As per case facts, a recruitment for Junior Engineer (Civil) Grade 2 included one UR (PWD-LV) post. Respondent No.1, a UR (PWD-LV) candidate, scored 55.667 marks, while Respondent No.3, an ...
2026 INSC 330 Page 1 of 39
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10262 OF 2025
THE WEST BENGAL STATE ELECTRICITY
TRANSMISSION CO.LTD
& ORS. ..APPELLANT (S)
VERSUS
DIPENDU BISWAS & ORS. ..RESPONDENT (S)
J U D G M E N T
NONGMEIKAPAM KOTISWAR SINGH, J.
1. The present appeal has been preferred against the
judgment and order dated 07.05.2024 passed by the
Division Bench of the High Court at Calcutta in MAT
Page 2 of 39
69/2024 with CAN 1 of 2024, whereby the order passed
by the Single Bench in WPA 26312/2023 was set aside.
2. The core issue involved in this appeal relates to
the manner of filling of a vacancy reserved for Person
with Disability with Low Vision (PWD-LV) in the
Unreserved category UR (PWD-LV)
1, where the
recruitment notification stipulated that in case of non-
availability of qualified unreserved candidate in the
PWD-LV category, the vacancy will be filled up by PWD
candidates of other categories as per merit.
3. By the impugned order, the Division Bench of the
Calcutta High Court held that when a qualified
unreserved PWD-LV candidate is available, the vacancy
is to be filled up by the qualified unreserved candidate
1
UR (PWD-LV): Unreserved (Persons with Disabilities – Low Vision or
Blindness)
Page 3 of 39
only, even though there may be more meritorious PWD-
LV candidates available in the reserved category of OBC-
A, as per of the aforesaid stipulation in the recruitment
notification.
4. In order to appreciate this issue involved, a brief
reference to the relevant facts would be apposite.
5. A recruitment process was initiated by the
Appellant, West Bengal State Electricity Transmission
Co. Ltd., for appointment to a number of posts vide
Notification No. REC/2023/01.
The said notification includes 30 vacancies for the
post of Junior Engineer (Civil) Grade II, out of which 1
(one) post was meant for unreserved UR (PWD-LV) and
5 (five) posts for Other Backward Classes-A (OBC-A)
2 as
follows.
2
OBC-A: Other Backward Class (Most Backward)
Page 4 of 39
Sl. Name of
the post
UR UR
(EC)
UR
(Ex.
S)
UR
(MS)
UR
(PWD-
LV)
UR
(PWD-
HH)
UR
(PW
D-D)
OBC-
A
OBC
-A
(EC)
OBC
-B
OBC
-EC
7. Junior
Engineer
(Civil)
Gr. II
7 4 1 1 1 0 0 5 1 1 1
SC
(EC)
SC
(EC)
SC (Ex-S) ST
(PWD
-LV)
ST
ST
(EC)
Total
33 2 1 1 1 0 30
There are also two notes below the table as follows:
* In case of non-availability of qualified UR (PWD-HH)
candidate, the vacancy will be filled by PWD candidates of
other categories as per merit.
# In case of non-availability of qualified UR (PWD-LV)
candidate, the vacancy will be filled by PWD candidates
of other categories as per merit.
6. The aforesaid advertisement shows that while
certain number of posts are reserved under various
social categories (vertical), there are reservations for
special categories (horizontal) for these social categories
also, that is, reservation within reservation.
Thus, 7 (seven) posts have been earmarked for the
Unreserved Category, and further, in the same
Unreserved Category, 4 (four) posts have been reserved
Page 5 of 39
for the special category of EC
3 and 1 (one) post each has
been reserved for the special categories of Ex-S
4, MS
5
and PWD-LV.
In respect of the social reservation (vertical)
category of OBC, it has been further sub-categorised into
OBC-A and OBC-B, and horizontal reservations have
also been provided for these two sub-categories.
Similarly, there are special (horizontal)
reservations in respect of SCs and STs, with which we
are not concerned in this case.
7. Thus, the aforesaid notification indicates both
vertical and horizontal reservations.
The horizontal reservation pattern in the aforesaid
notification indicates “compartmentalised reservations”,
3
EC : Exempted Category
4
Ex-S : Ex-Servicemen
5
MS: Meritorious Sportspersons
Page 6 of 39
not “overall reservations”, to use the terms described in
Anil Kumar Gupta Vs. State of U.P.
6, as referred to in
Saurav Yadav Vs. State of UP
7, where the posts
reserved for various categories of horizontal reservations
are distributed among the vertical social reservations.
8. In the present case, we are concerned with the
posts of UR (PWD-LV) and OBC-A.
The reservation chart, for our convenience, can be
shown as follows:
1. UR (PWD-LV) - 1 post
(to which the Respondent No.1 belongs)
2. OBC–A - 5 posts
(to which the Respondent No.3 belongs)
3. OBC-A (EC) - 1 post
4. OBC-A (PWD-LV) - Nil
(to which also the Respondent No. 3 belongs)
6
(1995) 5 SCC 173
7
(2021) 4 SCC 542
Page 7 of 39
9. While the Respondent No. 1 PWD-LV candidate
applied under the Unreserved category for the said post
of Junior Engineer (Civil) Grade-II under UR (PWD-LV)
quota, it appears the Respondent No. 3 (OBC-A
candidate) applied against the said 5 (Five) posts of
Junior Engineer (Civil) Grade-II under the OBC-A quota.
It may be noted that there was no horizontal
reservation for the PWD-LV under the OBC-A category
in the said notification. However, in his application, the
Respondent No. 3 also stated that he belongs to the PWD
(LV) category.
10. In the said recruitment process for the post of
Junior Engineer (Civil) Grade-II, the Respondent No.1
scored 55.667 marks, whereas, the Respondent No.3
scored 66.667 marks. Since the Respondent No.3 under
OBC-A category also belongs to PWD-LV category and
Page 8 of 39
obtained higher marks than the Respondent No.1, he
was offered appointment to the aforesaid Unreserved
post of UR(PWD-LV) and not Respondent No.1.
11. The said offer for appointment in favour of the
Respondent No. 3 was put to challenge by the
Respondent No. 1 before the High Court at Calcutta
through a writ petition, WPA 26312/2023 in view of the
aforesaid condition in the recruitment notification which
stipulated that in case of non-availability of qualified UR
(PWD-LV) candidate, the vacancy will be filled up by
PWD candidates of the other categories as per merit.
The Writ Court, however, after finding that the
Respondent No. 3 also belonged to the PWD-LV category
and had scored more marks than the Respondent No. 1,
dismissed the said writ petition, vide order dated
11.12.2023.
Page 9 of 39
12. Being aggrieved by the dismissal of the writ
petition, the Respondent No.1 preferred an intra-court
appeal before the Division Bench of the High Court of
Calcutta, which was registered as MAT 69 of 2024 with
CAN 1/2024.
13. The Division Bench of the High Court upon
consideration of the stipulation in the notification that
in case of non-availability of qualified UR (PWD-LV)
candidate, the vacancy will be filled by PWD candidates
of other categories as per merit, reversed the decision of
the Single Bench and allowed the appeal and directed
that since the Respondent No. 1, who is an unreserved
candidate was available, should be given appointment to
the said post under UR (PWD-LV).
14. The Division Bench of the High Court took the
view that considering the aforesaid condition in the
Page 10 of 39
recruitment notification, as there was already available
a qualified unreserved PWD-LV candidate in the person
of the Respondent No. 1, the said vacancy could not have
been filled up by any other PWD-LV candidate belonging
to other reserved categories and it should be filled up by
a PWD-LV candidate belonging to Unreserved category
only. According to the Division Bench, it is only when a
PWD-LV candidate belonging to the Unreserved category
is not available that a PWD-LV candidate belonging to
other reserved categories can be considered for
appointment.
15. We have perused the recruitment notification no.
REC/2023/01.
The notification mentions that “In case of non-
availability of qualified UR(PWD-LV) candidate, the
Page 11 of 39
vacancy will be filled up by PWD candidates of other
categories as per merit”.
The bone of contention between the contesting
parties is to be traced to the said condition which has
been understood differently by the Single Bench and
Division Bench of the High Court.
16. As mentioned above, there were 5 (five) posts
reserved for OBC-A category in the post of Junior
Engineer (Civil) Grade-II. The said 5 (five) posts reserved
for the OBC-A were filled by OBC-A candidates in order
of merit. The Respondent No. 3 though belonged to OBC-
A category was not appointed, as it appears that there
were more meritorious OBC-A candidates above him.
17. However, as the Respondent No. 3 also belonged
to the PWD-LV category, by virtue of his better merit
position than the Respondent No. 1, he was offered
Page 12 of 39
appointment by the appellant authority to the said 1
(one) Unreserved post of UR (PWD-LV).
18. This act of the appellant authority to appoint the
Respondent No. 3 in the post of UR (PWD-LV) was
questioned by the Respondent No.1 before the High
Court premised on the condition stipulated in the
recruitment notification referred to above, by contending
that since the Respondent No.1 was a qualified PWD-LV
under the Unreserved category, during his availability,
no other candidate from any other reserved category
could have been considered for appointment, and the
Respondent No.1 should have been given appointment.
This contention was dismissed by the Single Bench, but
accepted by the Division Bench of the High Court.
19. As we proceed to examine the implications of this
condition in the recruitment notification, we will revisit
Page 13 of 39
the law relating to reservation, particularly with
reference to filling up of unreserved vacancies by
reserved candidates.
20. In view of the multifaceted nature of reservation
in India, a unique service law jurisprudence spurred by
Constitutional mandate has emerged. Reservations have
been classified into two categories, namely, vertical and
horizontal, with respect to which certain judicial norms
have evolved through a series of landmark decisions.
The definitions and interrelationship between the two
kinds of reservations have been succinctly described in
the landmark case of Indra Sawhney Vs. Union of
India
8, in the following words,
“812. …..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
8
1992 Supp (3) SCC 217
Page 14 of 39
reservations cut across the vertical reservations - that is
called inter-locking 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 S.C. category he
will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open
competition (O.C.) 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…..”
21. In respect of vertical reservation, the social
reserved category posts are to be filled by the candidates
belonging to that social category only and not by others.
However, with reference to the Unreserved or Open
category posts, there is no such restrictions as it could
be filled up by anyone from any category and there could
be movement from one reserved category to the
Unreserved category based on merit, which is called
mobility in reservation. This movement from a reserved
category to the unreserved, however, will not affect the
quota for the reserved category. This principle has been
Page 15 of 39
indicated by this Court in Indra Sawhney
9 (supra) in
the following words,
“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.”
22. This legal position pertaining to social (vertical)
reservation, mobility and special (horizontal) reservation
has taken firm roots and has been restated in clear
terms in the case of Saurav Yadav v. State of U.P.,
10
as follows:
“59. The features of vertical reservations are:
59.1. 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 social category
concerned only (SC/ST/OBC).
59.2. Mobility (“migration”) from the reserved (specified
category) to the unreserved (open category) slot is possible,
based on meritorious performance.
59.3. 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.
59.4. 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.
60. Horizontal reservations on the other hand, by their
nature, are not inviolate pools or carved in stone. They are
9
(1992) Supp (3) 217
10
(2021) 4 SCC 542
Page 16 of 39
premised on their overlaps and are “interlocking”
reservations [ The expression used by B.P. Jeevan Reddy,
J., in Indra Sawhney v. Union of India, 1992 Supp (3) SCC
217: 1992 SCC (L&S) Supp 1.] . 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 para 21.3. 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 cate gory within the particular
specified/social reservation.
23. In the horizontal reservation there is also the
concept of overall reservation and compartmental
horizontal, which has been explained in Anil Kumar
Gupta
11 (supra) in the following manner:
“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
11
(1995) 5 SCC 173
Page 17 of 39
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) 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 happe n,
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.”
24. In the present case, though the reservation
pattern as indicated in the advertisement is of
compartmentalised reservation, it may not be necessary
to dwell on that aspect much further, as the issue
Page 18 of 39
involved in the present case is only about the mobility of
a PWD-LV candidate from a reserved category of OBC-A
to the Unreserved horizontal category of UR(PWD-LV).
25. In the present case, there is no horizontal
reservation for the PWD-LV category under the social
category of the OBC-A category, but there is a horizontal
reservation for the PWD-LV under the Unreserved or
Open category. The question that arises for
consideration is what should be the method of filling up
such horizontal reservation for PWD-LV, which falls
under the Unreserved or Open category.
26. The correct answer can be arrived at once we
understand the scope of reservation for a special
category (horizontal) of PWD-LV falling under the
Unreserved or Open category.
Page 19 of 39
For this, it is also necessary to understand the
meaning and scope of the “Unreserved” or “Open”
category of reservation.
27. In reservation law, it is well settled that
Unreserved/Open category does not refer to any
social/communal category like SCs, STs or OBCs. In
other words, any post falling under the Unreserved or
Open category does not pertain to any particular social
category; it provides an open field or pool meant for the
world at large, in the sense that it is open to all
candidates, irrespective of whether one belongs to any
social or special category or not.
28. In our view, when we talk of horizontal or special
reservation pertaining to the Unreserved category, a
similar position will prevail. This characteristic or
attribute of the Unreserved or Open category will
Page 20 of 39
continue to apply even under the horizontal/special
reservation, under the Unreserved category only with the
exception that it will be qualified by the nature of the
special category for which it is meant. In other words,
when the special (horizontal) reservation is applied to the
Unreserved/Open category, it will be open to all
candidates irrespective of the social category, provided
they are also endowed with the character of the same
special (horizontal) categorisation. Thus, a post
earmarked for special (horizontal) reservation under the
Unreserved category will be open to every candidate
possessing the attribute or character of the special
(horizontal) reservation.
29. The difference in the concept of Unreserved/Open
category in the vertical, and that in the horizontal
reservation under the Unreserved category is that, in
Page 21 of 39
respect of vertical reservation, the Unreserved/Open
quota does not belong to any of the social categories and
is open to all irrespective of the social categorisation. On
the other hand, with respect to the special (horizontal)
reservation under the Unreserved/Open category, it
means that, although it is also open to all social
categories, such a candidate must also belong to the
same special (horizontal) category.
30. Thus, if the Unreserved/Open post is meant for
the special category of Persons with Disabilities, it
means that the said post will be open to all candidates
of all vertical social categories, whether SC, ST or OBC,
provided such candidates are also Persons with
Disabilities. Thus, all candidates, whether SC, ST or
OBC, but who are Persons with Disabilities, are equally
entitled to compete for the post meant for Persons with
Page 22 of 39
Disabilities falling under the Unreserved category, the
rationale being that all those who are similarly situated
must be treated equally.
31. The principle of migration in reservation will be
applicable in this scenario also. Thus, even though there
are candidates under the Unreserved category who are
Persons with Disabilities, if there are more meritorious
candidates belonging to any of the social categories like
SC, ST or OBC who are also Persons with Disabilities,
such more meritorious persons from the SC, ST or OBC
category can be appointed against the Unreserved quota
meant for Person with Disabilities by virtue of merit.
32. This principle has been indicated by this Court in
Saurav Yadav
12 (supra) in para 60 therefore, wherein it
12
(2021) 4 SCC 542
Page 23 of 39
was held that 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 speci fied/social
reservation.
33. However, the vice versa will not be true. Thus, if a
post is reserved for Persons with Disabilities (PWD) for
the social category of OBC-A, only Persons with
Disabilities under the OBC-A category can apply, and no
other PWD candidates belonging to ST, SC, or
Unreserved category can be considered, since the
reservation is compartmentalised.
Page 24 of 39
34. Similarly, candidates belonging to other special
(horizontal) categories like PWD -HH
13 (Hearing
impairment) or Ex-Serviceman (Ex.S) or Exempted
Category (EC) will also not be eligible to apply for the
post meant for PWD-LV even if it is under the Unreserved
category, as the said Unreserved post is reserved for
PWD-LV category only, and not for other horizontal
categories like PWD-HH, Ex.S or EC. Thus, only those
qualified as PWD-LV can be considered.
35. In the present case, the Respondent No.3 though
belongs to OBC-A category also falls under PWD-LV
category of horizontal reservation. Since the post under
Unreserved category is reserved for PWD-LV category, the
Respondent No.3 has also the right to be considered for
appointment to the said post of PWD -LV under the
13
PWD-HH: Person with Disabilities (Hearing Impairment)
Page 25 of 39
Unreserved category. The Respondent No.3 can always
stake a claim for the said post by virtue of being in the
category of PWD-LV on the basis of merit. Similarly, had
there been any other SC or ST candidate who also belongs
to the PWD-LV category, he could have also been
considered for the post of UR (PWD-LV). But it appears
that there were no such PWD-LV candidates from other
social categories like SC or ST and even if so, were not
found meritorious enough to be considered.
36. The aforesaid principles have to be kept in mind
in understanding the implication of the aforesaid
condition in the recruitment notification, that in case of
non-availability of qualified UR (PWD-LV), the vacancy
will be filled up by other categories of PWD-LV as per
merit.
Page 26 of 39
37. This condition has to be read and understood in
consonance with and not contrary to the well-established
principles of law relating to appointment to Unreserved
posts and the law of migration to Unreserved posts.
38. Thus, this horizontally reserved post of PWD-LV
falling under the Unreserved category can be filled by any
PWD-LV candidate belonging to any social reserved
category, as this post of PWD-LV under the Unreserved
category is also open to all PWD-LV candidates belonging
to any social reserved category. In other words, any
candidate belonging to any social category can compete
for this post so long as they belong to the PWD-LV
category. The principle of mobility will also apply when
filling the said post of UR (PWD-LV).
39. This legal position is fortified by the other note
appended to the recruitment notification, which provides
Page 27 of 39
that in case of non-availability of a qualified UR (PWD-
HH) candidate, the vacancy will be filled by PWD
candidates of other categories as per merit. Since this
post of UR (PWD-HH) is reserved for the special category
of PWD-HH, all such candidates who are also categorised
as PWD with Hearing disability, belonging to any social
category can also apply.
40. It may also be noticed that even though there are
other horizontal reservations for categories like PWD-LV,
EC, Ex-Servicemen in respect of other social categories
like SC, ST and OBC-B in the recruitment notification, no
such stipulation is provided for these categories but only
for the Unreserved category. It is for this reason that, with
respect to compartmentalised horizontal reservation for
these social categories, there cannot be any adjustment
or migration from other social categories. Such vacancies
Page 28 of 39
have to be filled up by candidates in that particular social
category qualifying the specific horizontal category. On
the other hand, as long as any such horizontal
reservation is provided for the Unreserved category, it will
be open to all candidates who also belong to the same
special category of horizontal reservation.
41. The Division Bench of the Calcutta High Court,
however, has taken the view that this condition in the
recruitment notification prevents the filling up of the
vacancy in the UR (PWD-LV) category from any other
social category if a qualified unreserved candidate is
available.
This view is not in consonance with the principle
as discussed above. This view presupposes the fallacious
position that ‘Unreserved” category is another
Page 29 of 39
communal or social or special category as distinct from
other reserved categories. However, there is no
communal or social or special category under the
nomenclature “Unreserved”. It merely denotes the
remaining vacancies or percentages of posts available
after accounting the posts/percentages under different
reservation categories. The only condition attached to
this Unreserved/Open category in the present case is
that it is meant only for candidates belonging to the
horizontal PWD-LV category, i.e., it is specially reserved
for persons who are categorised as PWD-LV. The
Unreserved post/vacancy for PWD-LV is available and
open to all, irrespective of the social category they may
belong to, provided they also belong to the same special
category of PWD-LV. As the said post falls under the
Unreserved category, it is to be filled up purely on merit.
Page 30 of 39
Merit is the co-attendant and inseparable attribute of
appointment to any post under the “Unreserved”
category. As a consequence, every person belonging to
any social reserved category, can compete with others,
including those under the “Unreserved” category and
can be appointed against such Unreserved post, so long
as they belong to the special PWD-LV category, as it is
the condition that the post under the Unreserved
category is reserved for the horizontal category of PWD-
LV.
42. The individual status of such a reserved candidate
as regards his social /communal categorisation,
however, will remain unaffected for all other purposes.
For example, if any OBC/SC/ST candidate by virtue of
his merit is appointed to an Unreserved/Open post by
virtue of his merit, he will continue to remain in the
Page 31 of 39
OBC/ST/SC category as the case may be. He would not
lose his identity as OBC/SC/ST for all other purposes,
and this will also not affect the extent of reservation in
respect of his original reserved category.
43. Thus, what is stipulated in the recruitment
notification is merely stating the obvious. Certainly, if
there is no eligible and qualified unreserved candidate
available under PWD-LV category, this vacancy can be
filled by anyone belonging to any social reserved
category, but belonging to PWD-LV category. Thus, it
cannot be read to insist that so long as any PWD-LV
candidate under the Unreserved category is available,
there will be an absolute bar to consider any other
meritorious PWD-LV candidate belonging to any of the
social reserved categories and only such Unreserved
category PWD-LV candidate can be appointed
Page 32 of 39
irrespective of the merit. Such an interpretation, as
adopted by the Division Bench of the Calcutta High
Court, flies in the face of the well-settled principle of law
for filling up Unreserved posts and law of migration as
discussed above. If any Unreserved candidate (belonging
to PWD-LV) available, is found to be below in merit to
any other reserved candidate (belonging to PWD-LV),
such PWD-LV candidate belonging to the Unreserved
category cannot steal a march over the more meritorious
PWD-LV candidate from the reserved category as it
would defy the principle of merit, which is the sole
criterion for appointment under the Unreserved
category. Therefore, such less meritorious PWD-LV
candidate under the Unreserved category has to give way
to the claim of a more meritorious PWD-LV candidate
from any other reserved social categories for the said
Page 33 of 39
post of UR (PWD-LV), as was correctly held by the Single
Bench of the High Court. Any contrary view would be
patently arbitrary being opposed to the equality clause
under Articles 14 and 16 of the Constitution of India.
44. Therefore, in our considered opinion, what the
aforesaid condition in the recruitment notification would
mean is that even though qualified PWD-LV candidates
under the Unreserved category may be available, if there
is a PWD-LV candidate belonging to other social
reserved category available who is better in merit than
the Unreserved PWD-LV candidate available, the said
post is to be filled up by the more meritorious reserved
PWD-LV candidate by ignoring the claim of the less
meritorious Unreserved candidate by virtue of merit.
Qua a vacancy/post under “Unreserved” category for the
PWD-LV candidates, all PWD-LV candidates are equal
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and have similar rights even if they belong to different
social reserved categories, and the most meritorious
amongst them has to be preferred.
45. The aforesaid position results from the application
of the principle enumerated in Saurav Yadav’s
14 case
wherein this Court explained the manner in which
horizontal reservation is to be filled, under which it has
to be first examined whether on merit any of the
horizontal category can be adjusted in the open category,
and then in the quota of the horizontal category within
the particular social reservation. Thus, it has to be
ascertained whether the Respondent No. 3 can be
adjusted against the PWD-LV vacancy in the Unreserved
category by virtue of his merit, which has been done and
was adjusted, as he was more meritorious than anyone
14
(2021) 4 SCC 542
Page 35 of 39
else including the Respondent No. 1 in the Unreserved
category. The second situation of adjustment against the
horizontal category within the social category will not
arise in the present case, as there is no horizontal
reservation for the OBC-A category.
46. There is one more aspect of reservation law which
may be looked into when it relates to migration to the
Unreserved category.
Providing reservation of appointment for posts in
favour of any backward class of citizens is guaranteed
under Article 16 of the Constitution of India, and it has
also been well settled that the reservation is in the
nature of affirmative action and is not an exception to
the principle of equality. Such special provisions have
been made to provide an equitable setting to level up the
weaker sections so that the real or factual equality can
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be ensured and does not remain illusory as observed by
this Court in Neil Aurelio Nunes (OBC reservation) vs.
Union of India
15. Further in respect of reserved
categories, the law permits relaxation of certain
qualifications for appointment, however, subject to the
condition that such relaxation does not destroy the
essential standard requirements, for example, as
regards requirements relating to age or experience etc.
Such relaxations have been provided to enable such
classes to catch up with the rest of the society. Such
relaxation, however, will be confined for the purposes of
appointment within the reserved categories and cannot
be made applicable for appointment under
Unreserved/Open category for the reason is that in
respect of Unreserved/Open category, the essential
15
(2022) 4 SCC 1
Page 37 of 39
qualifications or conditions required for recruitment
must be equal in all respects and merit being the only
decisive factor.
47. Thus, a reserved PWD-LV candidate being offered
an appointment against an Unreserved PWD-LV
vacancy/post must not have availed any relaxation in
the eligibility criteria stipulated for the Unreserved PWD-
LV category. If he had availed such a relaxation, he
certainly cannot be considered to be a qualified
candidate qua the unreserved post, as has been
explained by this Court in Deepa E.V. vs. Union of
India
16, reiterated in Union of India vs. Sajib Roy
17.
48. In the present case, nothing has been brought to
our notice that the Respondent No. 3, though, was more
16
(2017) 12 SCC 680
17
2025 INSC 1084
Page 38 of 39
meritorious than the Respondent No. 1 had availed any
relaxation qua the essential qualifications for the said
post of UR (PWD-LV).
49. In view of the above discussion, it is clearly
evident that the Division Bench of the Calcutta High
Court had misunderstood the implication of the
aforesaid condition in the recruitment notification.
50. Consequently, for the reasons discussed above,
the appeal succeeds, and the impugned judgment and
order dated 07.05.2024 passed by the Division Bench of
the High Court of Calcutta in MAT 69/2024 with CAN 1
of 2024 is set aside, restoring the decision of the Single
Bench dated 11.12.2023.
The appeal is accordingly allowed.
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Pending application (s) if any, stands disposed of.
……………………………J.
(SANJAY KAROL )
….…………….…………………………J.
(NONGMEIKAPAM KOTISWAR SINGH)
NEW DELHI;
APRIL 07, 2026.
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