, 2020.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO. 2641 OF 2019
IN
SPECIAL LEAVE PETITION (CIVIL) NO. 23223 OF 2018
SAURAV YADAV & ORS. ...PETITIONER (S)
VERSUS
STATE OF UTTAR PRADESH & ORS. ...RESPONDENT(S)
WITH
W.P.(C) NO. 237 OF 2020
J U D G M E N T
S. RAVINDRA BHAT, J.
1.I am in agreement with the judgment and conclusions of Justice Lalit, and
endorse them fully. I am also of the opinion that the views expressed by the
Rajasthan High Court (Megha Shetty v State of Rajasthan
1
, Neelam Sharma v
State of Rajasthan
2
); Gujarat High Court (in Tamannaben Ashokbhai Desai v
Shital Amrutlal Nishar
3
), the Bombay High Court (in Asha Ramnath Gholap v
The President, District Selection Commission/Collector,
4
Kanchan Vishwanath
Jagtap & Anr v Maharastra Administrative Tribunal & Ors,
5
Tejaswini
Raghunath Golande v Chairman, Maharastra Public Services Commission
12013 (4) RLW
22015 SCC (Online) Raj 139
3R/LPA NO. 1910 in R/Special Civil. App No. 18968/2018 decided on 5.8.2020
42016 SCC Online Bom 1623
52016 Mah. LJ 934
2
Mumbai & Ors
6
, Charushila v State of Maharashtra,
7
Shantabai Laxman
Doiphode v State of Maharashtra
8
) and Uttarakhand High Court (in
Uttarakhand Subordinate Service Selection Commission v Ranjita Rana
9
) -
termed as “the first view” in Lalit, J’s judgment, is the correct one, and should
be endorsed, and that the view expressed by the Allahabad and Madhya Pradesh
(in Ajay Kumar v. State of UP & Ors.
10
and State of Madhya Pradesh & Anr. v.
Uday Sisode & Ors.
11
) – called by Justice Lalit as the “second view” about the
nature of the horizontal reservation for women, and the mechanism spelt out (by
those judgments) to fill them, are not in accord with the previous judgments of
this Court. I propose to, however, add a few reasons of my own and are in no
way opposed to the views expressed by Justice Lalit.
2.This judgment is the third in sequence, and deals with a recruitment, for
the post of Constable (Civil) and Provincial Armed Constable (PAC). The first
one was delivered on 19.01.2016.
12
It dealt with the results and exclusion of
candidates who had used whiteners and blades, while attempting the selection
test. This court had in that judgment, held that such applicants’ candidature
could not have been rejected. The second judgment, dated 27.11.2018
13
this
court directed as follows:
“Therefore, total number of candidates who could be selected in
the selection relatable to the year 2011 in any case ought not to be
less than 4010+1022. Status and identity of the candidates who
form the group of 1022 candidates is very clear. In this context it
is to be noted that the vacancies notified are only approximate and
there is nothing wrong if the number increases in the exigencies of
service.
29. We now come to the issue as to what should be the approach
in respect of vacant posts on two counts. The tabular chart then
62019 Mah. LJ 527
72019 SCC Online Bom 1519
82020 SCC Online Bom 1639
92019 SCC Online Utt. 481
10(2019) 5 ALJ 466.
11(2019) SCC OnLine MP 5750
12InHanumantDutt Shukla v State of UP 2018 (16) SCC 447
13CA No.11370/2018 (Alok Kr. Singh & Others v. State of U.P. & Others)
3
states that 226 posts remained unfilled as a result of non-
availability of candidates in the category of dependents of
freedom fighters etc. and 607 posts are lying vacant as a result of
candidates who discontinued training or did not qualify in
medical examination/character verification. Theoretically, 226
unfilled posts ought to be carried forward for further selection as
those posts were earmarked for dependents of freedom fighters.”
3.The controversy that arises in the present round of litigation is the correct
method of filling the quota reserved for women candidates (“horizontal quota”).
It is the complaint of the applicants, who are largely women, belonging to the
Other Backward Class categories, that the state has not correctly applied the
rule of reservation, and denied such OBC women candidates the benefit of
“migration”, i.e. adjustment in the general category vacancies.
4.The U.P. Public Services (Reservation for Physically Handicapped,
Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereafter “the
1993 Act”) provided for reservations to persons with disability, ex-servicemen
and dependents of freedom fighters. The U.P. Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 is
the comprehensive law, enacted by the state of UP providing for reservation for
social categories (SC/ST/OBCs). The provisions of the 1993 Act (for persons
with disabilities, ex-servicemen and dependents of freedom fighters [“DFF”
hereafter”]) clearly stated by Section 3 (3) that
“(3) The persons selected against the vacancies reserved under
subsection (1) shall be placed in the appropriate categories to
which they belong. For example, if a selected person belongs to
Scheduled Castes category he will be placed in that quota by
making necessary adjustments; if he belongs to Scheduled Tribes
category, he will be placed in that quota by making necessary
adjustments; if he belongs to Other Backward Class of Citizens,
category, he will be placed in that quota by making necessary
adjustments. Similarly. if he belongs to open competition category,
he will be placed in that category by making necessary
adjustments.”
4
It is thus apparent that the reservations under the 1993 Act were “horizontal” in
nature.
5.The quota provided for women, as well as dependents of freedom fighters
(DFF) and ex-servicemen, in the present case are characterized as ‘horizontal’
whereas the quotas for social groups (SCs, STs, OBCs) are characterized as
‘vertical’. The coining of this differential terminology is underscored by the fact
that the latter is sanctioned explicitly in Article 16(4), whereas the former is
evolved through a process of permissible classification (Articles 14, 16(1)),
although such horizontal reservations have been located additionally in Article
15(3)
14
.
6.In the State of UP, there is no law or rule (framed under proviso to Article
309 of the Constitution) that mandates reservation for women. However, a
Government Order was issued, applicable to all posts, on 26.2.1999. The
government order (GO) issued by the government of Uttar Pradesh (UP) order
providing for horizontal reservation for women, dated 26.02.1999, is extracted
below.
15
“No-14/1/9/Ka-2/4
Personnel Section-2 Lucknow, dated 26 February 1999
From,
Shri. Sudhir Kumar,
Secretary,
Government of Uttar Pradesh.
To,
1 - All Principal Secretaries / Secretaries, Government of Uttar Pradesh.
2- All Head of the Department / Head of Office, Uttar Pradesh.
3- All Divisional / District Magistrate, Uttar Pradesh.
Subject: Reservation for women on the process of direct recruitment to
public services and posts under the state.
14See Government of Andhra Pradesh v P.B. Vijay Kumar 1995 (4) SCC 520 (this court held that “Making
special provisions for women in respect of employment or posts under the State is an integral part of Article 15
(3). This power conferred under Article 15 (3), is not whittled down in any manner by Article 16.)”
15Extracted from Sunaina Tripathi v. State of UP &Ors., (2012) 3 ADJ 463.
5
Sir,
I have been directed to inform that the Government has decided to
provide 20 percent reservation for women on the process of direct
recruitment to state public services and posts subject to the following
conditions:
1.Reservation will be applicable to the process of direct
recruitment to public services and posts under the state. There
will be no promotion posts.
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;
3.If a woman is selected on the basis of merit in any state
public service and post, her selection will be against the
vacancy reserved for women in that category.
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;
5.The qualifications required for women for direct recruitment
to the posts on the services under the state, will continue to be
in accordance with the pre-existing requirements mentioned in
the relevant recruitment rules and there will be no change in
the position on account of this rule.
6.Public services and posts refer to public services and posts
as defined in the Uttar Pradesh Public Service Reservation Act
for Scheduled Castes, Scheduled Tribes and Other Backward
Classes.
Please take steps to ensure compliance with the above orders of
the Government. You are also requested to inform all the
officers subordinate to the Government are made aware of this
order.
Yours
Sudhir Kumar
Secretary”
6
7.As is apparent from a plain reading of the above government order, the
only stipulation with respect to treatment of horizontal reservation for women,
is that in case a woman candidate is selected, she would be adjusted against the
appropriate social category she belongs to (SC/ST/OBC/OC). However, there is
no rule, or direction which prohibits the adjustment of socially reserved
categories of women in the general category or “open category”. The first
indication of this is in Indira Sawhney
16
where B.P. Jeevan Reddy, J stated as
follows:
“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 (1). 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 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 not to continue that
procedure."
8.This rule was affirmed and applied in Anil Kumar Gupta v State of UP
17
,
Swati Gupta v State of UP
18
and Jitendra Kumar Singh v State of UP
19
and
Rajesh Kumar Daria v Rajasthan Public Service Commission
20
. The manner of
filling the horizontal reservation category and the vertical, social categories, was
explained in Rajesh Kumar Daria (supra) in the following terms:
“Social reservations in favour of SC, ST and OBC under Article
16 (4) are 'vertical reservations'. Special reservations in favour of
physically handicapped, women etc., under Articles 16(1) or 15(3)
are 'horizontal reservations'. Where a vertical reservation is made
in favour of a backward class under Article 16 (4), the candidates
16Indira Sawhney v Union of India 1992 Supp (3) SCC 766, @ para 812 (SCC Reports)]
171995 (5) SCC 173
181995 (2) SCC 560
192010 (3) SCC 119
202007 (8) SCC 785
7
belonging to such backward class, may compete for non-reserved
posts and if they are appointed to the non-reserved posts on their
own merit, their numbers will not be counted against the quota
reserved for the respective backward class. Therefore, if the
number of SC candidates, who by their own merit, get selected to
open competition vacancies, equals or even exceeds the
percentage of posts reserved for SC candidates, it cannot be said
the reservation quota for SCs has been filled. The entire
reservation quota will be intact and available in addition to those
selected under Open Competition category. [Vide Indira Sawhney,
R. K. Sabharwal vs. State of Punjab, Union of India v Virpal
Singh Chauvan and Ritesh R. Shah v Dr. Y.L Yamul. But the
aforesaid principle applicable to vertical (social) reservations will
not apply to horizontal (special) reservations. Where a special
reservation for women is provided within the social reservation
for Scheduled Castes, the proper procedure is first to fill up the
quota for scheduled castes in order of merit and then find out the
number of candidates among them who belong to the special
reservation group of 'Scheduled Castes-Women'. If the number of
women in such list is equal to or more than the number of special
reservation quota, then there is no need for further selection
towards the special reservation quota. Only if there is any
shortfall, the requisite number of scheduled caste women shall
have to be taken by deleting the corresponding number of
candidates from the bottom of the list relating to Scheduled
Castes. To this extent, horizontal (special) reservation differs from
vertical (social) reservation. Thus women selected on merit within
the vertical reservation quota will be counted against the
horizontal reservation for women.”
9. The features of vertical reservations are:
(i)They cannot be filled by the open category, or categories of candidates
other than those specified and have to be filled by candidates of the
concerned social category only (SC/ST/OBC);
(ii)Mobility (‘migration’) from the reserved (specified category) to the
unreserved (open category) slot is possible, based on meritorious
performance;
(iii)In case of migration from reserved to open category, the vacancy in
the reserved category should be filled by another person from the
same specified category, lower in rank,
8
(iv)If the vacancies cannot be filled by the specified categories due to
shortfall of candidates, the vacancies are to be ‘carried forward’ or
dealt with appropriately by rules.
10.Horizontal reservations on the other hand, by their nature, are not
inviolate pools or carved in stone. They are premised on their overlaps and are
‘interlocking’ reservations
21
. As a sequel, they are to be calculated concurrently
and along with the inviolate ‘vertical’ (or “social”) reservation quotas, by
application of the various steps laid out with clarity in paragraph 11 of Justice
Lalit’s judgement. They cannot be carried forward. The first rule that applies to
filling horizontal reservation quotas is one of adjustment, i.e. examining
whether on merit any of the horizontal categories are adjusted in the merit list in
the open category, and then, in the quota for such horizontal category within the
particular specified/social reservation.
11.The open category is not a ‘quota’, but rather available to all women and
men alike. Similarly, as held in Rajesh Kumar Daria
22
, there is no quota for
men. If we are to accept the second view [as held by the Allahabad High Court
in Ajay Kumar v. State of UP
23
and the Madhya Pradesh High Court in State of
Madhya Pradesh & Anr. v. Uday Sisode & Ors
24
, referred to in paragraph 20 of
Justice Lalit’s judgement], the result would be confining the number of women
candidates, irrespective of their performance, in their social reservation
categories and therefore, destructive of logic and merit. The second view,
therefore – perhaps unconsciously supports- but definitely results in confining
the number of women in the select list to the overall numerical quota assured by
the rule.
12.In my opinion, the second view collapse completely, when more than the
stipulated percentage 20% (say, 40% or 50%) of women candidates figure in the
most meritorious category. The said second view in Ajay Kumar
25
and Uday
21The expression used by B.P Jeevan Reddy, J, in Indira Sawhney (Supra)
22 Supra n. 20
23 Supra n. 10
24 Supra n. 11
25 Supra n. 10
9
Sisode
26
thus penalizes merit. The principle of mobility or migration, upheld by
this court in Union of India v. Ramesh Ram
27
and other cases, would then have
discriminatory application, as it would apply for mobility of special category
men, but would not apply to the case of women in such special categories (as
glaringly evident from the facts of this case) to women who score equal to or
more than their counterparts in the open/ general category.
13.The judgments in Anil Kumar Gupta v State of UP
28
, Swati Gupta v State
of UP
29
, and Jitendra Kumar Singh v State of UP
30
, were decisions which arose
from recruitment cases concerning the state of UP. In fact in Jitendra Kumar
Singh
31
, the court even considered the question of validity of the horizontal
reservations in favour of women, as well as the Government Order of
26.2.1999. The latest in that series is a decision of this court in Anupal Singh v.
State of U.P
32
where the court had to consider, as one of the contentions raised,
the question similar to the one which arises for consideration in this case, i.e.
whether social category horizontal candidates can fill horizontal category
vacancies. The court recorded the facts and noticed the contentions of the
parties, in the following manner (para 62):
“62. The contention of the private respondents is that as per the
statutory requirement, the horizontal reserved vacancies were
unfilled and those unfilled vacancies of horizontal category were
filled by vertical reservation candidates/other category
candidates, which is in violation of the statutory provisions
vitiating the selection process. On behalf of the U.P. Public
Service Commission, Mr Shrish Kumar Misra, learned counsel
26 Supra n. 11
27(2009) 6 SCC 619, by a Constitution Bench of five judges, which took note of the judgment in Indira
Sawhney, where it was held that
“811. In this connection it is well to remember that the reservations under Article 16(4) do not
operate like a communal reservation. It may well happen that some members belonging to, say,
Scheduled Castes get selected in the open competition field on the basis of their own merit; they will
not be counted against the quota reserved for Scheduled Castes; they will be treated as open
competition candidates.”
28Supra n. 17
29Supra n. 18
30Supra n. 19
31 Supra n. 19
322020 (2) SCC 173
10
has furnished the details as to the number of vacancies reserved
for horizontal category and the number of candidates found
suitable and placed in the respective categories. The said details
are as under:
Category No. of
vacancies
No. of selected
candidates
Women 1325 156
Dependents of Freedom
Fighters
132 45
Ex-Servicemen 330 NIL
Partially blind 84 84
Partially deaf 84 57
One-arm 42 42
One-leg 42 42
On behalf of the U.P. Public Service Commission, it was submitted that one
of the policies of the State Government regarding horizontal reservation is
that, if the suitable candidates for filling the vacancies reserved for such
posts of horizontal reservation are not available and the same are not
carried forward; they are filled up by other suitable candidates from
amongst the candidates belonging to vertically reserved categories
according to their merit. It was submitted that unfilled horizontal reservation
vacancies were thus filled up by suitable candidates of respective vertical
categories according to their merit which is as per the policy of the
Government. The High Court was not right in finding fault with the filling up
of vacancies reserved for horizontal reservation with other candidates of
respective vertical reservation.”
Thereafter the court recorded its conclusions, in the following terms:
“84.6. The filling up of the unfilled horizontal reservation by the
candidates from the respective vertical reservation is in
accordance with the policy of the Government and the same
cannot be faulted with.”
14. In view of these clear decisions, it is too late in the day for the
respondent state to contend that women candidates who are entitled to benefit of
social category reservations, cannot fill open category vacancies. The said view
is starkly exposed as misconceived, because it would result in such women
candidates with less merit (in the open category) being selected, and those with
11
more merit than such selected candidates, (in the social/vertical reservation
category) being left out of selection.
15. I would conclude by saying that reservations, both vertical and
horizontal, are method of ensuring representation in public services. These are
not to be seen as rigid “slots”, where a candidate’s merit, which otherwise
entitles her to be shown in the open general category, is foreclosed, as the
consequence would be, if the state’s argument is accepted. Doing so, would
result in a communal reservation, where each social category is confined within
the extent of their reservation, thus negating merit. The open category is open to
all, and the only condition for a candidate to be shown in it is merit, regardless
of whether reservation benefit of either type is available to her or him.
16. I agree that all applications and WP 237/2020, pending before this court,
are to be disposed of in terms of the operative directions in Lalit, J’s judgment.
..........................................J.
[S. RAVINDRA BHAT]
New Delhi,
December 18, 2020.
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