BHARAT SANCHAR NIGAM LIMITED & ANR. versus SANDEEP CHOUDHARY & ORS. on 28 April 2022

SUPREME COURT REPORTS

[2022] 4 S.C.R.

ABHARAT SANCHAR NIGAM LIMITED & ANR.

v.

SANDEEP CHOUDHARY & ORS.

(Civil Appeal No. 8717 of 2015)

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APRIL 28, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Constitution of India, 1950 – Arts. 14, 16 and 142 –CReservation in employment – Whether in a case where the reservedcategory candidates secured more marks than the general categorycandidates, such reserved category candidates will have to be firstadjusted in the general category pool and they shall be consideredfor appointment in the general category pool or against thevacancies meant for reserved category candidates – Held: TheDreserved category candidates securing higher marks than the lastof the general category candidates are entitled to get seat/post inunreserved categories – Thus, two candidates belonging to OBCcategory, were required to be adjusted against the general categoryas they were more meritorious than the last of the general categoryEcandidates – Consequently, after considering their appointmentsin the general category, the seats meant for reserved category wererequired to be filled in from the remaining reserved categorycandidates on merit such as Respondent No. 1 – However, insertionof the two OBC candidates into general category select list mayFunsettle the entire selection process resulting in expulsion of twogeneral category candidates working since long – Therefore, tostrike a balance, the two candidates from OBC category must betreated in general category seats and Respondent No. 1 shall beappointed against the reserved category seats with the seniorityfrom the date of appointment of general category candidates – AtGsame time, the candidates already appointed in general categoryshall not be removed – Constitution of India – Art. 142.

Words and Phrases – Difference between “horizontalreservation” and “vertical reservation” explained.

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Dismissing the appeal, the Court

HELD: 1.1. Candidates belonging to any of the verticalreservation categories are entitled to be selected in “open orgeneral” category and if such candidates belonging to reservedcategories are entitled to be selected on the basis of theirown merit, their selection cannot be counted against the quotareserved for the categories that they belong. [Para 8.5][1018-G-H]

1.2. The reserved category candidates securing highermarks than the last of the general category candidates are entitledto get seat/post in unreserved categories. It is further observedand held that even while applying horizontal reservation, meritmust be given precedence and if the candidates, who belong toSCs, STs and OBCs have secured higher marks or are moremeritorious, they must be considered against the seats meantfor unreserved candidates. It is further observed that the 19candidates belonging to reserved categories can as well stakeclaim to seats in unreserved categories if their merit and positionin the merit list entitles them to do so. [Para 8.6][1019-A-C]

2. In the present case, the two candidates belonging toOBC category, were required to be adjusted against the generalcategory as admittedly they were more meritorious than the lastof the general category candidates appointed and theirappointments could not have been considered against the seatsmeant for reserved category. Consequently, after considering theirappointments in the general category, the seats meant forreserved category were required to be filled in from and amongstthe other remaining reserved category candidates on merit suchas respondent No.1. If such a procedure would have beenfollowed, the original applicant – respondent No.1 would havegot appointed on merit in the reserved category seats in thevacancy caused due to the above procedure. However, byreshuffling and on insertion of two OBC candidates into generalcategory select list, two general category candidates alreadyappointed shall have to be expelled and/or shall have to beremoved, who are working since long and it may unsettle the A

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Aentire selection process. Therefore, to strike a balance and toensure that the two general category candidates, who are alreadyappointed will not have to be removed and at the same time,respondent No.1 – original applicant being a reserved categorycandidate also gets accommodated, if he is so appointed, inexercise of the powers under Article 142 of the Constitution ofBIndia, it is ordered that on reshuffling and on respondent No.1 –original applicant being appointed now against the reservedcategory seats and while the other two candidates belonging toOBC category, to be treated in the general category seats, twocandidates already appointed and belonging to general categoryCshall not be removed. However, respondent No.1 shall get theseniority from the date of appointment of general categorycandidates who were having lesser merit than the aforesaid tworeserved category candidates. [Para 9][1019-C-H; 1020-A-D]

Indra Sawhney v. Union of India 1992 Supp (3) SCCD217 : [1992] 2 Suppl. SCR 454 and R.K. Sabharwal v.State of Punjab (2007) 8 SCC 785 : [2007] 8 SCR 972– followed.

Union of India v. Ramesh Ram (2010) 7 SCC 234 :[2010] 6 SCR 698 – distinguished.

EUttaranchal Public Service Commission v. Mamta Bisht(2010) 12 SCC 204 : [2010] 7 SCR 289; Ritesh R. Sahv. Y.L. Yamul (1996) 3 SCC 253 : [1996] 2 SCR 695;Saurav Yadav Vs. State of U.P. (2021) 4 SCC 542 andSadhana Singh Dangi v. Pinki Asati (2022) 1 SCALE534 – relied on.FRajesh Kumar Daria v. Rajasthan Public ServiceCommission (2007) 8 SCC 785 : [2007] 8 SCR 972 –referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8717of 2015.

From the Judgment and Order dated 04.08.2014 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Civil Writ PetitionNo.14714 of 2013.

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Dr. Rajeev Dhavan, Sr. Adv., (Amicus Curiae), Gaurav Agrawal(Amicus Curiae).

Pradeep Kumar Mathur, Chiranjeev Johri, Ankur Rastogi, Advs.for the Appellants.

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Puneet Jain, Ms. Christi Jain, Umang Mehta, Yogit Kamat, Ms.Pratibha Jain, Advs. for the Respondents.

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M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 04.08.2014 passed by the High Court of Rajasthan atJodhpur in DBCWP No. 14714/2013, by which the High Court hasdismissed the said writ petition preferred by the appellants herein – BharatSanchar Nigam Limited (hereinafter referred to as “BSNL”) and hasconfirmed the judgment and order passed by the Central AdministrativeTribunal, Jodhpur Bench, Jodhpur (hereinafter referred to as the“Tribunal”) in O.A. No. 159 of 2009 by which the learned Tribunal allowedthe said application preferred by the respondent No.1 herein – originalapplicant and directed the appellant herein – BSNL to consider hiscandidature if sufficient vacancies exist for placement of the candidatesof Other Backward Class and his candidature shall be considered againstthe present or future vacancies on the OBC category after determining F

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Athe vacancies as per rules, the appellant – BSNL has preferred thepresent appeal.

2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the private respondent No.1 herein – original applicantapplied for the post of Telecom Technical Assistants (TTAs) in pursuanceBto the notification dated 06.10.2008 issued by BSNL for filling up ofTTA posts. The appointment was to be made by way of direct recruitmentby open competitive examination in the Rajasthan Telecom Circle. Thesaid advertisement further provided that the unit of recruitment shall bethe respective Secondary Switching Area (SSA). The dispute in theCpresent case is relating to the Ajmer SSA. In the Ajmer SSA, thevacancies were as follows:- D

The recruitment was to be made by conducting a competitiveexamination of eligible candidates in an objective type paper of 200 marks.Clause 13of the advertisement provided that:-

(i) The minimum Qualifying marks in the paper would be 40%Efor the candidates of unreserved category candidate, and (ii)33% for candidates of reserved category.

It so happened that in the exam which was conducted no personfrom general category candidate got more than 40% marks. However,Ffour candidates from OBC category obtained more than 33% marks.The marks obtained by four OBC category candidates are as under:- OBC selected candidates The original applicant – respondent No.1 herein, who got 68.25marks was placed at Waiting List No.1 in the OBC category.

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2.2 On 01.06.2009, BSNL issued a circular/letter to all heads oftelecom circles, inter alia, stating that there has been poor pass percentageof candidates in the TTA examination and number of vacancies hadremained unfilled. There was acute shortage of manpower and hence itwas decided to relax the qualifying marks by 10% for all candidates.Accordingly, the qualifying marks were refixed at 30% for generalcategory and 23% for reserved category. Clauses (iii) & (v) of the saidletter provides as follows:- B

(iii) Successful candidates, qualifying through normal standardsin aggregate will rank enblock senior to those qualifyingthrough relaxed standard in the merit list. However, theprovisions of the Recruitment Rules will determine theirinter-se seniority in the cadre.

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(v) The Circles who have already announced the result butDhave not got adequate number of successful candidates,may further extend the merit/waiting list as per aboveinstructions.

2.3 After relaxation of minimum marks with 30% of generalcategory candidates, the following five candidates in general categorybecame eligible for appointment:- E

OC selected candidates

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2.4 However, it so happened that one Alok Kumar Yadav andAlka Saini, who were found to be more meritorious than the generalcategory candidates subsequently were found eligible to be appointed H

Aagainst the reserved category – OBC. Therefore, the respondent No.1herein – original applicant, who was wait listed No.1 in OBC category,approached the Tribunal by way of application being O.A. No. 159 of2009 for a direction to prepare a fresh list for all candidates based onrelaxed standard and act on the said combined merit list. It was, interalia, pleaded that there cannot be two cut-off marks for a single selection.BIt was submitted that there was an unreasonable classification byproviding another set of cut-off marks and the action was discriminatoryand violative of Articles 14 and 16 of the Constitution of India.

2.5 It was the case on behalf of the original applicant that thosetwo candidates belonging to OBC category, who were having more meritCwere required to be adjusted against the general category seats andconsequently the seats reserved for OBC category were required to befilled in from remaining reserved category candidates on merit.

2.6 The Tribunal, after noticing the judgment of the RajasthanHigh Court dated 09.02.2011 in S.B. Civil Writ Petition No.4948 of 2009,Ddisposed of the O.A. and directed BSNL to consider the candidature ofthe original applicant – respondent No.1 herein, if sufficient vacanciesexist for placement of the candidates of OBC and further his candidatureshall be considered against the present and future vacancies on OBCcategory.E

2.7 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the Tribunal, BSNL preferred the writ petition before theHigh Court and by the impugned judgment and order and by relyingupon the decisions of this Court in the case of Indra Sawhney Vs.Union of India, 1992 Supp (3) SCC 217; R.K. Sabharwal Vs. StateFof Punjab, (2007) 8 SCC 785; and Rajesh Kumar Daria Vs.Rajasthan Public Service Commission, (2007) 8 SCC 785 hasdismissed the said writ petition by observing that the BSNL should havegiven appointment to Mr. Alok Kumar Yadav and Mr. Dinesh Kumar(candidates belonging to OBC category) against the vacancies whichwere not reserved vertically in the event of shuffling the said two personsGto general category (admittedly both the aforesaid candidates havesecured and/or have more merit than the general category candidates,who were appointed). The High Court has further observed thatconsequently the original applicant could have been selected against the H

vacancies reserved for the OBC. By observing so, the High Court hasdismissed the writ petition. Hence, BSNL has preferred the present appeal.

3. We have heard Dr. Rajeev Dhavan alongwith Shri GauravAgrawal, learned Amicus Curiae, Shri Pradeep Kumar Mathur, learnedcounsel appearing on behalf of the BSNL and Shri Puneet Jain, learnedcounsel appearing on behalf of respondent No.1.

4. Learned counsel appearing on behalf of BSNL has heavilyrelied upon the decision of this Court in the case of Union of India Vs.Ramesh Ram, (2010) 7 SCC 234 and submitted that as observed andheld by this Court, in a case, where reserved category candidates areselected on merit and placed in the list of general category candidates,they can be adjusted against reserved category vacancies in order to geta service of higher choice at the time of service allocation. Learnedcounsel appearing on behalf of BSNL has heavily relied upon paragraph42 of the aforesaid decision.

4.1 Relying upon the above decision, it is vehemently submittedby the learned counsel appearing on behalf of the BSNL that the aforesaidtwo candidates namely Mr. Alok Kumar Yadav and Mr. Dinesh Kumarwere rightly considered in the reserved category pool.

4.2 It is submitted that if the view taken by the High Court isaccepted, in that case, the two OBC candidates, who secured moremarks than the relaxed cut-off marks of general category candidatesare adjusted in general category and thereby vacancies so created in theOBC category would have to be filled in by respondent No.1 herein –original applicant which would result in shuffling of the candidates andwould unsettle the entire selection process. It is further submitted bylearned counsel appearing on behalf of BSNL that the High Court hasfailed to take note of the fact that vacancies in the general categorywere only five and they were already filled in and therefore, insertion oftwo OBC candidates into the general category select list would expeltwo already selected candidates of general category who had securedundisputedly more marks than the original claimant thereby unsettlingthe entire selection process.

4.3 Making above submissions and relying upon the abovedecisions, it is prayed to allow the present appeal.

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A5. Dr. Rajeev Dhavan, learned Senior counsel, assisted by ShriGaurav Agrawal, learned Amicus Curiae and Shri Puneet Jain, learnedcounsel appearing on behalf of respondent No.1 have vehementlysubmitted that as such the controversy in the matter is squarely coveredby the decision of this Court in the case of Indra Sawhney (supra). Itis submitted that the reserved category candidates having obtained moreBmarks than the last candidate in general category candidates will haveto be adjusted against the general category quota and they were requiredto be considered in the general category pool, thereby the remainingcandidates belonging to the reserved category were required to beappointed against the quota meant for reserved category. It is submittedCthat in the present case, those two candidates, namely, Mr. Alok KumarYadav and Mr. Dinesh Kumar, secured more marks than the last of thegeneral category candidates selected and appointed and therefore thosetwo candidates were required to be adjusted and/or considered againstthe general category pool. The BSNL considered the appointment of theaforesaid two candidates in the reserved category and thereby caused aDloss to the reserved category candidates, who could have been appointedif the aforesaid two candidates belonging to the reserved category wouldhave been adjusted and/or appointed in the general pool. It is submittedtherefore that the High Court has rightly directed to consider thecandidature of respondent No.1 herein – original applicant, being a waitElisted candidate in the reserved category.

6. Heard the learned counsel for the respective parties at length.

7. The short question which is posed for the consideration of thisCourt is:- F“Whether in a case where the reserved category candidatessecured more marks than the general category candidates, suchreserved category candidates will have to be first adjusted in thegeneral category pool and they shall be considered for appointmentin the general category pool or against the vacancies meant forreserved category candidates?G8. While considering the aforesaid issue, few decisions of thisCourt on the above point are required to be referred to.

8.1 In the case of Indra Sawhney (supra) in paragraph 812, it isobserved and held as under:- H

“812. We are also of the opinion that this rule of 50% appliesonly to reservations in favour of backward classes made underArticle 16(4). A little clarification is in order at this juncture : allreservations are not of the same nature. There are two types ofreservations, which may, for the sake of convenience, be referredto as “vertical reservations” and “horizontal reservations”. Thereservations in favour of Scheduled Castes, Scheduled Tribes andOther Backward Classes [under Article 16(4)] may be calledvertical reservations whereas reservations in favour of physicallyhandicapped [under clause (1) of Article 16] can be referred toas horizontal reservations. Horizontal reservations cut across thevertical reservations — what is called interlocking reservations.To be more precise, suppose 3% of the vacancies are reserved infavour of physically handicapped persons; this would be areservation relatable to clause (1) of Article 16. The personsselected against this quota will be placed in the appropriatecategory; if he belongs to SC category he will be placed in thatquota by making necessary adjustments; similarly, if he belongs toopen competition (OC) category, he will be placed in that categoryby making necessary adjustments. Even after providing for thesehorizontal reservations, the percentage of reservations in favourof backward class of citizens remains — and should remain —the same. This is how these reservations are worked out in severalStates and there is no reason not to continue that procedure.”

8.2 In Rajesh Kumar Daria (supra), in paragraphs 8 to 11, it isobserved and held as under:-

“8. We may also refer to two related aspects before consideringthe facts of this case. The first is about the description of horizontalreservation. For example, if there are 200 vacancies and 15% isthe vertical reservation for SC and 30% is the horizontal reservationfor women, the proper description of the number of posts reservedfor SC, should be:”For SC : 30 posts, of which 9 posts are forwomen.” We find that many a time this is wrongly describedthus:”For SC : 21 posts for men and 9 posts for women, in all 30posts.” Obviously, there is, and there can be, no reservationcategory of “male” or “men”.

9. The second relates to the difference between the nature ofvertical reservation and horizontal reservation. Social reservations AB

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Ain favour of SC, ST and OBC under Article 16(4) are “verticalreservations”. Special reservations in favour of physicallyhandicapped, women, etc. under Articles 16(1) or 15(3) are“horizontal reservations”. Where a vertical reservation is made infavour of a Backward Class under Article 16(4), the candidatesbelonging to such Backward Class, may compete for non-reservedBposts and if they are appointed to the non-reserved posts on theirown merit, their number will not be counted against the quotareserved for respective Backward Class. Therefore, if the numberof SC candidates, who by their own merit, get selected to opencompetition vacancies, equals or even exceeds the percentage ofCposts reserved for SC candidates, it cannot be said that thereservation quota for SCs has been filled. The entire reservationquota will be intact and available in addition to those selectedunder open competition category. (Vide Indra Sawhney [IndraSawhney v. Union of India, 1992 Supp (3) SCC 217], R.K.Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union ofDIndia v. Virpal Singh Chauhan [ (1995) 6 SCC 684] and Ritesh R.Sah v. Y.L. Yamul [(1996) 3 SCC 253]. But the aforesaid principleapplicable to vertical (social) reservations will not apply to horizontal(special) reservations. Where a special reservation for women isprovided within the social reservation for Scheduled Castes, theEproper procedure is first to fill up the quota for Scheduled Castes inorder of merit and then find out the number of candidates amongthem who belong to the special reservation group of “ScheduledCaste women”. If the number of women in such list is equal to ormore than the number of special reservation quota, then there is noneed for further selection towards the special reservation quota.FOnly if there is any shortfall, the requisite number of ScheduledCaste women shall have to be taken by deleting the correspondingnumber of candidates from the bottom of the list relating to ScheduledCastes. To this extent, horizontal (special) reservation differs fromvertical (social) reservation. Thus women selected on merit withinGthe vertical reservation quota will be counted against the horizontalreservation for women. Let us illustrate by an example:

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If 19 posts are reserved for SCs (of which the quota forwomen is four), 19 SC candidates shall have to be first listed inaccordance with merit, from out of the successful eligiblecandidates. If such list of 19 candidates contains four SC

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BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEPCHOUDHARY & ORS. [M. R. SHAH, J.]

woman candidates, then there is no need to disturb the list byincluding any further SC woman candidate. On the other hand,if the list of 19 SC candidates contains only two womancandidates, then the next two SC woman candidates inaccordance with merit, will have to be included in the list andcorresponding number of candidates from the bottom of suchlist shall have to be deleted, so as to ensure that the final 19selected SC candidates contain four woman SC candidates.(But if the list of 19 SC candidates contains more than fourwoman candidates, selected on own merit, all of them willcontinue in the list and there is no question of deleting the excesswoman candidates on the ground that “SC women” have beenselected in excess of the prescribed internal quota of four.)

10. In this case, the number of candidates to be selected undergeneral category (open competition), were 59, out of which 11were earmarked for women. When the first 59 from among the261 successful candidates were taken and listed as per merit, itcontained 11 woman candidates, which was equal to the quotafor “general category women”. There was thus no need for anyfurther selection of woman candidates under the specialreservation for women. But what RPSC did was to take only thefirst 48 candidates in the order of merit (which contained 11women) and thereafter, fill the next 11 posts under the generalcategory with woman candidates. As a result, we find that among59 general category candidates in all 22 women have been selectedconsisting 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 theselection list) and another eleven (candidates at Sl. Nos. 54, 61,62, 63, 66, 74, 75, 77, 78, 79 and 80 of the selection list) includedunder reservation quota for “general category women”. This isclearly impermissible. The process of selections made by RPSCamounts to treating the 20% reservation for women as a verticalreservation, instead of being a horizontal reservation within thevertical reservation.

11. Similarly, we find that in regard to 24 posts for OBC, 19candidates were selected by RPSC in accordance with merit fromamong OBC candidates which included three woman candidates.Thereafter, another five women were selected under the category AB

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of “OBC women”, instead of adding only two which was theshortfall. Thus there were in all 8 women candidates among the24 OBC candidates found in the selection list. The proper coursewas to list 24 OBC candidates as per the merit and then find outnumber of woman candidates among them, and only fill theshortfall to make up the quota of five for women.”

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(emphasis supplied)”

8.3 In the case of Uttaranchal Public Service CommissionVs. Mamta Bisht, (2010) 12 SCC 204, the High Court took the viewthat the reserved category candidate, on her own merit was entitled toCbe considered in the general category and she could not have been countedagainst the reserved category. While upholding the judgment of the HighCourt, this Court observed and held in paragraphs 3, 4, 13 and 15 asunder:-

“3. Out of 42 posts, 26 were filled up by general category andD16 by reserved category candidates. Some women candidatesstood selected in the general category while others had been giventhe benefit of horizontal reservation being residents of Uttaranchal.Respondent 1, being aggrieved preferred Writ Petition No. 780 of2003 (M/B) in the High Court of Uttaranchal seeking quashmentof select list dated 31-7-2003 mainly on the ground that womenEcandidates belonging to Uttaranchal had secured marks makingthem eligible to be selected in the general category and had itbeen done so, Respondent 1 could have been selected in thereserved category being a woman of Uttaranchal. It had alsobeen pleaded in the petition that some of the women candidatesFwho not only claimed the benefit of horizontal reservation buthave been selected giving the said benefit, did not submit theirrespective certificate of domicile at the time of filling up theapplication forms but they produced the said certificate at a laterstage and it was accepted.

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4. The High Court accepted the first submission of Respondent1 after examining the record of selection and came to theconclusion that the last selected woman candidate who was giventhe benefit of horizontal reservation for Uttaranchal women hadsecured marks higher than the last selected candidate in the generalcategory. Thus, the said candidate ought to have been appointed G

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against the general category vacancy and Respondent 1 ought tohave been offered the appointment giving her the benefit of horizontalreservation for Uttaranchal women. Hence, these appeals.

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13. In fact, the High Court allowed the writ petition only onthe ground that the horizontal reservation is also to be applied asvertical 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 againstfive seats reserved for Uttaranchal Women General Categoryas she has competed on her own merit as general candidateand as the fifth candidate the petitioner should have been countedfor Uttaranchal Women General Category seats.’

Admittedly, the said Neetu Joshi has not been impleaded as arespondent. It has been stated at the Bar that an application forimpleadment had been filed but there is nothing on record to showthat the said application had ever been allowed. Attempt had beenmade to implead some successful candidates before this Courtbut those applications stood rejected by this Court.

14. The view taken by the High Court on application ofhorizontal reservation is contrary to the law laid down by thisCourt in Rajesh Kumar Daria v. Rajasthan Public ServiceCommission [(2007) 8 SCC 785], wherein dealing with a similarissue this Court held as under : (SCC pp. 790-91, para 9)

‘9. The second relates to the difference between the natureof vertical reservation and horizontal reservation. Socialreservations in favour of SCs, STs and OBCs under Article16(4) are “vertical reservations”. Special reservations in favourof physically handicapped, women, etc. under Articles 16(1)or 15(3) are “horizontal reservations”. Where a verticalreservation is made in favour of a Backward Class under Article16(4), the candidates belonging to such Backward Class, maycompete for non-reserved posts and if they are appointed tothe non-reserved posts on their own merit, their number willnot be counted against the quota reserved for respectiveBackward Class. Therefore, if the number of SC candidates, A

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who by their own merit, get selected to open competitionvacancies, equals or even exceeds the percentage of postsreserved for SC candidates, it cannot be said that thereservation quota for SCs has been filled. The entire reservationquota will be intact and available in addition to those selectedunder open competition category. (Vide Indra Sawhney v.Union of India, 1992 Supp (3) SCC 217], R.K. Sabharwal v.State of Punjab [(1995) 2 SCC 745], Union of India v. VirpalSingh Chauhan [(1995) 6 SCC 684] and Ritesh R. Sah v. Y.L.Yamul [(1996) 3 SCC 253].) But the aforesaid principleapplicable to vertical (social) reservations will not applyto horizontal (special) reservations. Where a specialreservation for women is provided within the social reservationfor Scheduled Castes, the proper procedure is first to fill upthe quota for Scheduled Castes in order of merit and then findout the number of candidates among them who belong to thespecial reservation group of “Scheduled Caste women”. If thenumber of women in such list is equal to or more than thenumber of special reservation quota, then there is no needfor further selection towards the special reservation quota.Only if there is any shortfall, the requisite number of ScheduledCaste women shall have to be taken by deleting thecorresponding number of candidates from the bottom of thelist relating to Scheduled Castes. To this extent, horizontal(special) reservation differs from vertical (social)reservation. Thus women selected on merit within the verticalreservation quota will be counted against the horizontalreservation for women.’

15. In view of the above, it is evident that the judgment andorder of the High Court is not in consonance with the law laiddown by this Court in Rajesh Kumar Daria [(2007) 8 SCC 785].The judgment and order impugned herein is liable to be set asideand all the consequential orders become unenforceable andinconsequential. Thus, the appeals succeed and are allowed. Thejudgment and order of the High Court dated 26-10-2005 passedin Mamta Bisht v. State [WPMB No. 780 of 2003, order dated26-10-2005 (Utt)] is hereby set aside. No costs.”

(emphasis in original)

8.4 In Ritesh R. Sah v. Y.L. Yamul, (1996) 3 SCC 253 afternoticing the Larger Bench decision of this Court in the case of IndraSawhney (supra) and R.K. Sabharwal (supra), it is observed inparagraph 13 to 16 as under:

“13. There cannot be any dispute with the proposition thatif a candidate is entitled to be admitted on the basis of his ownmerit then such admission should not be counted against thequota reserved for Scheduled Caste or Scheduled Tribe or anyother reserved category since that will be against theconstitutional mandate enshrined in Article 16(4).

14. In Indra Sawhney v. Union of India [1992 Supp (3) SCC217] commonly known as Mandal case, this Court held thus :(SCC p. 735, para 811)

‘811. In this connection it is well to remember that thereservations under Article 16(4) do not operate like a communalreservation. It may well happen that some members belongingto, say, Scheduled Castes get selected in the open competitionfield on the basis of their own merit; they will not be countedagainst the quota reserved for Scheduled Castes; they will betreated as open competition candidates.’

15. In R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745]the Constitution Bench of this Court considered the question ofappointment and promotion and roster points vis-à-vis reservationand held thus : (SCC p. 750, para 4)

‘4. When a percentage of reservation is fixed in respect ofa particular cadre and the roster indicates the reserve points, ithas to be taken that the posts shown at the reserve points areto be filled from amongst the members of reserved categoriesand the candidates belonging to the general category are notentitled to be considered for the reserved posts. On the otherhand the reserved category candidates can compete for thenon-reserved posts and in the event of their appointment to thesaid posts their number cannot be added and taken intoconsideration for working out the percentage of reservation.Article 16(4) of the Constitution of India permits the State A

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Government to make any provision for the reservation ofappointments or posts in favour of any Backward Class ofcitizens which, in the opinion of the State is not adequatelyrepresented in the Services under the State. It is, therefore,incumbent on the State Government to reach a conclusion thatthe Backward Class/Classes for which the reservation is madeis not adequately represented in the State Services. While doingso the State Government may take the total population of aparticular Backward Class and its representation in the StateServices. When the State Government after doing the necessaryexercise makes the reservation and provides the extent ofpercentage of posts to be reserved for the said Backward Classthen the percentage has to be followed strictly. The prescribedpercentage cannot be varied or changed simply because someof the members of the Backward Class have already beenappointed/promoted against the general seats. As mentionedabove the roster point which is reserved for a BackwardClass has to be filled by way of appointment/promotion ofthe member of the said class. No general category candidatecan be appointed against a slot in the roster which is reservedfor the Backward Class. The fact that considerable numberof members of a Backward Class have been appointed/promoted against general seats in the State Services may bea relevant factor for the State Government to review thequestion of continuing reservation for the said class but solong as the instructions/rules providing certain percentage ofreservations for the Backward Classes are operative the samehave to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against thegeneral category posts the given percentage has to be providedin addition.’

16. In Union of India v. Virpal Singh Chauhan [(1995) 6SCC 684] (SCC at p. 705) it has been held that while determiningthe number of posts reserved for Scheduled Castes and ScheduledTribes, the candidates belonging to reserved category butselected/promoted on the rule of merit (and not by virtue of ruleof reservation) shall not be counted as reserved categorycandidates.”

8.5 In a more recent decision this Court in the case of SauravYadav Vs. State of U.P., (2021) 4 SCC 542 after referring to all theearlier judgments on vertical reservation has observed and held that it iswell settled that candidates belonging to any of the vertical reservationcategories are entitled to be selected in “open or general” category andit is also further observed that if such candidates belonging to reservedcategories are entitled to be selected on the basis of their own merit,their selection cannot be counted against the quota reserved for thecategories that they belong.

8.6 Similar view has been expressed by this Court in another recentdecision of this Court in the case of Sadhana Singh Dangi Vs. PinkiAsati, (2022) 1 SCALE 534. By the said decision, it is reiterated thatthe reserved category candidates securing higher marks than the last ofthe general category candidates are entitled to get seat/post in unreservedcategories. It is further observed and held that even while applyinghorizontal reservation, merit must be given precedence and if thecandidates, who belong to SCs, STs and OBCs have secured highermarks or are more meritorious, they must be considered against theseats meant for unreserved candidates. It is further observed that thecandidates belonging to reserved categories can as well stake claim toseats in unreserved categories if their merit and position in the merit listentitles them to do so.

9. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, it is noted that the aforesaidtwo candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,belonging to OBC category, were required to be adjusted against thegeneral category as admittedly they were more meritorious than the lastof the general category candidates appointed and that their appointmentscould not have been considered against the seats meant for reservedcategory. Consequently, after considering their appointments in the generalcategory, the seats meant for reserved category were required to befilled in from and amongst the other remaining reserved categorycandidates on merit such as respondent No.1 herein. If such a procedurewould have been followed, the original applicant – respondent No.1 wouldhave got appointed on merit in the reserved category seats in the vacancycaused due to the above procedure. Therefore, as such the High Courthas not committed any error in observing and holding that the aforesaid AB

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Atwo candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,will have to be adjusted against the general category candidates andaccordingly respondent No.1 being a reserved category candidate andbeing at Sr. No.1 in the waiting list of reserved category was to beappointed.

BHowever, at the same time, it cannot be disputed that by reshufflingand on insertion of two OBC candidates into general category select list,two general category candidates already appointed shall have to beexpelled and/or shall have to be removed, who are working since longand it may unsettle the entire selection process. Therefore, to strike aCbalance and to ensure that the two general category candidates, whoare already appointed will not have to be removed and at the same time,respondent No.1 – original applicant being a reserved category candidatealso gets accommodated, if he is so appointed, in exercise of the powersunder Article 142 of the Constitution of India, we propose to pass anorder that on reshuffling and on respondent No.1 – original applicantDbeing appointed now against the reserved category seats and while theaforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr. DineshKumar, belonging to reserved category, to be treated in the generalcategory seats, two candidates already appointed and belonging to generalcategory shall not be removed. However, respondent No.1 shall get theEseniority from the date the general category candidates were appointed,who were having lesser merit than the aforesaid two reserved categorycandidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar.

10. Now, so far as the decision of this Court in the case of RameshRam (supra) relied upon by learned counsel appearing on behalf of theFBSNL is concerned, the aforesaid decision is not applicable to the factsof the case on hand. The said decision is distinguishable on facts. In thesaid case, this Court was considering Rule 16(2) of Civil ServicesExamination Rules relating to Civil Services Examination held by theUnion Public Service Commission. Rule 16(2)of the Rules reads asunder:-G

“16(2) While making service allocation, the candidates belongingto the Scheduled Castes, the Scheduled Tribes or Other BackwardClasses recommended against unreserved vacancies may beadjusted against reserved vacancies by the Government if by this H

process they get a service of higher choice in the order of theirpreference.”

The said case was a case of Civil Services, where the selectedcandidates were having different preferences and in a given case, itmay happen that the general category candidates, who are less meritoriousand the reserved category candidates having more marks than the generalcategory candidates and consequently they are to be adjusted againstthe reserved category and they can possibly secure posts in a service ofa higher preference. Therefore, option was given to such candidatesbelonging to reserved category to consider their candidature against thereserved category only despite having higher merit than General CategoryCandidates. However, in the present case, there is no question of anysuch preference. On interpretation of Rule 16(2) in paragraph 42, it wasobserved and held as under:- “42. Therefore, we are of the firm opinion that MRC candidateswho avail the benefit of Rule 16(2) and are eventually adjusted inthe reserved category should be counted as part of the reservedpool for the purpose of computing the aggregate reservation quotas.The seats vacated by MRC candidates in the general pool willtherefore be offered to general category candidates. This is theonly viable solution since allotting these general category seats(vacated by MRC candidates) to relatively lower-ranked reservedcategory candidates would result in aggregate reservationsexceeding 50% of the total number of available seats. Hence, wesee no hurdle to the migration of MRC candidates to the reservedcategory.”

We fail to appreciate how the said decision is applicable to factsof the case on hand and/or of any assistance to the BSNL faced withthe decisions of this Court in the case of Indra Sawhney (supra) andother decisions referred to hereinabove.

11. In view of the above and for the reasons stated above, thepresent appeal fails and the same deserves to be dismissed and isaccordingly dismissed. The High Court has rightly observed and heldthat two reserved category candidates, namely, Mr. Alok Kumar Yadavand Mr. Dinesh Kumar having more marks than the general categorycandidates appointed, were entitled to the appointment in the generalcategory and the seats reserved for OBC category were required to be A

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Afilled in from and amongst the remaining candidates belonging to theOBC category. Consequently, respondent No.1 – original applicant wasentitled to the appointment on such post. However, at the same time inexercise of the powers under Article 142 of the Constitution of India, itis observed and directed that on reshuffling, the two candidates belongingto general category shall not be removed from service as they are workingBsince long. However, at the same time, the respondent No.1 shall beentitled to the seniority from the date, the general category candidateshaving lesser marks than the aforesaid two reserved category candidateswere appointed.

CWith this, the present appeal stands dismissed. However, in thefacts and circumstances, there shall be no order as to costs.

12. Before parting, we would like to deeply appreciate the servicesrendered by Dr. Rajeev Dhavan, learned Senior Advocate and ShriGaurav Agrawal, learned Advocate, who have assisted the Court asAmicus Curiae and we are thankful to both of them for their valuableDassistance.

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Bibhuti Bhushan Bose

(Assisted by : Preetam Bharti, LCRA)

Appeal dismissed.

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