AI Structured Summary
Not yet generated for this judgment
No AI summary yet
Generate an eight-section analysis of this judgment — facts, issues, reasoning, ratio and a plain-language gist.
Judgment
504 paragraphs · 12,827 words,OC,OBC,SC,ST,
Male Cut off,313.616,307.233,283.4033,247.233 3,
Vertical
Reservation","Total
Vacancies",Horizontal Reservation Vacancies,,,
,,"Ex-
Serviceman
05%","DFF
02%","Home-
Guard
(only
for civil
police
& PAC
05%)","Female
(only
for civil
police)
20%
Open,20804,1040,416,988,3550
OBC,11235,562,225,534,1917
SC,8738,437,175,415,1491
ST,833,42,17,40,142
Total,41610,2081,833,1977,7100
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.)",,
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.,,,,,
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…â€. 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 Castesâ€. 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.,,,,,
It would have been better â€" and the respondents may note this for their future guidance â€" 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",,,,,
reservationâ€, since it appears from the judgment in Swati Gupta12 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 reservationâ€. 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 â€" 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.",,,,,
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 â€" in case it is an overall horizontal,,,,,
reservation â€" 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.â€",,,,,
(emphasis supplied),,,,,
D) In Rajesh Kumar Daria etc. vs. Rajasthan Public Service Commission and others (2007) 8 SCC 785, 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 “menâ€.",,,,,
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 reservationsâ€. Special",,,,,
reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are “horizontal reservationsâ€. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the",,,,,
candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective",,,,,
Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that",,,,,
the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney (1992) Supp (3) SCC 217R, .K. Sabharwal",,,,,
v. State of Punjab (1995) 2 SCC 745, Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and Ritesh R. Sah v. Dr. Y.L. Yamul (1996) 3 SCC 253.) But the aforesaid principle applicable to vertical (social) reservations will",,,,,
not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of",,,,,
merit and then find out the number of candidates among them who belong to the special reservation group of “Scheduled Caste womenâ€. 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 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.),,,,,
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 womenâ€. 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 womenâ€. 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.",,,,,
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 womenâ€, instead of adding only two which was the shortfall. Thus there were 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.â€",,,,,
(emphasis supplied),,,,,
E) In K. Krishna Murthy (Dr.) and others vs. Union of India and another (2010) 7 SCC 202 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.,,,,,
… … …,,,,,
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 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.â€,,,,,
F) In Public Service Commission, Uttaranchal etc. vs. Mamta Bisht and others (2010) 12 SCC 204 t,he 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.,,,,,
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.",,,,,
… … …,,,,,
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.â€,,,,,
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.,,,,,
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 (2007) 8 SCC 785, 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. under Articles 16(1) or 15(3) are ‘horizontal reservations’. Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the",,,,,
candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective",,,,,
Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that",,,,,
the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney (1992) Supp (3) SCC 217, R.K. Sabharwal",,,,,
v. State of Punjab (1995) 2 SCC 745, Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684and Ritesh R. Sah v. Dr. Y.L. Yamul (1996) 3 SCC 253.) But the aforesaid principle applicable to vertical (social) reservations will",,,,,
not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of",,,,,
merit and then find out the number of candidates among them who belong to the special reservation group of ‘Scheduled Caste women’. If the number of women in such list is equal to or more than the number of special,,,,,
reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding",,,,,
number of candidates from the bottom of the list relating to 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.â€,,,,,
(emphasis added),,,,,
In view of the above, it is evident that the judgment and order of the High Court is not in consonance with the 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.â€,,,,,
Paragraph 9 of Rajesh Kumar Daria etc. vs. Rajasthan Public Service Commission and others14 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 (1996) 3 SCC 253 which noted the larger Bench decisions in Indra Sawhney vs. Union of India (1992) Supp (3) SCC 217 and R.,,,,,
K. Sabharwal vs. State of Punjab (1995) 2 SCC 745 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).,,,,,
In a case Indra Sawhney v. Union of India (1992) Supp (3) SCC 217 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, 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.â€,,,,,
In R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 the Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-Ã -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.,,,,,
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.â€,,,,,
In Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684(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.â€,,,,,
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 2013 (4) RLW 3227 (Raj.), following observations were made by the High Court of Rajasthan:-",,,,,
“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).,,,,,
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.,,,,,
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 …â€",,,,,
A-1) The aforesaid decision was followed in Neelam Sharma vs. State of Rajasthan and Ors. 2015 SCC OnLine Raj 1391 by the same High Court as under:-,,,,,
“6. The Division Bench of this High Court at Jodhpur inS mt. Megha Shetty vs. State of Rajasthan 2014 Volume (1) WLC (Rajasthan) 76 1has 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 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….â€,,,,,
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.â€,,,,,
B) In Asha Ramnath Gholap vs. The President, District Selection Committee/Collector 2016 SCC OnLine Bom 1623, 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.",,,,,
… … …,,,,,
… 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…. â€,,,,,
B-1) In Kanchan Vishwanath Jagtap vs. Maharashtra Administrative Tribunal, Nagpur and others (2016) 1 Mah. L.J. 934, 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 (1992) Supp (3) SCC 217. 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 (1992) Supp (3) SCC",,,,,
217 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 (1992) Supp (3) SCC 217.â€,,,,,
B-2) In Tejaswini Raghunath Galande vs. Chariman, Maharashtra Public Service Commission, Mumbai and others (2019) 4 Mah L.J. 527, 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.â€",,,,,
Following the view taken in Asha Ramnath Gholap 2016 SCC OnLine Bom 1623 and Kanchan Vishwanath Jagtap (2016) 1 Mah. L.J. 934, the High Court allowed the petition and set aside the order of the Tribunal.",,,,,
B-3) In Charushila vs. State of Maharashtra 2019 SCC OnLine Bom 1519, 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 categoryâ€. 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.,,,,,
According to him, a reserved category candidate, irrespective of whether he/she claims such reservation, as 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.,,,,,
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.,,,,,
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.â€",,,,,
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.",,,,,
… … …,,,,,
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.â€",,,,,
B-4) In Shantabai Laxman Doiphode vs. State of Maharashtra (2020) SCC OnLine Bom 1659, 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 for open category while the petitioner had not. This ground",,,,,
is not tenable in law as we have seen from the judgments discussed earlier.â€,,,,,
C) In Uttarakhand Subordinate Service Selection Commission and Another vs. Ranjita Rana and Another 2019 SCC OnLine Utt 48, 1the High Court of Uttarakhand relied upon its earlier decision in Sudhir Kumar vs. State of",,,,,
Uttarakhand and others Writ Petition (S/B) No.392 of 2017 dated 11.12.2018 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).",,,,,
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",,,,,
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.â€,,,,,
D) In Tamannaben Ashokbhai Desai vs. Shital Amrutlal Nishar R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020, 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.,,,,,
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, 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.",,,,,
… … …,,,,,
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%.",,,,,
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.â€,,,,,
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.,,,,,
No. of posts available for recruitment.                                               ..... 100,,,,,
Social Reservation quota (49%),,,,,
Open Competition (OC) Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ..... 51,,,,,
Scheduled Caste (SC )Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ..... 12,,,,,
Scheduled Tribe (ST)                                                              …..17,,,,,
Socially and Educationally,,,,,
Backward Classes (SEBC) Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â .....20,,,,,
Horizontal Reservation for Women (33% in each of the above categories),,,,,
OC,,,,,
                                                                                        Â,,,,,
.....17,,,,,
SC,,,,,
                                                                                         Â,,,,,
….04,,,,,
ST,,,,,
                                                                                         Â,,,,,
….06,,,,,
SEBC Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â,,,,,
….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 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.â€,,,,,
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 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).",,,,,
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.â€,,,,,
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 (2019) 5 ALJ 466 held:-",,,,,
“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.â€,,,,,
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 (2019) SCC OnLine MP 5750, the High",,,,,
Court referred to the decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht19 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( 2007) 8 SCC 785. 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.",,,,,
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:â€",,,,,
“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?,,,,,
In Indra Swahney v. Union of India, 1992 Supp (3) SCC 217 (Paragraph 812), it has been observedâ€"",,,,,
“812. xxxxxxxxxxxxxxxx,,,,,
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.,,,,,
In Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 : AIR 2007 SC 3127, it has been heldâ€"",,,,,
“7-8. Xxxxxxxxxxxxxxxxxxxxxx,,,,,
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.â€,,,,,
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.,,,,,
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. (2010) 3 SCC 119 and in the matter of Deepa E.V. v. Union of India (2017) 12 SCC 680 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.â€,,,,,
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 (1992) Supp (3) SCC 217 and R. K. Sabharwal (1995) 2 SCC 745 the observations by the Constitution Bench of this Court Sinh ri V.V. Giri vs. Dippala Suri Dora and Others (1960) 1,,,,,
SCR 426, 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 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.,,,,,
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.â€,,,,,
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 (1995) 5 SCC 173 and after vertical reservations are provided for, at the stage of accommodating candidates for",,,,,
effecting horizontal reservation, the candidates from reserved categories can be adjusted only against their own categories under the concerned vertical reservation and not against the “Open or General Categoryâ€.",,,,,
Thus, according to the second view, different principles must be adopted at two stages; in that:-.",,,,,
(I) At the initial stage when the “Open or General Category†seats are to be filled, the claim of all reserved category candidates based on merit must be considered and if any candidates from such reserved categories, on their",,,,,
own merit, are entitled to be selected against Open or General Category seats, such placement of the reserved category candidate is not to affect in any manner the quota reserved for such categories in vertical reservation.",,,,,
(II) However, when it comes to adjustment at the stage of horizontal reservation, even if, such reserved category candidates are entitled, on merit, to be considered and accommodated against Open or General Seats, at that stage",,,,,
the candidates from any reserved category can be adjusted only and only if there is scope for their adjustment in their own vertical column of reservation.,,,,,
Such exercise would be premised on following postulates: -,,,,,
(A) After the initial allocation of Open General Category seats is completed, the claim or right of reserved category candidates to be admitted in Open General Category seats on the basis of their own merit stands exhausted and",,,,,
they can only be considered against their respective column of vertical reservation.,,,,,
(B) If there be any resultant adjustment on account of horizontal reservation in Open General Category, only those candidates who are not in any of the categories for whom vertical reservations is provided, alone are to be",,,,,
considered.,,,,,
(C) In other words, at the stage of horizontal reservation, Open General Category is to be construed as category meant for candidates other than those coming from any of the categories for whom vertical reservation is provided.",,,,,
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 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.,,,,,
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’:-",,,,,
(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 areâ€"",,,,,
Sl. No. 46 - Open Category - Male,,,,,
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,
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 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 Maharashtra25 was correct.",,,,,
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.",,,,,
Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on",,,,,
05.08.2020 contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be,,,,,
multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event",,,,,
said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the,,,,,
candidate in the Waiting List for Scheduled Tribes â€" 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.,,,,,
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:-",,,,,
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 Categoryâ€"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 affidavits referred to in paragraphs 5 and 8 hereinabove are not to be affected in any manner merely because,,,,,
of this judgment.,,,,,
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.",,,,,
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,,,,,
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.â€",,,,,
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 â€" Ms. Sonam Tomar and other similarly situated candidates as discussed",,,,,
hereinabove.,,,,,
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.,,,,,
This Writ Petition is, therefore, without any merit and is dismissed.",,,,,
S. Ravindra Bhat, J",,,,,
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 2013 (4) RLW,",,,,,
Neelam Sharma v State of Rajasthan 2015 SCC (Online) Raj 139;) Gujarat High Court (in Tamannaben Ashokbhai Desai v Shital Amrutlal Nishar R/LPA NO. 1910 in R/Special Civil. App No. 18968/2018 decided on 5.8.2020),",,,,,
the Bombay High Court (in Asha Ramnath Gholap v The President, District Selection Commission/Collector 2016 SCC Online Bom 162, 3Kanchan Vishwanath Jagtap & Anr v Maharastra Administrative Tribunal & Ors 2016",,,,,
Mah. LJ 934, Tejaswini Raghunath Golande v Chairman, Maharastra Public Services Commission Mumbai & Ors 2019 Mah. LJ 527C, harushila v State of Maharashtra 2019 SCC Online Bom 151,9 Shantabai Laxman Doiphode",,,,,
v State of Maharashtra 2020 SCC Online Bom 1639) and Uttarakhand High Court (inU ttarakhand Subordinate Service Selection Commission v Ranjita Rana 2019 SCC Online Utt. 481 -) 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. (2019) 5 ALJ 466. and State of Madhya Pradesh & Anr. v.",,,,,
Uday Sisode & Ors. (2019) SCC OnLine MP 5750) â€" 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.",,,,,
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. [InHanumantDutt Shukla v State of UP",,,,,
2018 (16) SCC 447] 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 [CA No.11370/2018 (Alok Kr. Singh & Others v. State of U.P. & Others)] 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.,,,,,
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 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.â€,,,,,
The controversy that arises in the present round of litigation is the correct method of filling the quota reserved for women candidates (“horizontal quotaâ€).,,,,,
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 “migrationâ€, i.e. adjustment in the general category vacancies.",,,,,
The U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereafter “the 1993 Actâ€) 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†hereafterâ€]) 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.â€",,,,,
It is thus apparent that the reservations under the 1993 Act were “horizontal†in nature.,,,,,
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).",,,,,
See 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.)",,,,,
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. [Extracted from Sunaina Tripathi v. State of UP &Ors., (2012)",,,,,
3 ADJ 463],,,,,
“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.",,,,,
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,,,
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 more merit than such selected candidates, (in the social/vertical",,,,,
reservation category) being left out of selection.,,,,,
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 “slotsâ€, 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.,,,,,
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.",,,,,