SAURAV YADAV & ORS. versus STATE OF UTTAR PRADESH & ORS. on 18 December 2020

1. The second view (view of High Court of Allahabad andMadhya Pradesh) is neither based on any authoritativepronouncement by this Court nor does it lead to a situation wherethe merit is given precedence. Subject to any permissiblereservations i.e. either Social (Vertical) or Special (Horizontal),Hopportunities to public employment and selection of candidates must purely be based on merit. Any selection which results incandidates getting selected against Open/General category withless merit than the other available candidates will certainly beopposed to principles of equality. There can be specialdispensation when it comes to candidates being consideredagainst seats or quota meant for reserved categories and in theoryit is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse cannever be true and will be opposed to the very basic principleswhich have all the while been accepted by this Court. Any viewor process of interpretation which will lead to incongruity, mustbe rejected. [Para 31][333-D-G]

2. The second view will thus not only lead to irrationalresults where more meritorious candidates may possibly getsidelined as indicated above but will, of necessity, result inacceptance of a postulate that Open/General seats are reservedfor candidates other than those coming from vertical reservationcategories. Such view will be completely opposed to the longline of decisions of this Court. [Para 32][333-G-H]

3. This Court, therefore, does not approve the second viewand reject it. The first view which weighed with the High Courtsof Rajasthan, Bombay, Uttarakhand and Gujarat is correct andrational. [Para 33][334-A]

4. It must be stated here that the submissions advanced bythe Advocate General for Uttar Pradesh as recorded in the orderdated 16.03.2016 before the Single Judge of the High Court wereabsolutely correct. The Single Judge and the Division Bench ofthe High Court completely erred in rejecting the stand taken onbehalf of the State. It appears that after such rejection, theProcedure laid down for completing the recruitment exercise asreferred to in the order dated 22.02.2019 passed by the DivisionBench of the High Court had stated in step 4.1 that candidate notbelonging to Scheduled Castes, Scheduled Tribes and OtherBackward Classes category alone would be considered againstgeneral category. Said Procedure and especially step 4.1 waserroneous but was perhaps guided by the declaration issued bythe High Court earlier. On the other hand, the stand taken bythe Advocate General for Maharashtra as recorded by the HighCourt of Bombay in Charushila vs. State of Maharashtra 2019SCC Online Bom 1519 was correct. [Para 34][334-A-D]

AB

C

D

E

F

G

H

A5. This Court must also clarify at this stage that it is notdisputed that the Applicant no.1 and other similarly situatedcandidates are otherwise entitled and eligible to be appointed in‘Open/General Category’ and that they have not taken or availedof any special benefit which may disentitle them from beingconsidered against ‘Open/General Category’ seat. The entireBdiscussion and analysis in the present case is, therefore, fromsaid perspective. [Para 35][334-D-E]

A

6. Finally, this Court must say that the steps indicated bythe High Court of Gujarat in para 56 of its judgment in TamannabenAshokbhai Desai [R/LPA No.1910 of 2019 in R/Special CivilApplication No.18968 of 2018] contemplate the correct andCappropriate procedure for considering and giving effect to bothvertical and horizontal reservations. The steps indicated byGujarat High Court will take care of every such possibility. It istrue that the exercise of laying down a procedure must necessarilybe left to the concerned authorities but this Court may observeDthat one set out in said judgment will certainly satisfy all claimsand will not lead to any incongruity. [Para 36][334-E-H]

7. Having come to the conclusion that the Appellant No.1and similarly situated candidates had secured more marks thanthe last candidates selected in ‘Open/General Category’, thelogical consequence must be to annul said selection and directEthe authorities to do the exercise de novo in the light of conclusionsarrived at by us. However, considering the facts that thoseselected candidates have actually undergone training and arepresently in employment and that there are adequate number ofvacancies available, this Court mould the relief and direct asunder:- a) All candidates coming from ‘OBC Female Category’Fwho had secured more marks than 274.8929, i.e. the markssecured by the last candidate appointed in ‘General Category–Female’ must be offered employment as Constables in UttarPradesh Police. b) Appropriate letters in that behalf shall be sentto the concerned candidates within four weeks. c) If theconcerned candidates exercise their option and accept the offerGof employment, communications in that behalf shall be sent bythe concerned candidates within two weeks. d) On receipt of suchacceptance, the codal and other formalities shall be completedwithin three weeks. e) Letters of appointment shall thereafterbe issued within a week and the concerned candidates shall be H

given appropriate postings. f) For all purposes, including seniority,pay fixation and other issues, the employment of such candidatesshall be reckoned from the date the appointment orders areissued. g) The employment of General Category Females withcut off at 274.8929 as indicated by the State Government in itsaffidavits referred to in paragraphs 5 and 8 hereinabove are notto be affected in any manner merely because of this judgment.Since it has been accepted that none of the candidates comingfrom ‘SC Female Category’ had secured more marks than274.8298, the claims of the Applicant no.2 and all similarly situatedcandidates are rejected. [Para 37, 38][335-A-F]

Per S. RAVINDRA BHAT, J.

1. The features of vertical reservations are: (i) They cannotbe filled by the open category, or categories of candidates otherthan those specified and have to be filled by candidates of theconcerned social category only (SC/ST/OBC); (ii) Mobility(‘migration’) from the reserved (specified category) to theunreserved (open category) slot is possible, based on meritoriousperformance; (iii) In case of migration from reserved to opencategory, the vacancy in the reserved category should be filledby another person from the same specified category, lower inrank, (iv) If the vacancies cannot be filled by the specifiedcategories due to shortfall of candidates, the vacancies are to be‘carried forward’ or dealt with appropriately by rules. [Para 9][341-F-H; 342-A]

2. Horizontal reservations on the other hand, by their nature,are not inviolate pools or carved in stone. They are premised ontheir overlaps and are ‘interlocking’ reservations. As a sequel,they are to be calculated concurrently and along with the inviolate‘vertical’ (or “social”) reservation quotas, by application of thevarious steps laid out with clarity in paragraph 11 of Justice Lalit’sjudgement. They cannot be carried forward. The first rule thatapplies to filling horizontal reservation quotas is one of adjustment,i.e. examining whether on merit any of the horizontal categoriesare adjusted in the merit list in the open category, and then, inthe quota for such horizontal category within the particularspecified/social reservation. [Para 10][342-A-C]

3. The open category is not a ‘quota’, but rather availableto all women and men alike. Similarly, as held in Rajesh KumarDaria v. Rajasthan Public Service Commission, 2007 (8) SCC 785, AB

C

DE

F

G

H

Athere is no quota for men. If the second view is accepted [as heldby the Allahabad High Court in Ajay Kumar v. State of UP (2019)5 ALJ 466 and the Madhya Pradesh High Court in State ofMadhya Pradesh & Anr. v. Uday Sisode & Ors. (2019) SCC OnlineMP 5750, referred to in paragraph 20 of Justice Lalit’sjudgement], the result would be confining the number of womenBcandidates, irrespective of their performance, in their socialreservation categories and therefore, destructive of logic andmerit. The second view, therefore – perhaps unconsciouslysupports- but definitely results in confining the number of womenin the select list to the overall numerical quota assured by the rule. [Para 11][342-A-E]C

4. In my opinion, the second view collapse completely, whenmore than the stipulated percentage 20% (say, 40% or 50%) ofwomen candidates figure in the most meritorious category. Thesaid second view in Ajay Kumar and Uday Sisode thus penalizesmerit. The principle of mobility or migration, upheld by this courtDin Union of India v. Ramesh Ram (2009) 6 SCC 619 and othercases, would then have discriminatory application, as it wouldapply for mobility of special category men, but would not apply tothe case of women in such special categories (as glaringly evidentfrom the facts of this case) to women who score equal to or morethan their counterparts in the open/ general category. [ParaE12][342-A-F; 343-A]

5. Both vertical and horizontal, are method of ensuringrepresentation in public services. These are not to be seen asrigid “slots”, where a candidate’s merit, which otherwise entitlesher to be shown in the open general category, is foreclosed, asthe consequence would be, if the state’s argument is accepted.FDoing so, would result in a communal reservation, where eachsocial category is confined within the extent of their reservation,thus negating merit. The open category is open to all, and theonly condition for a candidate to be shown in it is merit, regardlessof whether reservation benefit of either type is available to heror him. [Para 15][344-A-G]GIn the Judgment of Uday Umesh Lalit, J.

Shri V.V. Giri v. Dippala Suri Dora and Others [1960]1 SCR 426 – followed.

Megha Shetty v. State of Rajasthan 2013 (4) RLW 3227(Raj.); Neelam Sharma v. State of Rajasthan and Ors.

H

(2015) SCC OnLine Raj 1391; Asha Ramnath Gholapv. The President, District Selection Committee/Collector(2016) SCC OnLine Bom 1623-20; KanchanVishwanath Jagtap v. Maharashtra AdministrativeTribunal, Nagpur and Others (2016) 1 Mah. L.J. 934;Tejaswini Raghunath Galande v. Chariman,Maharashtra Public Service Commission, Mumbai andOthers (2019) 4 Mah L.J. 52-207; Charushila v. Stateof Maharashtra (2019) SCC OnLine Bom 1519;Shantabai Laxman Doiphode v. State of Maharashtra(2020) SCC OnLine Bom 1659; UttarakhandSubordinate Service Selection Commission and Anotherv. Ranjita Rana and Another (2019) SCC OnLine Utt481; Sudhir Kumar v. State of Uttarakhand and OthersWrit Petition (S/B) No.392 of 2017 dated 11.12.2018;Tamannaben Ashokbhai Desai v. Shital Amrutlal NisharR/LPA No.1910 of 2019 in R/Special Civil ApplicationNo.18968 of 2018 etc. decided on 05.08.2020 –approved.

Ajay Kumar v. State of U.P. and Others (2019) 5 ALJ466; State of Madhya Pradesh and Another v. UdaySisode and Others (2019) SCC OnLine MP 5750 –disapproved.

State of UP & Ors. v. Ashish Kumar Pandey & Ors.(2016) SCC OnLine All 2611; Pramod Kumar Singhand Others v. State of U.P. and Others Writ A. No.18442of 2018; Indra Sawhney and Others v. Union of Indiaand Others (1992) 3 Suppl. SCC 217; Swati Gupta (Ms.)v. State of U.P. and Others (1995) 2 SCC 560; [1995] 1SCR 827; Anil Kumar Gupta and others v. State of U.P.and Others (1995) 5 SCC 173; [1995] 2 Suppl. SCR 396; Rajesh Kumar Daria Etc. v. Rajasthan PublicService Commission and Others (2007) 8 SCC 785;[2007] 8 SCR 972; K. Krishna Murthy (Dr.) and Othersv. Union of India and Another (2010) 7 SCC 202;[2010] 6 SCR 972; Public Service Commission,Uttaranchal Etc. v. Mamta Bisht and Others (2010) 12SCC 204; [2010] 7 SCR 289; Alok Kumar Singh andOthers v. State of Uttar Pradesh and Others; (2019) 14SCC 692; [2018] 14 SCR 328 – referred to.

A

B

C

D

E

F

G

[2020] 11 S.C.R.

Indira Sawhney v Union of India, (1992) Suppl. (3) SCC766; Rajesh Kumar Daria v. Rajasthan Public ServiceCommission (2007) 8 SCC 785; [2007] 8 SCR 972 –relied on.

C

Anil Kumar Gupta v. State of UP, (1995) 5 SCC 173;[1995] 2 Suppl. SCR 396; Swati Gupta v. State of UP(1995) 2 SCC 560; [1995] 1 SCR 827; Jitendra KumarSingh v. State of UP (2010) 3 SCC 119; [2010] 1SCR 325; Anupal Singh v. State of U.P (2020) 2 SCC173; [2019] 12 SCR 1071 – referred to.

D

Megha Shetty v. State of Rajasthan 2013 (4) RLW;Neelam Sharma v. State of Rajasthan (2015) SCCE(Online) Raj 139; Tamannaben Ashokbhai Desai v.Shital Amrutlal Nishar R/LPA NO. 1910 in R/SpecialCivil. App No. 18968/2018 decided on 5.8.2020 bythe High Court of Gujarat; Asha Ramnath Gholap v.The President, District Selection Commission/Collector,(2016) SCC Online Bom 1623; Kanchan VishwanathFJagtap & Anr. v. Maharastra Administrative Tribunal& Ors. 2016 Mah. LJ 934; Tejaswini RaghunathGolande v. Chairman, Maharastra Public ServicesCommission 2019 Mah. LJ 527; Charushila v. State ofMaharashtra, (2019) SCC Online Bom 1519;Shantabai Laxman Doiphode v. State of MaharashtraG(2020) SCC Online Bom 1639; UttarakhandSubordinate Service Selection Commission v. RanjitaRana (2019) SCC Online Utt. 481 – approved.Allahabad and Madhya Pradesh (in Ajay Kumar v. Stateof UP & Ors. (2019) 5 ALJ 466; State of MadhyaPradesh & Anr. v. Uday Sisode & Ors. (2019) SCCHOnLine MP 5750 – disapproved.

H

SAURAV YADAV & ORS. v.STATE OF UTTAR PRADESH & ORS.

Government of Andhra Pradesh v. P.B. Vijay Kumar(1995) 4 SCC 520; [1995] 1 Suppl. SCR 462; Unionof India v. Ramesh Ram (2009) 6 SCC 619; [2009] 9SCR 775 – referred to.

Hanumant Dutt Shukla v. State of UP (2018) 16 SCC447; Alok Kr. Singh & Others v. State of U.P. & OthersCA No.11370/2018; Sunaina Tripathi v. State of UP &Ors., (2012) 3 ADJ 463 – referred to.

From the Judgment and Order dated 16.05.2018 of the High Courtof Judicature at Allahabad in Writ Petition – A No. 21084 of 2017.With W.P. (C) No.237 of 2020

Vinod Kumar Diwakar, Saurabh Mishra, AAGs., Ms. Vibha DuttaMakhija, Vinay Navare, Gopal Sankaranarayanan, Neeraj Kishan Kaul,P.S. Patwalia, Dr. Manish Singhvi, Purushaindra Kaurav, S.R. Singh,S.R. Rungta, Sr. Advs., Garima Prashad, Adaleeb Naqvi, Ms. NupurDubey, Purushottam Sharma Tripathi, Mukesh Kumar Singh, Ms. VaniVyas, Praveen Gaur, Anurag Dubey, Rajesh Pathak, Sumit Kumar, Ms.Kumari Supriya, Ms. Usha Pandey, Binod Mishra, Ravi ChandraPrakash, Amit, Abhishek Tripathi, Shrutanjaya Bhardwaj, Anil Bhat,Danish Zubair Khan, Kumar Gaurav, Robin Khokhar, Ms. AnuradhaMishra, Mayank Kshirsagar, Mukesh Kumar, Siddharth Sharma,Parthasarathy Bose, Ms. Pankhuri, Ankur Yadav, Sumit Pragal, Ms. AmitaSingh Kalkal, Arjun Garg, Ms. Rati Tandon, Saurabh Kirpal, AnuroopChakravarti, Ms. Nida Khan, P. N. Puri, Surendra Singh Rana, ShantanuJugtawat, Ikshit Singhal, Mohit Kaushik, Ms. Bhanu Priya Sharma, A

B

C

D

E

F

G

H

APrashant Agarwal, Ashutosh Chaturvedi, M/s. Mukesh Kumar SinghAnd Co., D.K. Garg, Seemant Singh, Dhananjay Garg, Sudhindra Tripathi,Abhishek Garg, Shakil Ahmad Syed, Mohd. Parvez Dabas, Uzmi JameelHusain, Qazi Wakeel Ahmad, Daanish Ahmed Syed, R.K. Singh,Ms. Neeraj Singh, Ms. Ritu Reniwal, Ms. Anzu K. Varkey, DivyakantLahoti, Parikshit Ahuja, Praveena Bisht, Ms. Vindhya Mehra,BMs. Madhur Jhavar, Kartik Lahoti, Jai Gopal Saboo, Satish Pandey, SalimAnsari, Umang Tripathi, Ms. Ninanda Nair, Adarsh Tripathi, Anish Gupta,Nikhil Kandpal, Gaurav Srivastava, Sanjay K. Agrawal, Ms. AnkitaKhare, Sarthak Nema, Rohit Sohgaura, Suyash Mohan Guru, VardhmanKaushik, Ashwani Kumar Dubey, Anil A. Thomas, Manish Kumar, AmanJha, Ashutosh Mohan, R. C. Kohli, L.C. Patne, Raghav Pandey,CMs. Rekha Pandey, Krishna M. Singh, S. R. Setia, Mayank Pandey,Gaurav, Nikhil Jain, Rajiv Ranjan Dwivedi, Advs. for the appearingparties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.DMISCELLANEOUS APPLICATIONNO.2641OF2019

1. This Miscellaneous Application has been preferred byMs. Sonam Tomar and Ms. Reeta Rani who had participated in theSelection Process initiated for filling up posts of Constables in U.P.Police and secured 276.5949 and 233.1908 marks respectively. Theyhad applied in the categories of OBC-Female and SC-Female respectively.E

2. It is submitted by them that their claim has been rejected by theState Government despite directions issued by this Court in its Orderdated 24.07.2019 in I.A. No.10394 of 2018 (Ashish Kumar Yadav andOthers vs. State of Uttar Pradesh and Others) and that candidates withlower marks have been selected in General Female category disregardingtheir claim.F

3. The basic facts relevant for the purposes of this MiscellaneousApplication, as stated in said order dated 24.07.2019 are as under: - “In the year 2013, selection process was undertaken to fill up41,610 posts of Police Constables [U.P. Civil Police/ProvincialArmed Constabulary (PAC)/Fireman]). After the requisiteGexamination, results were declared on 16.07.2015, in which 38315candidates were successful. Thus, as on that date there were3295 vacancies which were not filled as no suitable candidateswere available.

It must be mentioned that the process for selecting Sub- Inspectorsin U.P. Police was going on simultaneously and in a challengeH

raised in respect of said process, the High Court of Judicature atAllahabad vide its order dated 29.05.2015 in the case of SaketKumar and Ors. vs. State of U.P. and 2 Ors[1]directed that thecandidates who had used blades and whiteners while answeringthe answer papers of the main examination were disqualified andtheir names be deleted from the selection list.

The matter was carried in appeal before this Court and by itsdecision dated 19.01.2016 (Hanuman Dutt Shukla & Ors. vs.State of UP and Others[2]), it was ruled that those who had usedblades and whiteners ought not to have been disqualified. However,by that time, the process of selection had gone ahead with re-working of the seniority list in terms of the order passed in SaketKumar[1]. This Court, therefore, observed that those candidateswho were selected as a result of directions in Saket Kumar[1]shouldnot be thrown out from the process of selection but the candidateswho had used the blades and whiteners should be given theadvantage or benefit in a notional selection. In other words, theselection list was ordered to be re-worked and in case thecandidates who had used blades and whiteners were now foundto be part of the selection list, they be given appropriate advantageincluding selection to the posts in question. It was also directedthat though logically equal number of candidates must be displacedfrom the original list of selection, since those persons had alreadyundergone training and some of them had joined the posts, thosecandidates ought not to be thrown out of service. This Court alsodirected that in the process, the additional number of candidateswho were selected over and above the normal selection should bereckoned as against additional posts and should not be taken to bepart of the original posts for selection.

The principle so devised in HD Shukla[2]was then adopted in theprocess of selection for Police Constables which was going onsimultaneously and consequently the selection list was reworked.Thus all the candidates who had used blades and whiteners wereconsidered in the process of selection and some of them did getselected. In the re-working of the selection list 4429 candidateswere given advantage or benefit in terms of the law declared inHanuman Dutt Shukla[2] which is to say those 4429 candidateswould be taken as additional appointments over and above thenumber of posts for which selection was undertaken.

1 Writ A. No.67782 of 2014, (2015 SCC OnLine All 1250)

2 (2018) 16 SCC 447

AB

C

D

EF

G

H

AIn its judgment dated 16.03.2016 [Ashish Kr. Pandey & 24others vs. State of U.P. and 29 Others[3]], the High Court ofJudicature at Allahabad observed that horizontal reservation wasnot properly worked and as such the State was directed toundertake the process of re-calculating horizontal reservationvacancies afresh. This case was also in relation to the process ofBselection for Sub-Inspectors. Around same time, another decisionwas rendered by the High Court in Manoj Kr. & Others[4]adoptingthe principle in Ashish Kr. Pandey[3]in selection process forConstables.

On 4.5.2018, a decision was rendered by the High Court ofJudicature at Allahabad in Upendra and others vs. State of U.P.Cand Others[5]wherein challenge was raised to certain provisionsof the Reservation Act. It was submitted that going by the conceptof horizontal reservation, it would not be possible to carry forwardthe vacancies to the next selection, in case the appropriate numberof candidates for horizontal reservation were not available. TheDHigh Court accepted the plea and directed that there shall not beany carry-forward of vacancies of horizontal reservation to thenext selection.

Thus the matter was clear that in case appropriate number ofcandidates for filling up seats meant for horizontal reservation werenot available, there would not be any carry forward of suchEvacancies. The order shows that about 2312 vacancies were notfilled up by the State adopting the idea of carry forward principlein horizontal reservation. Therefore, as a result of the directionsissued by the High Court in Upendra’s case, 2312 vacancies mustenure to the advantage of the candidates concerning the presentselection process itself.

FIt is accepted by the learned counsel for the State that the Statedid not undertake any process of selection in respect of those2312 vacancies.

… … …

… … …

GIt is also accepted that apart from these 2312 vacancies, thereare still 982 vacancies to be filled up in the original selection.”In the circumstances this Court directed the State to complete theprocess of selection in respect of 2312 + 982 vacancies in accordance 3 Writ A. No.37599 of 2015 (2016 SCC OnLine ALL 187)4 2017 SCC OnLine ALL 2759H5 Writ C. No.3417 of 2016; 2018 (7) ADJ 37

with law. It was also directed that the principle of reservation would befollowed while filling up these vacancies and that the State would adhereto the required minimum qualifying marks as devised during the processof selection and consider all eligible candidates in accordance with merit.It was also declared: - A

“It is clarified that no candidate shall be excluded from the selectionprocess merely because he had used blade or whitener. In casehis merit position otherwise demands and entitles him to be selected,no prejudice shall be caused to him merely for the use of bladeand whitener.”

B

4. Soon thereafter, apprehension was expressed whether thedirection as aforesaid would apply to male candidates only. Therefore,the order dated 17.09.2019 recorded as under: - C

“Mr. Vinod Diwakar, learned AAG for the State makes a statementthat keeping in view the direction issued by this Court on24.07.2019, no candidate shall be excluded from the selectionprocess merely because he/she had used blade/whitener and incase merit position of the candidate demands and entitles him/herto be selected, no prejudice shall be caused to him/her merely forusing blade/whitener. Statement is taken on record.”

D

5. In compliance of the order dated 24.07.2019, an affidavit dated 13.11.2019 was filed on behalf of the State stating inter alia :- “3.3- In open Category 5 DFF males, 1 DFF female and 187Efemale (General) have been selected. This process completeshorizontal reservation.

4- Cut off marks for different categories are as under- F

Female (General Category) cut off – 274.8928. All the OBC, SCand ST candidates securing more than 313.616 marks have alsobeen selected in open / unreserved category.”

6. Aggrieved by the action on part of the State in not consideringthe claim of OBC female and SC female candidates against the postsmeant for General Category female candidates, this MiscellaneousApplication is preferred submitting inter alia:- G

H

A“13. That a perusal of paragraph 4 of the Compliance Affidavitdated 13.11.2019 filed by the Respondent State reveals that whileall Male Candidates belonging to OBC, SC, ST category securingmore than the cut off marks (313.616) for the Male Candidates inthe General/Open/Unreserved Category have also been selected,the same standard has not been applied to the OBC/SC/ST WomenBCategory Candidates like the Petitioners/Applicants although theyhave obtained more than the cut of marks (274.8928) for the FemaleCandidates in the General/Open/Unreserved Category.

A

14. That it is respectfully submitted that 21 of the Petitioners/Applicants belonging to the Female OBC Category have securedmarks more than the cut off marks for the Female (GeneralCCategory) candidates declared to be selected as per the State’sCompliance Affidavit dated 13.11.2019.”

The Applicants, therefore, pray: -

“(a) Allow the instant application and direct the Respondent Stateto select the Applicants/Petitioners herein [Female OBC/SCDcandidates] who participated in the 2013 Constables RecruitmentProcess and secured higher marks than the Cut off marks(274.8928) for the Female Candidates in the General/Open/Unreserved Category;”

7. Thereafter I.A. No.25611 of 2019 has been filed by similarlysituated candidates claiming similar relief. The Order dated 04.03.2020Epassed by this Court stated: - “In M.A. No.2641 of 2019 the case in respect of two applicants isprojected while in I.A. No.25611/2019 the matter is being agitatedwith respect to other 20 candidates. Issue notice in I.A. No.25611/2019 returnable on 24.3.2020.

Ms. Vibha Dutta Makhija, learned Senior Advocate fairly acceptsthat out of 32 female candidates, 11 candidates belong to thecategory of SC girls while other 21 belong to the category ofOBC girls and that there is no case in so far as candidatesbelonging to SC-girls category are concerned.

F

In so far as OBC girls are concerned, Ms. Vibha Dutta Makhija,Glearned Senior Advocate submits that all these girls had securedmarks greater than cut off namely 274.89 which was declared forfemales (General) category. Our attention is invited to page 110of the Compliance Affidavit which shows that some femalecandidates who had scored marks in the range of 274-275, havebeen selected.

H

It is the submission that the applicant girls of the category of OBCgirls had scored marks greater than those General category girlswho were selected.

One of the submissions sought to be advanced by the learnedcounsel for the State was that the category of OBC Females wasalready exhausted in the first round and the selection which wasundertaken pursuant to the directions issued by this Court inHanuman Dutt Shukla’s[2]case and in cases decided subsequentlyon same lines, was only confined to the candidates who had beendisqualified for having used blades/erasers or whiteners. Sincethe selection was confined to such candidates, and as the categoryof OBC female was already exhausted, no candidates could beappointed from and out of OBC female candidates. However, thefact remains that females coming from General Category whohad secured marks in the range of 274-275, going by Page 110,have definitely been appointed, whereas applicant OBC-girls hadsecured marks greater than them.

It thus, prima facie does not stand to reason how candidates in theGeneral Category could be appointed who had secured lessnumber of marks than the applicant girls.”

8. Thereafter, the Order dated 22.07.2020 passed by this Courtwas to the following effect:- “Mr. Vinod Diwakar, learned AAG for the State submitted that inthe category of Male Constables, OBC, SC and ST candidatessecuring more than the cut-off, namely, 313.616 for Open CategoryCandidates, were also selected in the open/unreserved category.

However, same yardstick was not applied with respect to theFemale Candidates and justification for such exercise was on thebasis of the directions issued by the High Court in its order dated16.03.2016 in Writ Petition No.37599 of 2015 and order dated20.02.2019 in Writ Petition No.18442 of 2018.”

9. The stand taken by the State Government in its affidavits wasas under:- I] Affidavitdated29.11.2019

“A. In the year 2013 selection process was undertaken to fill up41610 posts of police constable (UP civil police/PAC/Fireman).Details are as follows:- A

B

C

D

E

F

G

H

A

Table-1

B

C

B. Horizontal reservation position is as follows- Table-2

D

E

Results were declared on 16-07-2015 after completing requisiteexamination and other procedures. 38315 candidates were declaredsuccessful and 3295 posts remained vacant due to unavailabilityof suitable candidates in respective categories.

F

… … …

C. In compliance of the Hon’ble Supreme Court order dated 24-07-2019, selections have been made against 3295 postsGaccording to merit, keeping in view the reservation policy ofthe government. The result has been declared on 11.11.2019.It is pertinent to mention here that 7100 posts were reservedfor female candidates as against 35500 posts of civil police(Table-2) in which 3550 posts were earmarked for Generalfemale candidates. At this stage OBC and SC femaleHcandidates were already taken in surplus to their required number in respective categories Female candidates were only3062 as against 3550 (Ref. Table-2). Hence, therefore, 188General Female candidates in Open Category have beenselected to fill up their reservation quota against 3550 OpenCategory Female candidates.”

II.Affidavit dated21.07.2020

“13. That it is again reiterated that in Civil Police, out of totalvacancies 3550 were reserved for General Category Women’s,1970 were reserved for OBC, 1491 were reserved for SC and142 were reserved for ST Women’s Candidates. It is againreiterated that the OBC and SC women candidate had alreadybeen selected against the vacancies hence therefore in subsequentselection their merit has not been considered.”

10. Since reliance has been placed by the State on the Orderdated 16.03.2016[3]passed by the Single Judge of High Court of Judicatureat Allahabad in Writ Application No.37599 of 2015, some of the relevantobservations in said Order are quoted here:- “It was, therefore, mandated that upon adjustment/accommodationifthespecialcategory candidate belonging to OBC category scoredhigher marks than his/her counterpart adjusted in open category,cannot be shifted to open category. Shifting would tantamount tovertical reservation which is impermissible and alien to the conceptof horizontal reservation. Horizontal reservation cutacrossverticalreservation,therefore,thereisnoconcept of ‘merit’while makingadjustment/accommodation.

… … …

Learned counsel for the respondents[6] would urge that (i) thewomen selected on merit should be excluded while determiningthe number of women candidates to be adjusted in respectivecategory, (ii) open category being‘open’ basedonmerit,therefore,thecandidatesunder special reservation quota should beaccommodated/adjusted on the basis of their inter se merit in opencategory, irrespective of their social category,(iii) women are aclass, therefore, there can be no discrimination on the basis oftheir social category, (iv) the principles as sought to be urged, ifnot followed, would tantamount to reservation in favour of “uppercaste” which isnottheaimor objectoftheConstitution.

The argument, in my opinion, is not only misconceived, but maliciousand motivated as is being sought to be urged by the petitioners.

6 State of U.P. and its functionaries

A

B

C

D

E

F

G

H

AThe principles for horizontal reservation that is being sought to beurged, if accepted, would necessarily be in teeth of the provisionsof Act, 1993, Government Orders referred to earlier, and theauthoritative pronouncement of the Apex Court. I have no hesitationin observing that both the State and the Board, for the reason bestknown to them, and the Advocate General, assisted by a batteryBof lawyers, with impunity have taken a stand against their ownGovernment Orders and the provisions of Act, 1993. Whenconfronted with a query that the Advocate General was arguingnot only against the Government Orders but also against theprinciples which was continuously being followed by the Board, inprevious selections regarding horizontal reservation; Sri Singh wouldCcontend that the principle adopted by the Board being ‘equitable’,therefore, the State supports the methodology adopted by theBoard. The argument, however, was not supported by any authority,rather the authorities referred, herein above, was relied upon byboth the contesting parties in support of their arguments.

… … ….

D

The questions framed, consequently, are answered as follows:(i) Thecandidatesclaiminghorizontalreservation (women, ex-servicemen and dependent of freedom fighter) cannotbeadjustedenmasseintheopencategorybut would have to be adjusted againsttheir respective social categoryi.e.OBC,SCand ST…….”

E(Emphasis supplied)11. The aforesaid decision of the Single Judge was affirmed inappeal by the Division Bench[7] of the High Court with followingobservations: - “31. While applying the principle of Horizontal Reservation,Fcategory has a role to play as at the point of time when HorizontalReservation is to be pressed, then based on merit candidates inquestion are to be adjusted in their respective category and themale candidates, who are at the bottom of the list as per the merit,will have to make place for women candidate. A candidate, whohas proceeded to make an application for the purposes of HorizontalGReservation under the OBC/SC/ST category, cannot be permittedto change his/her category, whereas in Vertical Reservation onceyou are selected, on merit, such a change is permissible byoperation of law and in view of this, once such is the factualsituation that is so emerging that all the candidates once they have H7 State of UP & Ors. vs. Ashish Kumar Pandey & Ors. : 2016 SCC OnLine All 2611

specified their category in reference of Special Reservation, thenthey have to be adjusted in their respective categories and thereservecategorycandidatecannotaskforplacement against opencategory by claiming that they have higher merit,inasmuchas,onlyinthematterofVertical Reservation, merit has a role to playwherein the list is finalizedbutatthepointoftimewhenforprovidingHorizontalReservationadjustmentistobemade,then variousadjustments is required to be done as per the formula that hasbeen approved and ratified by the Apex Court that in the matterof horizontal reservation, adjustment would be made by makingappropriate placement in appropriate categories. Apex Court wasconscious of this fact, that such a provision may be subjected tomisuse and accordingly, position was sought to be clarified bygiving examples and then providing that if horizontal reservation isnot satisfied, the requisite number of special reservation candidatehas to be taken and accommodated/adjusted against theirrespective social reservation categories. Sub-section (3) of Section3 of U.P. Act No.4 of 1993 provides for horizontal reservation tobe applied accordingly, Application of horizontal reservation in thisprescribed manner maintains the merit of special reservation quotacandidate alongwith their representation in service, in view of this,the Learned Single Judge is absolutelyrightatthepointoftimewhenhehas proceededtocriticisetheStateGovernmentfortakingsuch a standand for adheringto a procedure that was not atallprescribedinlawandthuscrossingthelimitof reservation of 50%,in view of this, the order passed by Learned Single Judge doesnot deserve interference on this aspect of the matter.”

(Emphasis supplied)

12. The observations in the Order dated 20.02.2019 passed by theDivision Bench of the High Court of Judicature at Allahabad in PramodKumar Singh and Others vs. State of U.P. and Others[8]are also reliedupon by the State Government. In that case the horizontal reservationfor dependants of Freedom Fighters, Ex. Servicemen and women in thevery same selection for Police Constables was in issue. The DivisionBench of the High Court dealt with the Note submitted on behalf of theState which indicated the steps undertaken to determine and fill up seatsfor various categories as under:- “The procedure as set forth for completion of the recruitmentexercise is then described in the following terms:

A

B

C

D

E

F

G

A

B

C

D

E

F

G

“Step 3.1From List -1 select 19158 candidates in opencategory in order of their merit (Total Marks). This list maycontain candidates from any state or any reserved categories(OBC/SC/ST) also. Let us call this list as List 1-A.

Step 3.2 Now select 10345 candidates of OBC Category fromthe candidates left after Step 3.1 from the List-1. This willinclude only OBC candidates with domicile of U.P. Let us callthis list as List-1-B.

Step3.3Now select 8046 candidates of SC Category fromthe candidates left after Step 3.1 from the List-1. This willinclude only SC candidates with domicile of U.P. let us call thislist as List 1-C.

Step3.4Now select 766 candidates of ST Category from thecandidates left after Step 3.1 from the List-1. This will includeonly ST candidates with domicile of U.P. let us call this list asList 1-D.

Step 3.5If number of candidates in List-1-C is less than therequired number 8046 for SC Candidates from shortage will befilled from ST candidates remaining after step 3.4 if available.If required quota of SC remains unfilled, then number ofshortage posts should be shown separately. Similarly if numberof for ST candidates then shortage will be filled from SCcandidates remaining after Step 3.3, if available. If required ofST still remains unfilled then number of shortage posts shouldbe shown separately.

Step 3.6In this way four lists of candidates will be preparedas follows:

Step4prepare a separate list of remaining candidates fromList-1 who are not included in List-1-A, 1-B, 1-C and 1-D. Letus call this list as List-1.

Step 4.1 Now count the number of DFF candidates belongingto General Category (having domicile of U.P.) from the List-1-A. The candidates should not be OBC/SC/ST category. Ifnumber of candidates is 383 or more, then nothing needs to bedone, otherwise select the shortfall of candidates of generalcategory belonging to DFF on merit from the List-2 (Onlycandidates not belonging to OBC, SC & ST category)and adjust/insert them in after removing equal number ofcandidates from the bottom of List-1-A except GeneralCategory DFF, Ex-Servicemen, female and home guardcandidates ( any candidate who is eligible for horizontalreservation)”.

The High Court then directed as under:-

“These writ petitions are therefore disposed of with a directionto the State respondents to proceed forward with expeditionand conclude the selection process strictly in accordance withthe procedure detailed in the Note filed along with the personalaffidavit of the Secretary. This Court while passing this orderhas not considered the individual grievances or objections ofthe petitioners and has only considered the principal submissionsnoticed above. In view thereof, all individual claims as raisedby the petitioners may be raised after declaration of final resultsand all contentions on merits in that respect are kept open.”

13. Appearing for the Applicants, Ms. Vibha Datta Makhija andMr. Gopal Sankaranarayanan, learned Senior Advocates, have submittedthat the stand taken by the State is completely opposed to the principleslaid down by this Court and that the conclusions drawn in the Orders ofthe High Court which are relied upon, were also incorrect.

14. Mr. Vinod Diwakar, learned Additional Advocate General,appearing for the State, has submitted that the Order dated 16.03.2016was recognised by this Court in its decision in Alok Kumar Singh andothers vs. State of Uttar Pradesh and others[9]and the State beingbound by the observations of the High Court as quoted above, did notconsider the claim of ‘OBC Female Category’ candidates against theposts meant for ‘General Female Category’.

15. At this stage, the stand taken by the State Government in itswritten submissions must also be adverted to:- “10. That in compliance of the order dated 16.03.2016 passed bythe Hon’ble High Court in Writ Petition No. 37599 of 2015 titledas Ashish Kumar Pandey & Another[3]and order dated 20.02.2019passed in Writ Petition No. 18442 of 2018 titled as Pramod Kumar 9 (2019) 14 SCC 692

AB

C

D

E

F

G

H

ASingh & Ors[8], a separate select list of 2052 General FemaleCandidates were declared on 10.06.2019 for fulfilling the 20%Horizontal Reservation embarked for women’s and entire selectlist was redrawn. The OBC and SC Women Candidates were notconsidered in the select list as their horizontal quota were alreadyexhausted in the previous list.”

B16. Thus, the facts which stand accepted or admitted on recordare as under:-

a) In pursuance of the directions issued by this Court in its Orderdated 24.07.2019, selection to the 3295[10] posts in accordancewith merit and consistent with reservation policy of theGovernment was undertaken by the State Government.C

b) According to the results declared on 11.11.2019, 188 posts in‘General Female Category’ were filled up.

c) While filling up said 188 posts, the claim of ‘OBC FemaleCandidates’ was not considered or taken into account.

d) The last candidate appointed in the category of ‘GeneralFemale’ had secured 274.8298 marks.D

e) Applicant no.1 Ms. Sonam Tomar had secured 276.5949 marksi.e. greater than the candidate with 274.8298 marks but herclaim was not considered.

f) 21 such applicants who come from the category of ‘OBCFemale’ are before this Court who had secured more than274.8928 marks.E

In the backdrop of these admitted facts, the action on part of theState Government in refusing to consider the claim of ‘OBC FemaleCategory’ candidates in respect of ‘General Female Category’ seatsis in question in the present matter. It must be mentioned that no ‘SCFemale Category’ candidates who were not selected, had secured moreFmarks than 274.8928. Therefore, the claim of Applicant no.2 and othersimilarly situated ‘SC Female Category’ candidates does not stand onthe same footing.

17. At the outset, it needs to be considered whether the decisionin Alok Kumar Singh[9]had recognized the Order dated 16.03.2016 ascontended. The observations in the decision of this Court were:-G“9. It may be mentioned here that in terms of the decision[3]of aSingle Judge of the High Court of Allahabad rendered on 16-3-2016 which was confirmed by the Division Bench by its judgmentand order dated 29-7-2016[7], in connection with horizontalreservation to be adopted while finalising the result, another revised 10 Though the Order dated 24.07.2019 mentioned the figure to be 3294 (2312+982),Haccording to the State, the actual figure is 3295.

final result was published on 29-11-2016. Since no grievance ismade on this count, we have refrained from going into the detailsin respect of such challenge and the consequences as a result ofsuch directions.”

The narration of events was only to note the effect of the orderdated 16.03.2016 and the affirmation thereof in appeal, as a result ofwhich revised final list was published on 29.11.2016. As the observationsindicate, this Court had not gone into the details in respect of challengeentertained by the High Court as no occasion had arisen for suchconsideration. We, therefore, reject the submission that the Order dated16.03.2016 stood approved by this Court.

18. As a first step while considering the validity and correctnessof the actions on part of the State Government, we may note some ofthe decisions of this Court touching upon the issue of horizontal reservation:

A) Jeevan Reddy, J. speaking for himself and on behalf of threeJudges of this Court in Indra Sawhney and Others vs. Union of Indiaand others[11]observed as under:-

“812. We are also of the opinion that this rule of 50% applies onlyto reservations in favour of backward classes made under Article16(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 called verticalreservations whereas reservations in favour of physicallyhandicapped [under clause (1) of Article 16] can be referred to ashorizontal 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.”

A

B

C

DE

F

G

H

AB) In Swati Gupta (Ms.) vs. State of U.P. and others[12], theeffect of para 2 of G.O. dated 17.05.1994 was considered by a bench oftwo Judges of this Court and it was stated:- “3. Similarly, the other defect in the circular reserving 35% seatsfor general category has been removed. The vertical reservationis now 50% for general category and 50% for Scheduled Castes,BScheduled Tribes and Backward Classes. Reservation of 15% forvarious categories mentioned in the earlier circular which reducedthe general category to 35% due to vertical reservation has nowbeen made horizontal in the amended circular extending it to allseats. The reservation is no more in general category. The amendedcircular divides all the seats in CPMT into two categories— one,Cgeneral and other reserved. Both have been allocated 50%. Para2 of the circular explains that candidates who are selected onmerit and happen to be of the category mentioned in para 1 wouldbe liable to be adjusted in general or reserved category dependingon to which category they belong, such reservation is not contraryto what was said by this Court in Indra Sawhney[11]. Whether theDreservation for such persons should have been made or not wasnot challenged, therefore, this Court is not required to examineit.”

C) In Anil Kumar Gupta and others vs. State of U.P. andothers[13], a bench of two Judges of this Court explained the concept ofoverall reservation as against compartmentalized reservation and detailedEthe steps to be undertaken while filling up seats for vertical and horizontalreservation as under:-

“15. On a careful consideration of the revised notification of17-12-1994 and the aforementioned corrigendum issued by theLucknow University, we are of the opinion that in view of theambiguous language employed therein, it is not possible to give aFdefinite answer to the question whether the horizontal reservationsare overall reservations or compartmentalised reservations.We may explain these two expressions. Where the seats reservedfor horizontal reservations are proportionately divided among thevertical (social) reservations and are not intertransferable, it wouldbe a case of compartmentalised reservations. We may illustrateGwhat we say: Take this very case; out of the total 746 seats, 112seats (representing fifteen per cent) should be filled by specialreservation candidates; at the same time, the social reservation infavour of Other Backward Classes is 27% which means 201 seatsfor OBCs; if the 112 special reservation seats are also divided 12 (1995) 2 SCC 560H13 (1995) 5 SCC 173

proportionately as between OC, OBC, SC and ST, 30 seats wouldbe allocated to the OBC category; in other words, thirty specialcategory students can be accommodated in the OBC category;but say only ten special reservation candidates belonging to OBCare available, then these ten candidates will, of course, be allocatedamong OBC quota but the remaining twenty seats cannot betransferred to OC category (they will be available for OBCcandidates only) or for that matter, to any other category; thiswould be so whether requisite number of special reservationcandidates (56 out of 373) are available in OC category or not;the special reservation would be a watertight compartment in eachof the vertical reservation classes (OC, OBC, SC and ST). Asagainst this, what happens in the overall reservation is that whileallocating the special reservation students to their respective socialreservation category, the overall reservation in favour of specialreservation categories has yet to be honoured. This means that inthe above illustration, the twenty remaining seats would betransferred to OC category which means that the number ofspecial reservation candidates in OC category would be 56+20=76.Further, if no special reservation candidate belonging to SC andST is available then the proportionate number of seats meant forspecial reservation candidates in SC and ST also get transferredto OC category. The result would be that 102 special reservationcandidates have to be accommodated in the OC category tocomplete their quota of 112. The converse may also happen, whichwill prejudice the candidates in the reserved categories. It is, ofcourse, obvious that the inter se quota between OC, OBC, SCand ST will not be altered.

16. Now coming to the revised notification of 17-12-1994, it saysthat “horizontal reservation be granted in all medical collegeson total seats of all the courses…”. These words are beinginterpreted in two different ways by the parties; one says it isoverall reservation while the other says it is compartmentalised.Para 2 says that the candidates selected under the aforesaid specialcategories “would be kept under the categories of ScheduledCastes/Scheduled Tribes/Other Backward Classes/General towhich they belong. For example, if a candidate dependent on afreedom fighter selected on the basis of reservation belongs to aScheduled Caste, he will be adjusted against the seat reserved forScheduled Castes”. This is sought to be read by the petitionersas affirming that it is a case of compartmentalised reservation.May be or may not be. It appears that while issuing the saidnotification, the Government was not conscious of the distinction A

B

C

D

E

F

G

H

A

B

C

D

E

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

between overall horizontal reservation and compartmentalisedhorizontal reservation. At any rate, it may not have had in itscontemplation the situation like the one which has arisen now.This is probably the reason that this aspect has not been stated inclear terms.

17. It would have been better — and the respondents may notethis for their future guidance — that while providing horizontalreservations, they should specify whether the horizontal reservationis a compartmental one or an overall one. As a matter of fact, itmay not be totally correct to presume that the Uttar PradeshGovernment was not aware of this distinction between “overallhorizontal reservation” and “compartmentalised horizontalreservation”, since it appears from the judgment in Swati Gupta[12]that in the first notification issued by the Government of UttarPradesh on 17-5-1994, the thirty per cent reservation for ladieswas split up into each of the other reservations. For example, itwas stated against backward classes that the percentage ofreservation in their favour was twenty-seven per cent but at thesame time it was stated that thirty per cent of those seats werereserved for ladies. Against every vertical reservation, a similarprovision was made, which meant that the said horizontalreservation in favour of ladies was to be a “compartmentalisedhorizontal reservation”. We are of the opinion that in the interestof avoiding any complications and intractable problems, it wouldbe better that in future the horizontal reservations arecompartmentalised in the sense explained above. In other words,the notification inviting applications should itself state not only thepercentage of horizontal reservation(s) but should also specifythe number of seats reserved for them in each of the socialreservation categories, viz., ST, SC, OBC and OC. If this is notdone there is always a possibility of one or the other verticalreservation category suffering prejudice as has happened in thiscase. As pointed out hereinabove, 110 seats out of 112 seats meantfor special reservations have been taken away from the OCcategory alone — and none from the OBC or for that matter,from SC or ST. It can well happen the other way also in a givenyear.

18. Now, coming to the correctness of the procedure prescribedby the revised notification for filling up the seats, it was wrong todirect the fifteen per cent special reservation seats to be filled upfirst and then take up the OC (merit) quota (followed by filling ofOBC, SC and ST quotas). The proper and correct course is tofirst 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; thethird step would be to find out how many candidates belonging tospecial reservations have been selected on the above basis. If thequota fixed for horizontal reservations is already satisfied — incase it is an overall horizontal reservation — no further questionarises. But if it is not so satisfied,therequisitenumberofspecialreservation candidatesshallhavetobetakenand adjusted/accommodatedagainsttheirrespectivesocial reservationcategoriesbydeletingthecorresponding number of candidatestherefrom. (If, however, it is a case of compartmentalised horizontalreservation, then the process of verification and adjustment/accommodation as stated above should be applied separately toeach of the vertical reservations. In such a case, the reservationof fifteen per cent in favour of special categories, overall, maybe satisfied or may not be satisfied.) Because the revisednotification provided for a different method of filling the seats, ithas contributed partly to the unfortunate situation where the entirespecial reservation quota has been allocated and adjusted almostexclusively against the OC quota.”

(emphasis supplied)

(emphasis supplied)

D) In Rajesh Kumar Daria etc. vs. Rajasthan Public ServiceCommission and others[14], a bench of three judges of this Courtconsidered the difference between vertical and horizontal reservationsas 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 described thus:“For SC: 21 posts for men and 9 posts for women, in all 30 posts.”Obviously, there is, and there can be, no reservation category of“male” or “men”.

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

C

D

E

F

G

H

Abelonging to such Backward Class, may compete for non- reservedposts 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 ofBposts 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 selected underopen competition category. (Vide Indra Sawhney[11], R.K.Sabharwal v. State of Punjab[15], Union of India v. Virpal SinghChauhan[16]and Ritesh R. Sah v. Dr. Y.L. Yamul[17].) ButtheCaforesaid principleapplicabletovertical(social)reservationswillnotapplytohorizontal(special)reservations.Where a specialreservation for women is provided within the social reservationfor Scheduled Castes, the proper procedure is first to fill up thequota for Scheduled Castes in order of merit and then find out thenumber of candidates among them who belong to the specialDreservation group of “Scheduled Caste women”. If the number ofwomen in such list is equal to or more than the number of specialreservation quota, then there is no need for further selectiontowards the special reservation quota. Only if there is any shortfall,the requisite number of Scheduled Caste women shall have to betaken by deleting the corresponding number of candidates fromEthe 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 verticalreservation quota will be counted against the horizontal reservationfor women.Let us illustrate by an example:

If 19 posts are reserved for SCs (of which the quota for womenis 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 SCwoman 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 19

F

G

15 (1995) 2 SCC 74516 (1995) 6 SCC 684H17 (1996) 3 SCC 253

selected 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 quota for“general category women”. There was thus no need for any furtherselection of woman candidates under the special reservation forwomen. But what RPSC did was to take only the first 48 candidatesin the order of merit (which contained 11 women) and thereafter,fill the next 11 posts under the general category with womancandidates. As a result, we find that among 59 general categorycandidates in all 22 women have been selected consisting of elevenwoman 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) andanother eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75,77, 78, 79 and 80 of the selection list) included under reservationquota for “general category women”. This is clearly impermissible.The process of selections made by RPSC amounts to treating the20% reservation for women as a vertical reservation, instead ofbeing a horizontal reservation within the vertical 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 categoryof “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 the shortfallto make up the quota of five for women.”

(emphasis supplied)

E) In K. Krishna Murthy (Dr.) and others vs. Union of Indiaand another[18], a Constitution Bench of this Court observed that seatsearmarked for women belonging to the General Category are not A

BC

D

EF

G

H

Aaccounted for, if one has to gauge whether the upper ceiling of 50% hasbeen breached. The observations were as under:- “44. With respect to the State legislations under challenge, it wasargued that the 50% ceiling would not be crossed under most ofthem since it is only the vertical reservations (i.e. on communallines in favour of SCs/STs/OBCs) that are taken into considerationBfor this purpose. Even though there is a 33% reservation in favourof women in elected local bodies, the same is in the nature of ahorizontal reservation which intersects with the vertical reservationsin favour of SCs/STs/OBCs. In such a scenario, the seats occupiedby women belonging to the general category cannot be computedfor the purpose of ascertaining whether the 50% upper ceilingChas been breached.

… … …

… … …

64. In the absence of explicit constitutional guidance as to thequantum of reservation in favour of backward classes in localself-government, the rule of thumb is that of proportionatereservation. However, we must lay stress on the fact that theDupper ceiling of 50% (quantitative limitation) with respect tovertical reservations in favour of SCs/STs/OBCs should not bebreached. On the question of breaching this upper ceiling, thearguments made by the petitioners were a little misconceived sincethey had accounted for vertical reservations in favour of SCs/STs/OBCs as well as horizontal reservations in favour of womenEto assert that the 50% ceiling had been breached in some of theStates. This was clearly a misunderstanding of the position sincethe horizontal reservations in favour of women are meant tointersect with the vertical reservations in favour of SCs/STs/OBCs,since one-third of the seats reserved for the latter categories areto be reserved for women belonging to the same. This means thatFseats earmarked for women belonging to the general categoryare not accounted for if one has to gauge whether the upper ceilingof 50% has been breached.”

F) In Public Service Commission, Uttaranchal etc. vs. MamtaBisht and others[19], the view taken by the High Court that one NeetuJoshi, on her own merit, was entitled to be considered in General categoryGand as such she could not be counted against seats reserved for“Uttaranchal Mahila” category; was under challenge. A bench of twoJudges of this Court set aside the view taken by the High Court withfollowing observations:- “3. Out of 42 posts, 26 were filled up by general category and 16by reserved category candidates. Some women candidates stoodselected in the general category while others had been given thebenefit of horizontal reservation being residents of Uttaranchal.Respondent 1, being aggrieved preferred Writ Petition No. 780of 2003 (M/B) in the High Court of Uttaranchal seeking quashmentof select list dated 31-7-2003 mainly on the ground that womencandidates 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 also beenpleaded in the petition that some of the women candidates whonot only claimed the benefit of horizontal reservation but havebeen selected giving the said benefit, did not submit their respectivecertificate of domicile at the time of filling up the application formsbut they produced the said certificate at a later stage and it wasaccepted.

4. The High Court accepted the first submission of Respondent 1after examining the record of selection and came to the conclusionthat the last selected woman candidate who was given the benefitof horizontal reservation for Uttaranchal women had secured markshigher than the last selected candidate in the general category.Thus, the said candidate ought to have been appointed against thegeneral category vacancy and Respondent 1 ought to have beenoffered the appointment giving her the benefit of horizontalreservation for Uttaranchal women. Hence, these appeals.

… … …

13. In fact, the High Court allowed the writ petition only on theground that the horizontal reservation is also to be applied as verticalreservation in favour of reserved category candidates (social) asit 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 beencounted for 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.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

14. The view taken by the High Court on application of horizontalreservation is contrary to the law laid down by this Court in RajeshKumar Daria v. Rajasthan Public Service Commission[14],wherein dealing with a similar issue this Court held as under: (SCCpp. 790-91, para 9)

“9. The second relates to the difference between the nature ofvertical 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,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[11], R.K.Sabharwal v. State of Punjab[15], Union of India v. VirpalSingh Chauhan[16]and Ritesh R. Sah v. Dr. Y.L. Yamul[17].) Butthe aforesaid principle applicable 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,the proper procedure is first to fill up the quota for ScheduledCastes in order of merit and then find out the number ofcandidates among them who belong to the special reservationgroup of ‘Scheduled Caste women’. If the number of womenin such list is equal to or more than the number of specialreservation quota, then there is no need for further selectiontowards the special reservation quota. Only if there is anyshortfall, the requisite number of Scheduled Caste women shallhave to be taken by deleting the corresponding number ofcandidates from the bottom of the list relating to ScheduledCastes. To this extent, horizontal (special) reservationdiffers from vertical (social) reservation. Thus womenselected on merit within the vertical reservation quota will becounted against the horizontal reservation for women.”

(emphasis added)

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[14]. The judgment andorder impugned herein is liable to be set aside and all theconsequential orders become unenforceable and inconsequential.Thus, the appeals succeed and are allowed. The judgment andorder of the High Court dated 26-10-2005 passed in Writ PetitionNo. 780 of 2003 (M/B) is hereby set aside. No costs.”

19. Paragraph 9 of Rajesh Kumar Daria etc. vs. RajasthanPublic Service Commission and others[14]referred to the well-establishedprinciple that a candidate belonging to any of the vertical reservationcategories, on the basis of his own merit, is entitled to be selected in theOpen or General Category and in such eventuality his selection is notto be counted against the quota reserved for such vertical reservationcategory. We may for the sake of clarity reproduce the following extractfrom the decision in Ritesh R. Sah vs. Dr. Y.L. Yamul and Others[17]which noted the larger Bench decisions in Indra Sawhney vs. Union ofIndia[11]and R. K. Sabharwal vs. State of Punjab[15]and stated:- “13. There cannot be any dispute with the proposition that if acandidate is entitled to be admitted on the basis of his own meritthen such admission should not be counted against the quotareserved for Scheduled Caste or Scheduled Tribe or any otherreserved category since that will be against the constitutionalmandate enshrined in Article 16(4).

14. In a case Indra Sawhney v. Union of India[11]commonlyknown as Mandal case, this Court held thus: (SCC p. 735, para811)

“In this connection it is well to remember that the reservationsunder 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 onthe basis of their own merit; they will not be counted againstthe quota reserved for Scheduled Castes; they will be treatedas open competition candidates.”

15. In R.K. Sabharwal v. State of Punjab[15]the ConstitutionBench of this Court considered the question of appointment andpromotion and roster points vis-à-vis reservation and held thus:(SCC p. 750, para 4)

“When a percentage of reservation is fixed in respect of aparticular cadre and the roster indicates the reserve points, ithas to be taken that the posts shown at the reserve points are A

B

C

D

E

F

G

H

A

B

C

D

E

H

to be filled from amongst the members of reserve categoriesand the candidates belonging to the general category are notentitled to be considered for the reserved posts. On the otherhand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the saidposts their number cannot be added and taken into considerationfor working out the percentage of reservation. Article 16(4) ofthe Constitution of India permits the State Government to makeany provision for the reservation of appointments or posts infavour of any Backward Class of citizens which, in the opinionof the State is not adequately represented in the Services underthe State. It is, therefore, incumbent on the State Governmentto reach a conclusion that the Backward Class/Classes forwhich the reservation is made is not adequately represented inthe State Services. While doing so the State Government maytake the total population of a particular Backward Class andits representation in the State Services. When the StateGovernment after doing the necessary exercise makes thereservation and provides the extent of percentage of posts tobe reserved for the said Backward Class then the percentagehas to be followed strictly. The prescribed percentage cannotbe varied or changed simply because some of the members ofthe Backward Class have already been appointed/promotedagainst the general seats. As mentioned above the roster pointwhich is reserved for a Backward Class has to be filled byway of appointment/promotion of the member of the said class.No general category candidate can be appointed against a slotin the roster which is reserved for the Backward Class. Thefact that considerable number of members of a Backward Classhave been appointed/promoted against general seats in the StateServices may be a relevant factor for the State Governmentto review the question of continuing reservation for the saidclass but so long as the instructions/rules providing certainpercentage of reservations for the Backward Classes areoperative the same have to be followed. Despite any numberof appointees/promotees belonging to the Backward Classesagainst the general category posts the given percentage has tobe provided in addition.”

16. In Union of India v. Virpal Singh Chauhan[16](SCC at p.705) it has been held that while determining the number of postsreserved for Scheduled Castes and Scheduled Tribes, the

candidates belonging to reserved category but selected/promotedon the rule of merit (and not by virtue of rule of reservation) shallnot be counted as reserved category candidates.”

20. None of the decisions referred to hereinabove however hadan occasion to consider whether the principle as stated in decisionsreferred to in the preceding paragraph also apply to cases of horizontalreservation. We may, at this stage, consider some of the decisions byHigh Courts, which dealt with this question:-

A) In Megha Shetty vs. State of Rajasthan[20], followingobservations were made by the High Court of Rajasthan:- “21. …Once the horizontal reservation in favour of woman ingeneral/open category is to be applied, the candidates belongingto all categories, including SC, ST and OBC, are also entitled tobe considered against the said posts reserved for General Category(Woman).

23. In the present case, it is evident from a bare look at the part ofAdvertisement (Annexure-3) that 13 posts were reserved for OBCcategory. From the result-sheet (Annexure-4) it is seen that outof 42 unserved seats, 4 women candidates found place and,therefore, they were counted against the horizontal reservationprovided for woman and thereafter, 9 more women candidates inorder of their merit were selected which included candidatesbelonging to General as well as OBC Category. It is also noticedthat in the main list, 3 women candidates belonging to OBC(Woman) found place on their own merits and after taking 9candidates against General (Woman) Category which includedOBC (Woman) also, further reservation has not been providedqua 2 posts despite the fact that 5 posts were reserved for OBC(Woman), which clearly shows that the horizontal reservation wascorrectly applied.

24. The plea sought to be raised by the appellant regardingimpermissibility for migration from OBC (Woman) to General(Woman) in case of special reservation under Article 15(3) ofthe Constitution of India also apparently has no applicability in thepresent case, inasmuch as, once the candidate belonging to OBC(Woman) category has obtained more marks than a candidatebelonging to the General (Woman) category and, therefore, findsplace in the select list meant for General (Woman), the samecannot even be termed as migration and, therefore, the plea raisedin this regard is without any substance …”

20 2013 (4) RLW 3227 (Raj.)

A

B

C

DE

F

G

H

AA-1) The aforesaid decision was followed in Neelam Sharmavs. State of Rajasthan and Ors.[21]by the same High Court as under:- “6. The Division Bench of this High Court at Jodhpur in Smt.Megha Shetty vs. State of Rajasthan 2014 Volume (1) WLC(Rajasthan) 761 has already dealt with exactly the same issueraised in the present bunch of appeals. The Division Bench relyingBupon the above-referred decisions of the Supreme Court has heldthat in the event of woman candidate belonging to OBC categoryon securing more marks than the woman candidate of generalcategory finds a position in the select list of candidates of generalcategory, the same cannot be treated as migration. And this decisionof the Division Bench is binding on us with which we also fullyCagree. It is also to be noted that none of the writ petitioners/respondents herein who are women of general category hassecured more marks than the women candidate of OBC categoryselected in open category. The select list of women candidatesprepared by the Rajasthan Public Service Commission is strictlyDin accordance with the law explained by the Supreme Court….”Special Leave Petition No. 4312 of 2016 arising therefrom wasdismissed by this Court on 13.05.2016 with following observations:- “Application seeking exemption from filing official translation isallowed. We find no infirmity in the order impugned herein. TheSpecial Leave Petition is dismissed.”EB) In Asha Ramnath Gholap vs. The President, DistrictSelection Committee/Collector[22], the High Court of Bombay consideredthe 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 itssweep all candidates belonging to all categories irrespective ofFtheir caste, class or community or tribe, it is irrelevant whetherthe reservation provided is vertical or horizontal. There cannot betwo interpretations of the words ‘open category’; one applicablefor vertical reservation and other for horizontal reservation.Reservation prescribed may be ‘vertical’ or ‘horizontal’ if it relatesGto open category, the candidate belonging to backward class cannotbe precluded from competing for the said posts on their own meritwith rest of the candidates.

…

…

…

32. … It is thus evident that when three posts were notified to befilled in by the female candidates belonging to open category, itwas open for the petitioner to compete for the said post irrespectiveof the fact that she belongs to the reserved category and whenshe had secured meritorious position amongst the female candidatesand had secured 2nd highest marks, her selection could not havebeen denied by the respondents on the ground that she belongs toscheduled caste and does not fall in the open category…. “

B-1) In Kanchan Vishwanath Jagtap vs. MaharashtraAdministrative Tribunal, Nagpur and others[23], the High Court held:- “We are of the view that if the view of the learned Tribunal isaccepted, then it would result in a situation to exist, which is notpermissible in view of the law laid down by the Constitution Benchof the Apex Court in the case of Indra Sawhney[11]. Merelybecause all the meritorious candidates in the women categorybelonged to the reserved categories like OBC, SC and ST, in ourview cannot be a ground to deny them the benefit of theirmeritorious position. We find that if the view as accepted by thelearned Tribunal is accepted, it will defeat constitutional mandateas explained in the judgment in the case of Indra Sawhney[11]bythe Constitution Bench of the Apex Court. A situation would existthat a male candidate belonging to a reserved category would beentitled to be selected against an open category post if he is entitledon his own merit. However, a female candidate belonging to areserved category, even though she is much more meritorious thana candidate belonging to open category women, would not beentitled to be selected against the said post. The said situation ineffect would result in permitting a discriminatory treatment to thewomen reserved candidates as against the male reservedcandidates. We find that such a situation is not permissible underthe Constitutional scheme as interpreted by the Constitution Benchof the Apex Court in the case of Indra Sawhney[11].”

B-2) In Tejaswini Raghunath Galande vs. Chariman,Maharashtra Public Service Commission, Mumbai and others[24],the High Court set out the facts as under:- “The learned Tribunal relying on the judgement of theHon’ble Apex Court in case of Rajesh Kumar Daria vs.Rajasthan Public Service Commission and ors.[14], held that the 23 (2016) 1 Mah. L.J. 934

24 (2019) 4 Mah L.J. 527

AB

CDEF

G

Aaction of the respondent No.1-MPSC in respect of the applicant,who belong to N.T.(C.) category, in not permitting the applicant toapply from the quota against ‘Open Women Category’ could notbe faulted with and as such the learned Tribunal had rejected theOriginal Application. Being aggrieved by the said order, the presentpetition is filed.”BFollowing the view taken in Asha Ramnath Gholap[22]andKanchan Vishwanath Jagtap[23], the High Court allowed the petitionand set aside the order of the Tribunal.

B-3) In Charushila vs. State of Maharashtra[25], the submissionsof the Advocate General for the State were recorded as under :-“13. The learned Advocate General also submits that there is noCseparate category in law, recognized as “open category”. Firstly,irrespective of their colour i.e. category, in case of education, allthe seats and in case of employment all the posts, as the case maybe, are to be taken together. From and out of the same, the reservedposts/seats are to be taken out and what is left behind is commonlyDknown as ‘open category’ or ‘open competition category’ seats.14. According to him, a reserved category candidate, irrespectiveof whether he/she claims such reservation, as and by way ofvertical or horizontal, is always entitled to claim seat from opencategory on the basis of his/her merit. This is particularly because,the open category or quota as such, is meant for being allottedEonly and only on merit and, therefore, in such an allotment, thecaste, creed or sex or any other criteria, relating to any candidate,does not at all matter.

15. The learned Advocate General further submits that in case acandidate belonging to any reserved category is able to secureallotment of seat, solely on the basis of his/her merit and meritFalone, such allotment cannot consume any seat, reserved for thecategory to which such a candidate belongs. In such a case,such an allotment, does not, in any manner, diminish the seats orthe posts as the case may be, reserved for the category to whichsuch candidate belongs.

G18. He also submits that however, even in case of‘compartmentalized’ horizontal reservations, seats that are allottedto the open category or quota, can be claimed by everybody andanybody who is entitled to basically claim a seat or post as thecase may be, from the open category, which will obviously and of

course, include each and every candidate, from the merit list ofthe open category i.e. all the candidates even belonging to anyreserved category whichever, vertical or horizontal.”

Accepting the submissions of the State, the High Court concluded:-“33. So far as the horizontal reservation is concerned, a differentprocedure has been prescribed, which is recorded in the abovenoted paragraph. In the event of short fall only, after perusal ofthe merit list, such short fall in horizontal reservation categoryshall be met by deleting requisite number of candidates from therespective reserved categories and by substituting them from thesame category. Thus, the horizontal reservation category candidateselected on the basis of merit within the vertical reservation quota,will have to be counted against the horizontal reservation category.

………

………

41. Even in case of compartmentalized horizontal reservations,the seats that are allotted to open category or quota, can be claimedby anybody and everybody, who is entitled to claim a seat or poston the basis of merit, which will include candidates even belongingto open category i.e. all candidates even belonging to any reservedcategory whichever, horizontal or vertical. However, the onlyexception can be carved out, as has been stipulated in the judgmentof the Hon’ble Supreme Court that if the applicable rule or theadvertisement specifically provide to the contrary, such migrationshall not be permitted from the reserved category to the opencategory for claiming compartmentalized reservation provided foropen category. Those candidates belonging to reserved category,who have already enjoyed the benefits during the process ofselection, such as concession in fees, relaxation of age, relaxationin the merit criteria, would not be eligible to claim benefits ofmigration from reserved category to open category for claiming aseat or post.”

B-4) In Shantabai Laxman Doiphode vs. State ofMaharashtra[26], the High Court held:- “……However, in view of the law laid down by the Apex Courtin various judicial pronouncements and discussed in aforestatedcases, it is clear that inspite of the petitioner choosing to be selectedto a post reserved for N.T.(D.) category, the petitioner still couldlegitimately stake her claim to post available under the opencategory and not only that she could do so also to a post horizontally AB

C

D

E

F

G

H

Areserved for women in the open category. In the present case,there is no dispute about the fact that from amongst the threeshort listed women candidates, the petitioner had secured secondhighest 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 forBopen (women) category, the petitioner though eligible in view ofthe settled position of law, was not for the other post. The groundgiven for selecting Smt. Priya Naresh Gajbhiye and rejecting thepetitioner was that though Smt. Priya Naresh Gajbhiye belongedto S.C. category, she had opted for open category while the petitionerhad not. This ground is not tenable in law as we have seen fromCthe judgments discussed earlier.”

A

C) In Uttarakhand Subordinate Service Selection Commissionand Another vs. Ranjita Rana and Another[27], the High Court ofUttarakhand relied upon its earlier decision in Sudhir Kumar vs. Stateof Uttarakhand and others[28]and observed:- D“11. The effect of horizontal reservation, being provided undereach category, is that it is only women, who belong to the OtherBackward Classes, who can compete for posts reserved for OtherBackward Classes (Women) and not women who belong to theScheduled Castes, the Scheduled Tribes and the unreservedcategory. Likewise, it is only women belonging to the ScheduledECastes and the Scheduled Tribes who can compete for postshorizontally reserved in favour of Scheduled Castes (Women) andScheduled Tribes (Women). A woman, not belonging to thereserved category (OBC, SC and ST), is not entitled to competefor posts reserved in favour of Other Backward Classes (Women),Scheduled Castes (Women) and Scheduled Tribes (Women).

F12. The converse, however, is not true. All women, irrespective ofwhether they belong, or do not belong, to the reserved categoryare entitled to compete for posts earmarked in favour of womenunder the General Category. There is no reservation for posts inthe General Category, and horizontal reservation in favour ofwomen in the General Category is available to be filled up fromGamongst all women irrespective of their caste status. Posts,reserved in favour of General Category (Women), are availablefor all women from the State of Uttarakhand, and that would includewomen belonging to the reserved categories such as OBCs, SCs 27 2019 SCC OnLine Utt 481H28 Writ Petition (S/B) No.392 of 2017 dated 11.12.2018

and STs, and women who do not. Holding otherwise, would resultin surreptitious introduction of reservation in favour of those whodo not belong to the socially and educationally backward classes,and a disguised attempt at communal reservation frowned uponby the Supreme Court in The State of Madras Vs. Sm. ChampakamDorairajan and another : AIR 1951 SC 226. This question is nolonger res integra and has, in fact, been answered by a DivisionBench of this Court in Sudhir Kumar Vs. State of Uttarakhandand others (order in Writ Petition (S/B) No. 392 of 2017 dated11.12.2018), which order was affirmed by the Supreme Court inits order in Special Leave to Appeal (C) No. 7801 of 2019 dated15.04.2019.”

D) In Tamannaben Ashokbhai Desai vs. Shital AmrutlalNishar[29], the High Court of Gujarat considered the decisions on thepoint 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 byway of the following illustration based on the factual positionobtaining in the present case.

46. There are 115 posts of Police Inspector (unarmed), out ofwhich 55 posts are reserved for the SC, ST and SEBC andremaining 60 posts for open/general category. Out of the saidposts, 33% are reserved for women under each category, meaningthereby, out of 60 posts in the open category, 20 posts are reservedfor women. Thus, the first step would be that of preparing theentire list on the basis of merit and out of the same, selecting first60 candidates, irrespective of their caste and sex, in open category.The second step would be then of evaluating as to whether 20women, irrespective of their caste, are there within those 60candidates, so as to meet with the requirement of horizontalreservation. If 20 women are already there, then there is no needto select any more woman in that category, but if not, then in thethird step, the remaining number of women have to be includedon the basis of the merit from the aforesaid list, irrespective oftheir caste, while deleting the corresponding number of malecandidates from the bottom of the list of first 60 candidates.Thereafter, identical exercise is required to be undertaken forimplementing vertical reservation, followed by horizontal 29 R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc.decided on 05.08.2020

AB

C

D

E

F

G

H

[2020] 11 S.C.R.

Areservation, with respect to the posts belonging to the SEBC, SCand ST categories.

…

…

…

49. It is pertinent to note that Rule 2(d) seeks to carve out a fourthcategory of posts, not being posts reserved in favour of theScheduled Castes, Scheduled Tribes and Socially and EducationallyBBackward Classes. In other words, this fourth category is nothingbut an Open category of posts, excluding the posts reserved infavour of the above referred classes i.e. the posts reserved forwomen in open category would be over and above the postsreserved for women in SC, ST and SEBC quota, as referred to inCRule 2(a), 2(b) and 2(c) of the said Rules. Thus, all the meritoriouscandidates, whether belonging to the reserved category orunreserved category, will be covered by the category, irrespectiveof their caste, community or tribe where merit alone will be takeninto account, while implementing vertical reservation as well ashorizontal reservation within the same. It may be noted that byDvirtue of the Gujarat Civil Services (Reservation of Posts forWomen) (Amendment) Rules, 2014, the requirement of reservationin favour of women came to be enhanced from 30% to 33%.50. In view of the aforesaid discussion, we have no hesitation inarriving to the conclusion that the Government Resolution dated01.08.2018 of the GAD deserves to be quashed and set aside, andEis hereby quashed and set aside.”The High Court then laid down:-

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &323ORS. [UDAY UMESH LALIT, J.]ST06ASEBC07Step 1:Draw up a list of at least 100 candidates (usually a listof more than 100 candidates is prepared so that there isno shortfall of appointees when some candidates don’tjoin after offer) qualified to be selected in the order ofBmerit. This list will contain the candidates belonging toall the aforesaid categories.Step 2:From the aforesaid Step 1 List, draw up a list of the first51 candidates to fill up the OC quota (51) on the basis ofmerit. This list of 51 candidates may include thecandidates belonging to SC, ST and SEBC.CStep 3: Do a check for horizontal reservation in OC quota. Inthe Step 2 List of OC category, if there are 17 women(category does not matter), women’s quota of 33% isfulfilled. Nothing more is to be done. If there is a shortfallof women (say, only 10 women are available in the Step2 List of OC category), 7 more women have to be added.DThe way to do this is to, first, delete the last 7 malecandidates of the Step 2 List. Thereafter, go down theStep 1 List after item no. 51, and pick the first 7 women(category does not matter). As soon as 7 such womenfrom Step 1 List are found, they are to be brought upand added to the Step 2 List to make up for the shortfallEof 7 women. Now, the 33% quota for OC women isfulfilled. List of OC category is to be locked. Step 2 Listlist 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).F

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 whogot deleted from the Step 2 List to make up for theshortfall of women.

Step 5: Do a check for horizontal reservation in the Step 4 Listof SCs. If there are 4 SC women, the quota of 33% iscomplete. Nothing more is to be done. If there is ashortfall of SC women (say, only 2 women are available),2 more women have to be added. The way to do this isto, first, delete the last 2 male SC candidates of the Step4 List and then to go down the Step 1 List after itemno. 51, and pick the first 2 SC women. As soon as 2such SC women in Step 1 List are found, they are to be GH

A

B

C

D

E

F

G

H

brought up and added to the Step 4 List of SCs to makeup for the shortfall of SC women. Now, the 33% quotafor SC women is fulfilled. List of SCs is to be locked.Step 4 List becomes final. If 2 SC women cannot befound till the last number in the Step 1 List, these 2vacancies are to be filled up by SC men. If in case, SCmen are also wanting, the social reservation quota of SCis to be carried forward to the next recruitment unlessthere is a rule which permits conversion of SC quota toOC.

Step 6:Repeat steps 4 and 5 for preparing list of STs.Step 7: Repeat steps 4 and 5 for preparing list of SEBCs.”57. The State Government as well as the GPSC shall, for all timesto come, bear in mind that the effect of horizontal reservation,being provided under each category, is that it is only women, whobelong to the Other Backward Classes, who can compete for theposts reserved for Other Backward Classes (Women) and notwomen who belong to the Scheduled Castes, the Scheduled Tribesand the unreserved category. Likewise, it is only women belongingto the Scheduled Castes and the Scheduled Tribes who cancompete for the posts horizontally reserved in favour of ScheduledCastes (Women) and Scheduled Tribes (Women). A woman, notbelonging to the reserved category (OBC, SC and ST), is not entitledto compete for posts reserved in favour of Other BackwardClasses (Women), Scheduled Castes (Women) and ScheduledTribes (Women).

58. The converse, however, is not true. All women, irrespectiveof whether they belong, or do not belong, to the reserved categoryare entitled to compete for posts earmarked in favour of womenunder the General Category. There is no reservation for posts inthe General Category, and horizontal reservation in favour ofwomen in the General Category is available to be filled up fromamongst all women irrespective of their caste status. The posts,reserved in favour of General Category (Women), are availablefor all women from the State of Gujarat, and that would includewomen belonging to the reserved categories such as OBCs, SCsand STs, and women who do not. Holding otherwise, would resultin surreptitious introduction of reservation in favour of those whodo not belong to the socially and educationally backward classes,and a disguised attempt at communal reservation has been frownedupon by the Supreme Court in The State of Madras Vs. Sm.Champakam Dorairajan and another : AIR 1951 SC 226.”

21. The view taken by the High Courts of Rajasthan, Bombay,Uttarakhand and Gujarat is thus contrary to the one that weighed withthe High Court of Allahabad. Apart from the Orders referred to inparagraphs 9 to 11 hereinabove, the Full Bench of the High Court ofAllahabad in Ajay Kumar vs. State of U.P. and others[30]held:- “For the aforesaid, to our mind, inter-se merit of women has norole to play in the implementation of horizontal reservation as thesocially reserved candidate (SC, ST, & OBC) seeking benefit ofreservation of special category (women) cannot claim adjustmentin open category.”

The High Court of Madhya Pradesh has also adopted a viewsimilar to that taken by the High Court of Allahabad. In State of MadhyaPradesh and another vs. Uday Sisode and others[31], the High Courtreferred to the decision of this Court in Public Service Commission,Uttaranchal vs. Mamta Bisht[19] and observed:- “18. In the above judgment the High Court had held that sincethe last selected candidate receiving the benefit of horizontalreservation had secured more marks than the last selected generalcategory candidate, therefore, she ought to have been appointedagainst the vacancy in general category. The Hon’ble SupremeCourt has found this view of the High Court contrary to the lawlaid down in the case of Rajesh Kumar Daria.[14]Same is theposition in the present case wherein OBC police personnel receivingthe benefit of horizontal compartmentalised reservation is claimingthe appointment on the ground that he has secured more marksthan the last selected general category candidate, but this can notbe accepted in view of above judgment.

19. The issue relating to the appointment of physically handicappedpersons [horizontal (social) reservation] against the seat of OpenGeneral Category on the basis of higher marks had earlier comeup before the Division Bench of this Court at Gwalior in WA No.414/2017 and the Division Bench had held it to be impermissibleby holding that the concept of migration from one category toanother on the basis of merit may hold good in vertical reservation,but in horizontal reservation the same is not applicable. In thisregard the Division Bench has held as under:—

“9. The question is whether a candidate who opts to take up acompetitive examination not as a General Category/Unreservedcategory but as a reserved category candidate belonging to SC/

30 (2019) 5 ALJ 466

31 (2019) SCC OnLine MP 5750

A

B

C

D

E

F

G

H

AST/OBC, as the case may be, thus competing amongst thecandidates of his category, if obtains marks higher than obtainedby the candidates of a General Category can be permitted toincurs in the General Category. In other words, whether a candidatehaving opted to participate in a competitive examination as areserved category candidate can be permitted to migrate to GeneralBCategory?

A

10. In Indra Swahney v. Union of India, 1992 Supp (3) SCC217 (Paragraph 812), it has been observed—

“812. xxxxxxxxxxxxxxxx

11. Thus, when a reservation is horizontal, then the candidateselected on the basis of reservation in any category has to befixed in said category and cannot be allowed to migrate to othercategory. The concept of migrating from one category to anotheron the basis of merit may hold good in vertical reservation but inhorizontal reservation the same is not applicable.

C

12. In Rajesh Kumar Daria v. Rajasthan Public ServiceDCommission, (2007) 8 SCC 785 : AIR 2007 SC 3127, it has beenheld—

“7-8. Xxxxxxxxxxxxxxxxxxxxxx

13. The impugned judgment when tested on the anvil of the aboveanalysis cannot be faulted with as would warrant any interference.However, we are of the considered opinion, in the given facts ofEthe case that there being no malafides on the part of the Commissionin 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 thereforeset aside the cost imposed.”

20. In the present case the aforesaid judgment of the DivisionBench was not brought to the notice when Writ Appeal was decidedby judgment under review, and a different view has been takenwhich renders the judgment under review per incurium.

F

21. In the present case learned Single Judge has placed relianceupon the judgment in the case of Jitendra Kumar Singh v. StateGof U.P.[32]and in the matter of Deepa E.V. v. Union of India[33]butthese judgments relate to migration of SC, ST, OBC candidates toopen category in case of vertical reservation. These are not thecases where horizontal reservation candidate has been permitted 32 (2010) 3 SCC 119H33 (2017) 12 SCC 680

to take appointment against open category seat on the basis oftheir marks.”

22. The principle that candidates belonging to any of the verticalreservation categories are entitled to be selected in “Open or GeneralCategory” is well settled. It is also well accepted that if such candidatesbelonging to reserved categories are entitled to be selected on the basisof their own merit, their selection cannot be counted against the quotareserved for the categories for vertical reservation that they belong. Apartfrom the extracts from the decisions of this Court in Indra Sawhney[11]and R. K. Sabharwal[15] the observations by the Constitution Bench ofthis Court in Shri V.V. Giri vs. Dippala Suri Dora and Others[34], thoughin the context of election law, are quite noteworthy.

“21. … In our opinion, the true position is that a member of aScheduled Caste or Tribe does not forego his right to seek electionto the general seat merely because he avails himself of theadditional concession of the reserved seat by making the prescribeddeclaration for that purpose. The claim of eligibility for the reservedseat does not exclude the claim for the general seat; it is anadditional claim; and both the claims have to be decided on thebasis that there is one election from the double-memberconstituency.

22. In this connection we may refer by way of analogy to theprovisions made in some educational institutions and universitieswhereby in addition to the prizes and scholarships awarded ongeneral competition amongst all the candidates, some prizes andscholarships are reserved for candidates belonging to backwardcommunities. In such cases, though the backward candidates maytry for the reserved prizes and scholarships, they are not precludedfrom claiming the general prizes and scholarships by competitionwith the rest of the candidates.”

23. The High Courts of Rajasthan, Bombay, Uttarakhand, andGujarat have adopted the same principle while dealing with horizontalreservation whereas the High Court of Allahabad and Madhya Pradeshhave taken a contrary view. These two views, for facility, are referredto as the “first view” and the “second view” respectively. The secondview that weighed with the High Courts of Allahabad and MadhyaPradesh is essentially based on the premise that after the first two stepsas detailed in paragraph 18 of the decision in Anil Kumar Gupta andOthers[13] and after vertical reservations are provided for, at the stage ofaccommodating candidates for effecting horizontal reservation, the34 (1960) 1 SCR 426

A

B

C

D

E

F

G

H

Acandidates from reserved categories can be adjusted only against theirown categories under the concerned vertical reservation and not againstthe “Open or General Category”.24. Thus, according to the second view, different principles mustbe adopted at two stages; in that:-.

(I)At the initial stage when the “Open or General Category”Bseats are to be filled, the claim of all reserved categorycandidates based on merit must be considered and if anycandidates from such reserved categories, on their own merit,are entitled to be selected against Open or General Categoryseats, such placement of the reserved category candidate isCnot to affect in any manner the quota reserved for suchcategories in vertical reservation.

(II)However, when it comes to adjustment at the stage ofhorizontal reservation, even if, such reserved categorycandidates are entitled, on merit, to be considered andaccommodated against Open or General Seats, at that stageDthe candidates from any reserved category can be adjustedonly and only if there is scope for their adjustment in theirown vertical column of reservation.

Such exercise would be premised on following postulates: - (A)After the initial allocation of Open General Category seatsis completed, the claim or right of reserved categoryEcandidates to be admitted in Open General Category seatson the basis of their own merit stands exhausted and theycan only be considered against their respective column ofvertical reservation.

(B)If there be any resultant adjustment on account of horizontalFreservation in Open General Category, only those candidateswho are not in any of the categories for whom verticalreservations is provided, alone are to be considered.

(C)In other words, at the stage of horizontal reservation, OpenGeneral Category is to be construed as category meant forcandidates other than those coming from any of theGcategories for whom vertical reservation is provided.25. The second view may lead to a situation where, while makingadjustment for horizontal reservation in Open or General Category seats,less meritorious candidates may be adjusted, as has happened in thepresent matter. Admittedly, the last selected candidates in Open Generalfemale category while making adjustment of horizontal reservation hadH

secured lesser marks than the Applicants. The claim of the Applicantswas disregarded on the ground that they could claim only and only ifthere was a vacancy or chance for them to be accommodated in theirrespective column of vertical reservation.

26. Both the views can be compared and the issues involved inthis matter can be considered in the light of a hypothetical illustrationwith following assumptions: -

(i) The total seats available are 100; comprising of 50 seatsfor ‘Open/General Category’. The reservation for ScheduledCastes, Scheduled Tribes and Other Backward Classes isat 20%, 10% and 20% respectively and all candidates fromthese reserved categories are otherwise eligible to beconsidered against Open General Category.

(ii) The percentage of seats available for ‘Women’ by way ofcompartmentalized horizontal reservation is 30%.

(iii) Out of all qualified candidates, when first 50 meritoriouscandidates 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 50are–

Sl. No. 46 - Open Category - MaleSl. No 47 - Open Category - MaleSl. No. 48 - Scheduled Caste - MaleSl. No. 49 - Scheduled Caste - Male Sl. No. 50 - Scheduled Caste - Female

(c) first four female candidates in the waiting list, who donot belong to any of the reserved categories, are havingoverall merit position at Serial Nos. 52, 64, 87 and 88.

(d) Going by the steps indicated in paragraph 18 of thedecision in Anil Kumar Gupta and Others[13], at thestage of filling up seats for Scheduled Castes Category,there are 7 females among 20 candidates with last 2candidates being females whose overall ranking in themerit list is at Serial Nos. 80 and 86.

(e) Similarly, the seats for Scheduled Tribes and OtherBackward Categories are filled up.

A

B

C

D

E

F

G

H

A(f) Out of 20 candidates selected in Other BackwardCategory there are 09 females.

The basic features of this illustration can be put in the followingtabular format.

D

27. Having allocated first 50 seats in Open General Categoryand filled up other vertical column of reservation, the next step is toeffect horizontal reservation for women. If the reservation for womenwas to be “overall horizontal reservation”, there are 30 women(11+07+03+09) and nothing further is required to be done.

However, if the horizontal reservation for women is to be takenEas “compartmentalized”, as we are concerned in the present matter andthe instant illustration, the appropriate steps must comprise of following:- (A)Since the shortfall for women is of four seats in Open /General Category, last four male candidates namely thoseat Serial Nos. 46, 47, 48 and 49 initially allocated to Open/General Category, will have to be displaced. The candidateFat Serial No. 50, being a woman, cannot be displaced.

(B)The male candidates at Serial Nos.46 and 47 being fromOpen/General Category, after such displacement will becompletely out of reckoning as they cannot go to anyreserved category.

(C)The candidates at Serial Nos.48 and 49 being moreGmeritorious than the candidates originally placed in thevertical column of reservation for Scheduled Castes, mustgo back to their own vertical column. This will causeresultantdisplacement of two candidates in that vertical column ofreservation. The 20[th] candidate, whose overall merit positionis at Serial No.86, though a female, but being in excess ofH

quota for Scheduled Castes females and a male candidateimmediately above the 19[th] candidate will thus get displaced.

27.1 If we go by the second view, the female candidates at SerialNos.52, 64, 87 and 88 must be accommodated against Open GeneralCategory seats whereas the candidate at Serial No.86, though moremeritorious then those at Serial Nos.87 and 88, must be left without anyseat.

On the other hand, if we go by the first view, the claim of reservedcategory candidates if they are more meritorious, has to be considered,in which case the candidate at Serial No.86 will be required to beaccommodated. Resultantly, the candidate at Serial No.88 must giveway.

There can be various such permutations and combinations and ina given case, the concerned female candidates from reserved categoryin the Waiting List for their respective vertical columns of reservation,may be more meritorious than the female candidates in the Waiting Listfor Open / General Category seats. The instant illustration is given tohighlight the situation that can possibly emerge if the second view isadopted.

28. The second view, based on adoption of a different principle atthe stage of horizontal reservation as against one accepted to be a settledprinciple for vertical reservation, may thus lead to situations where aless meritorious candidate, not belonging to any of the reserved categories,may get selected in preference to a more meritorious candidate comingfrom a reserved category. This incongruity, according to the secondview, must be accepted because of certain observations of this Court inAnil Kumar Gupta and Others[13]and Rajesh Kumar Daria[14]. Thefollowing sentences from these two decisions are relied upon in supportof the second view:- “But if it is not so satisfied, the requisite number of specialreservation candidates shall have to be taken and adjusted/accommodated against their respective social reservationcategories by deleting the corresponding number of candidatestherefrom.” [from paragraph 18 of Anil Kumar Gupta[13]]

“But the aforesaid principle applicable to vertical (social)reservations will not apply to horizontal (special)reservations.” [from paragraph 9 of Rajesh Kumar Daria[14]]29. These sentences are taken to be a mandate that at the stageof horizontal reservation the candidates must be adjusted /accommodatedagainst their respective categories by deleting corresponding number ofcandidates from such categories and that the principle applicable forvertical (social reservation) will not apply to horizontal (special A

B

C

D

E

F

G

H

Areservation). In our view, these sentences cannot be taken as a declarationsupporting the second view and are certainly being picked out of context.

The observations in paragraph 18 in Anil Kumar Gupta andOthers[13]contemplated a situation where if “special reservationcandidates” entitled to horizontal reservation are to be adjusted in a verticalcolumn meant for “social reservation”, the corresponding number ofBcandidates from such “social reservation category” ought to be deleted.It did not postulate that at the stage of making “special or horizontalreservation” a candidate belonging to any of the “social reservationcategories” cannot be considered in Open/General Category. It is truethat if the consideration for accommodation at horizontal reservationstage is only with regard to the concerned vertical reservation or socialCreservation category, the candidates belonging to that category alone mustbe considered. For example, if horizontal reservation is to be appliedwith regard to any of the categories of Scheduled Castes, ScheduledTribes or Other Backward Classes, only those candidates answeringthat description alone can be considered at the stage of horizontalreservation. But it is completely different thing to say that if at the stageDof horizontal reservation, accommodation is to be considered againstOpen/General seats, the candidates coming from any of the reservedcategories who are more meritorious must be side-lined. That was neverthe intent of the observations sought to be relied upon in support of thesecond view.

Similarly, the observations in Rajesh Kumar Daria[14]were in theEcontext of emphasizing a distinguishing feature between vertical andhorizontal reservations; in that:- (a) At the stage of vertical reservation, the reserved categorycandidates selected in Open/General category are not to becounted while filling up seats earmarked for the correspondingreserved categories.F(b) But the same principle of not counting the concerned selectedcandidates is not to apply for horizontal reservation.

Adopting principle (a) at the stage of horizontalreservation, the respondents in Rajesh Kumar Daria[14]hadseparately allocated 11 seats for women in General Categoryas part of special or horizontal reservation, though another setGof 11 women candidates had got selected, according to theirown merit, in General Category quota. The quota of 11 seatsfor women having been already satisfied, this Court negatedthe theory that their number be disregarded while makinghorizontal reservation for women. It was in that context thatthe distinction between vertical and horizontal reservations wasHhighlighted by this Court in paragraph 9 of the decision. The

subsequent sentence “thus women selected on merit withinthe vertical reservation quota will be counted against thehorizontal reservation for women” in the very sameparagraph and the illustration given thereafter are absolutely clear on the point.

30. The decision of this Court in Public Service Commission,Uttaranchal vs. Mamta Bisht[19]was also completely misunderstood.In that case one Neetu Joshi had secured a seat in General Category onher own merit and she also answered the category of horizontalreservation earmarked for “Uttaranchal Mahila”. The attempt on partof Mamta Bisht, the original writ petitioner, was to submit that said NeetuJoshi having been appointed on her own merit in General Category, theseat meant for “Uttaranchal Mahila” category had to be filled up byother candidates. In essence, what was projected was the same standtaken by the respondents in Rajesh Kumar Daria[14], which was expresslyrejected in that case. It is for this reason that para 15 of the decision inPublic Service Commission, Uttaranchal vs. Mamta Bisht[19]expresslyreturned a finding that the judgment rendered by the High Court inaccepting the claim of Mamta Bisht was not in consonance with law laiddown in Rajesh Kumar Daria[14]and the appeal was allowed. Thisdecision is thus not of any help or assistance in support of the secondview.

31. The second view is thus neither based on any authoritativepronouncement by this Court nor does it lead to a situation where themerit is given precedence. Subject to any permissible reservations i.e.either Social (Vertical) or Special (Horizontal), opportunities to publicemployment and selection of candidates must purely be based on merit.Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates willcertainly be opposed to principles of equality. There can be specialdispensation when it comes to candidates being considered against seatsor quota meant for reserved categories and in theory it is possible that amore meritorious candidate coming from Open/General category maynot get selected. But the converse can never be true and will be opposedto the very basic principles which have all the while been accepted bythis Court. Any view or process of interpretation which will lead toincongruity as highlighted earlier, must be rejected.

32. The second view will thus not only lead to irrational resultswhere more meritorious candidates may possibly get sidelined as indicatedabove but will, of necessity, result in acceptance of a postulate that Open/ General seats are reserved for candidates other than those comingfrom vertical reservation categories. Such view will be completelyopposed to the long line of decisions of this Court.

A

B

C

D

EF

G

H

33. We, therefore, do not approve the second view and reject it.The first view which weighed with the High Courts of Rajasthan, Bombay,Uttarakhand and Gujarat is correct and rational.

A

34. It must be stated here that the submissions advanced by theAdvocate General for Uttar Pradesh as recorded in the order dated16.03.2016 before the Single Judge of the High Court (quoted in paragraphB9 hereinabove) were absolutely correct. The Single Judge and the DivisionBench of the High Court completely erred in rejecting the stand takenon behalf of the State. It appears that after such rejection, the Procedurelaid down for completing the recruitment exercise as referred to in theorder 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 candidateCnot belonging to Scheduled Castes, Scheduled Tribes and Other BackwardClasses category alone would be considered against general category.Said Procedure and especially step 4.1 was erroneous but was perhapsguided by the declaration issued by the High Court earlier. On the otherhand, the stand taken by the Advocate General for Maharashtra asrecorded by the High Court of Bombay in Charushila vs. State ofDMaharashtra[25]was correct.

35. We must also clarify at this stage that it is not disputed that theApplicant no.1 and other similarly situated candidates are otherwise entitledand eligible to be appointed in ‘Open/General Category’ and that theyhave not taken or availed of any special benefit which may disentitlethem from being considered against ‘Open/General Category’ seat. TheEentire discussion and analysis in the present case is, therefore, from saidperspective.

36. Finally, we must say that the steps indicated by the High Courtof Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai[29]contemplate the correct and appropriate procedure for considering andgiving effect to both vertical and horizontal reservations. The illustrationFgiven by us deals with only one possible dimension. There could be multiplesuch possibilities. Even going by the present illustration, the first femalecandidate allocated in the vertical column for Scheduled Tribes mayhave secured higher position than the candidate at Serial No.64. In thatevent said candidate must be shifted from the category of ScheduledTribes to Open / General category causing a resultant vacancy in theGvertical column of Scheduled Tribes. Such vacancy must then enure tothe benefit of the candidate in the Waiting List for Scheduled Tribes –Female. The steps indicated by Gujarat High Court will take care ofevery such possibility. It is true that the exercise of laying down aprocedure must necessarily be left to the concerned authorities but wemay observe that one set out in said judgment will certainly satisfy allHclaims and will not lead to any incongruity as highlighted by us in thepreceding paragraphs.

37. Having come to the conclusion that the Appellant No.1 andsimilarly situated candidates had secured more marks than the lastcandidates selected in ‘Open/General Category’, the logical consequencemust be to annul said selection and direct the authorities to do the exercisede novo in the light of conclusions arrived at by us. However, consideringthe facts that those selected candidates have actually undergone trainingand are presently in employment and that there are adequate number ofvacancies available, we mould the relief and direct as under:-

a) All candidates coming from ‘OBC Female Category’ who hadsecured more marks than 274.8928, i.e. the marks secured bythe last candidate appointed in ‘General Category–Female’ mustbe offered employment as Constables in Uttar Pradesh Police.

b) Appropriate letters in that behalf shall be sent to the concernedcandidates within four weeks.

c) If the concerned candidates exercise their option and acceptthe offer of employment, communications in that behalf shallbe sent by the concerned candidates within two weeks.

d) On receipt of such acceptance, the codal and other formalitiesshall be completed within three weeks.

e) Letters of appointment shall thereafter be issued within a weekand the concerned candidates shall be given appropriatepostings.

f) For all purposes, including seniority, pay fixation and otherissues, the employment of such candidates shall be reckonedfrom the date the appointment orders are issued.

g) The employment of General Category Females with cut off at274.8928 as indicated by the State Government in its affidavitsreferred to in paragraphs 5 and 8 hereinabove are not to beaffected in any manner merely because of this judgment.

38. Since it has been accepted that none of the candidates comingfrom ‘SC Female Category’ had secured more marks than 274.8298,the claims of the Applicant no.2 and all similarly situated candidates arerejected.

39. Miscellaneous Application No. 2641 of 2019 and IA No.25611of 2019 are allowed to the aforesaid extent.

WritPetition(Civil) No.237of2020

40. This Writ Petition under Article 32 has been filed by 14 femalecandidates pertaining to the same selection praying for following principalrelief:- “A. Issue an appropriate writ, order or direction in the nature ofmandamus directing the Respondents to absorb/select thepetitioners as against the 375 unfilled vacancies.”

A

B

C

D

E

F

G

H

41. None of these petitioners had secured marks more than274.8298 and as such, their case cannot be considered at par with thatof Applicant no.1 – Ms. Sonam Tomar and other similarly situatedcandidates as discussed hereinabove.

A

42. If there are unfilled vacancies, it is upto the authorities to actpurely in terms of the concerned statutory provisions. Neither any caseBfor issuance of mandamus, as prayed for, has been made out nor do wethink it appropriate to pass any orders directing the concerned authoritiesto absorb the petitioners against unfilled vacancies.43. This Writ Petition is, therefore, without any merit and isdismissed.

CS. RAVINDRA BHAT, J.

1. I am in agreement with the judgment and conclusions of JusticeLalit, and endorse them fully. I am also of the opinion that the viewsexpressed by the Rajasthan High Court (Megha Shetty v State ofRajasthan[1], Neelam Sharma v State of Rajasthan[2]); Gujarat HighCourt (in Tamannaben Ashokbhai Desai v Shital Amrutlal Nishar[3]),Dthe Bombay High Court (in Asha Ramnath Gholap v The President,District Selection Commission/Collector,[4] Kanchan VishwanathJagtap & Anr v Maharastra Administrative Tribunal & Ors,[5]Tejaswini Raghunath Golande v Chairman, Maharastra PublicServices Commission Mumbai & Ors[6], Charushila v State ofMaharashtra,[7] Shantabai Laxman Doiphode v State ofEMaharashtra[8]) and Uttarakhand High Court (in UttarakhandSubordinate Service Selection Commission v Ranjita Rana[9]) - termedas “the first view” in Lalit, J’s judgment, is the correct one, and should beendorsed, and that the view expressed by the Allahabad and MadhyaPradesh (in Ajay Kumar v. State of UP & Ors.[10]and State of MadhyaPradesh & Anr. v. Uday Sisode & Ors.[11]) – called by Justice Lalit asFthe “second view” about the nature of the horizontal reservation forwomen, and the mechanism spelt out (by those judgments) to fill them, 1 2013 (4) RLW

2 2015 SCC (Online) Raj 139

3 R/LPA NO. 1910 in R/Special Civil. App No. 18968/2018 decided on 5.8.2020

4 2016 SCC Online Bom 1623G5 2016 Mah. LJ 934

6 2019 Mah. LJ 527

7 2019 SCC Online Bom 1519

8 2020 SCC Online Bom 1639

9 2019 SCC Online Utt. 481

10 (2019) 5 ALJ 466.H11 (2019) SCC OnLine MP 5750

are not in accord with the previous judgments of this Court. I proposeto, however, add a few reasons of my own and are in no way opposedto the views expressed by Justice Lalit.

2. This judgment is the third in sequence, and deals with arecruitment, for the post of Constable (Civil) and Provincial ArmedConstable (PAC). The first one was delivered on 19.01.2016.[12] It dealtwith the results and exclusion of candidates who had used whitenersand blades, while attempting the selection test. This court had in thatjudgment, held that such applicants’ candidature could not have beenrejected. The second judgment, dated 27.11.2018[13] this court directed asfollows:

“Therefore, total number of candidates who could be selectedin the selection relatable to the year 2011 in any case oughtnot to be less than 4010+1022. Status and identity of thecandidates who form the group of 1022 candidates is veryclear. In this context it is to be noted that the vacancies notifiedare only approximate and there is nothing wrong if the numberincreases in the exigencies of service.

29. We now come to the issue as to what should be the approachin respect of vacant posts on two counts. The tabular chartthen states that 226 posts remained unfilled as a result of non-availability of candidates in the category of dependents offreedom fighters etc. and 607 posts are lying vacant as aresult of candidates who discontinued training or did notqualify in medical examination/character verification.Theoretically, 226 unfilled posts ought to be carried forwardfor further selection as those posts were earmarked fordependents of freedom fighters.”

3. The controversy that arises in the present round of litigation isthe correct method of filling the quota reserved for women candidates(“horizontal quota”). It is the complaint of the applicants, who are largelywomen, belonging to the Other Backward Class categories, that thestate has not correctly applied the rule of reservation, and denied suchOBC women candidates the benefit of “migration”, i.e. adjustment inthe general category vacancies.

4. The U.P. Public Services (Reservation for PhysicallyHandicapped, Dependents of Freedom Fighters and Ex-Servicemen)Act, 1993 (hereafter “the 1993 Act”) provided for reservations to personswith disability, ex-servicemen and dependents of freedom fighters. TheU.P. Public Services (Reservation for Scheduled Castes, Scheduled 12 In HanumantDutt Shukla v State of UP 2018 (16) SCC 447

13 CA No.11370/2018 (Alok Kr. Singh & Others v. State of U.P. & Others)

A

B

C

D

E

F

G

H

ATribes and Other Backward Classes) Act, 1994 is the comprehensivelaw, enacted by the state of UP providing for reservation for socialcategories (SC/ST/OBCs). The provisions of the 1993 Act (for personswith disabilities, ex-servicemen and dependents of freedom fighters[“DFF” hereafter”]) clearly stated by Section 3 (3) that “(3) The persons selected against the vacancies reservedBunder subsection (1) shall be placed in the appropriatecategories to which they belong. For example, if a selectedperson belongs to Scheduled Castes category he will be placedin that quota by making necessary adjustments; if he belongsto Scheduled Tribes category, he will be placed in that quotaby making necessary adjustments; if he belongs to OtherCBackward Class of Citizens, category, he will be placed inthat quota by making necessary adjustments. Similarly. if hebelongs to open competition category, he will be placed inthat category by making necessary adjustments.”

It is thus apparent that the reservations under the 1993 Act were“horizontal” in nature.D

5. The quota provided for women, as well as dependents offreedom fighters (DFF) and ex-servicemen, in the present case arecharacterized as ‘horizontal’ whereas the quotas for social groups (SCs,STs, OBCs) are characterized as ‘vertical’. The coining of this differentialterminology is underscored by the fact that the latter is sanctioned explicitlyin Article 16(4), whereas the former is evolved through a process ofEpermissible classification (Articles 14, 16(1)), although such horizontalreservations have been located additionally in Article 15 (3)[14].

6. In the State of UP, there is no law or rule (framed under provisoto Article 309 of the Constitution) that mandates reservation for women.However, a Government Order was issued, applicable to all posts, on26.2.1999. The government order (GO) issued by the government ofFUttar Pradesh (UP) order providing for horizontal reservation for women,dated 26.02.1999, is extracted below.[15]

“No-14/1/9/Ka-2/4

Personnel Section-2 Lucknow, dated 26 February 1999From,GShri. Sudhir Kumar, Secretary,Government of Uttar Pradesh.

14See Government of Andhra Pradesh v P.B. Vijay Kumar 1995 (4) SCC 520 (this courtheld that “Making special provisions for women in respect of employment or postsunder the State is an integral part of Article 15 (3). This power conferred under Article15 (3), is not whittled down in any manner by Article 16.)”H15 Extracted from Sunaina Tripathi v. State of UP &Ors., (2012) 3 ADJ 463.

To,

1 - All Principal Secretaries / Secretaries, Government of UttarPradesh.

2- All Head of the Department / Head of Office, Uttar Pradesh.

3-All Divisional / District Magistrate, Uttar Pradesh.

Subject: Reservation for women on the process of directrecruitment to public services and posts under the state.Sir, I have been directed to inform that the Government has decidedto provide 20 percent reservation for women on the process of directrecruitment to state public services and posts subject to the followingconditions:

1. Reservation will be applicable to the process of directrecruitment to public services and posts under the state. Therewill be no promotion posts.

2. The reservation will be horizontal in nature i.e. to say thatcategory for which a women has been selected under theaforesaid reservation policy for posts for women in PublicServices and on the posts meant for direct recruitment underState Government, shall be adjusted in the same category only;

3. If a woman is selected on the basis of merit in any statepublic service and post, her selection will be against thevacancy reserved for women in that category.

4. If a suitable women candidate is not available for the postreserved for women in Public Services and on the posts meantfor direct recruitment under State Government, then such apost shall be filled up from amongst a suitable male candidateand such a post shall not be carried forward for future;

5. The qualifications required for women for direct recruitmentto the posts on the services under the state, will continue tobe in accordance with the pre-existing requirements mentionedin the relevant recruitment rules and there will be no changein the position on account of this rule.

6. Public services and posts refer to public services and postsas defined in the Uttar Pradesh Public Service ReservationAct for Scheduled Castes, Scheduled Tribes and OtherBackward Classes.

Please take steps to ensure compliance with the above ordersof the Government. You are also requested to inform all theofficers subordinate to the Government are made aware ofthis order.

A

B

C

E

F

G

H

340SUPREME COURT REPORTS

AYoursSudhir KumarSecretary”

7. As is apparent from a plain reading of the above governmentorder, the only stipulation with respect to treatment of horizontalreservation for women, is that in case a woman candidate is selected,Bshe would be adjusted against the appropriate social category she belongsto (SC/ST/OBC/OC). However, there is no rule, or direction whichprohibits the adjustment of socially reserved categories of women in thegeneral category or “open category”. The first indication of this is inIndira Sawhney[16]where B.P. Jeevan Reddy, J stated as follows:

“Horizontal reservations cut across the vertical reservationsC- what is called interlocking reservations. To be more precise,suppose 3% of the vacancies are reserved in favour ofphysically handicapped persons; this would be a reservationrelatable to clause (1) of Article 16 (1). The persons selectedagainst this quota will be placed in the appropriate category;if he belongs to SC category he will be placed in that quotaDby making necessary adjustments; similarly, if he belongs toopen competition (OC) category, he will be placed in thatcategory by making necessary adjustments. Even afterprovidingfor these horizontal reservations, the percentageof reservations in favourofbackwardclassofcitizensremains-andshould remain - the same. This is how these reservationsEare worked out in several States and there is no reason not tocontinue that procedure.”

8. This rule was affirmed and applied in Anil Kumar Gupta vState of UP[17], Swati Gupta v State of UP[18 ]and Jitendra Kumar Singhv State of UP[19]and Rajesh Kumar Daria v Rajasthan Public ServiceCommission[20]. The manner of filling the horizontal reservation categoryFand the vertical, social categories, was explained in Rajesh Kumar Daria(supra) in the following terms:

“Social reservations in favour of SC, ST and OBC underArticle 16 (4) are ‘vertical reservations’. Special reservationsin favour of physically handicapped, women etc., underArticles 16(1) or 15(3) are ‘horizontal reservations’. Where aGvertical reservation is made in favour of a backward class 16 Indira Sawhney v Union of India 1992 Supp (3) SCC 766, @ para 812 (SCC Reports)]17 1995 (5) SCC 17318 1995 (2) SCC 56019 2010 (3) SCC 119H20 2007 (8) SCC 785

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &ORS. [S. RAVINDRA BHAT, J.]

under Article 16 (4), the candidates belonging to suchbackward class, may compete for non-reserved posts and ifthey are appointed to the non-reserved posts on their ownmerit, their numbers will not be counted against the quotareserved for the respective backward class. Therefore, if thenumber of SC candidates, who by their own merit, get selectedto open competition vacancies, equals or even exceeds thepercentage of posts reserved for SC candidates, it cannot besaid the reservation quota for SCs has been filled. The entirereservation quota will be intact and available in addition tothose selected under Open Competition category. [Vide IndiraSawhney, R. K. Sabharwal vs. State of Punjab, Union of Indiav Virpal Singh Chauvan and Ritesh R. Shah v Dr. Y.L Yamul.But the aforesaid principle applicable to vertical (social)reservations will not apply to horizontal (special) reservations.Where a special reservation for women is provided withinthe social reservation for Scheduled Castes, the properprocedure is first to fill up the quota for scheduled castes inorder of merit and then find out the number of candidatesamong them who belong to the special reservation group of‘Scheduled Castes-Women’. If the number of women in suchlist is equal to or more than the number of special reservationquota, then there is no need for further selection towards thespecial reservation quota. Only if there is any shortfall, therequisite number of scheduled caste women shall have to betaken by deleting the corresponding number of candidatesfrom the bottom of the list relating to Scheduled Castes. Tothis extent, horizontal (special) reservation differs from vertical(social) reservation. Thus women selected on merit within thevertical reservation quota will be counted against thehorizontal reservation for women.”

9. The features of vertical reservations are:

(i) They cannot be filled by the open category, or categories ofcandidates other than those specified and have to be filledby candidates of the concerned social category only (SC/ST/OBC);

(ii) Mobility (‘migration’) from the reserved (specified category)to the unreserved (open category) slot is possible, based onmeritorious performance;

(iii) In case of migration from reserved to open category, thevacancy in the reserved category should be filled by anotherperson from the same specified category, lower in rank, A

B

C

D

E

G

H

A(iv)If the vacancies cannot be filled by the specified categoriesdue to shortfall of candidates, the vacancies are to be ‘carriedforward’ or dealt with appropriately by rules.

10. Horizontal reservations on the other hand, by their nature, arenot inviolate pools or carved in stone. They are premised on their overlapsand are ‘interlocking’ reservations[21]. As a sequel, they are to be calculatedBconcurrently and along with the inviolate ‘vertical’ (or “social”) reservationquotas, by application of the various steps laid out with clarity in paragraph11 of Justice Lalit’s judgement. They cannot be carried forward. Thefirst rule that applies to filling horizontal reservation quotas is one ofadjustment, i.e. examining whether on merit any of the horizontalcategories are adjusted in the merit list in the open category, and then, inCthe quota for such horizontal category within the particular specified/social reservation.

11. The open category is not a ‘quota’, but rather available to allwomen and men alike. Similarly, as held in Rajesh Kumar Daria[22],there is no quota for men. If we are to accept the second view [as heldby the Allahabad High Court in Ajay Kumar v. State of UP[23]and theDMadhya Pradesh High Court in State of Madhya Pradesh & Anr. v.Uday Sisode & Ors[24], referred to in paragraph 20 of Justice Lalit’sjudgement], the result would be confining the number of womencandidates, irrespective of their performance, in their social reservationcategories and therefore, destructive of logic and merit. The second view,therefore – perhaps unconsciously supports- but definitely results inEconfining the number of women in the select list to the overall numericalquota assured by the rule.

12. In my opinion, the second view collapse completely, whenmore than the stipulated percentage 20% (say, 40% or 50%) of womencandidates figure in the most meritorious category. The said secondview in Ajay Kumar[25]and Uday Sisode[26]thus penalizes merit. TheFprinciple of mobility or migration, upheld by this court in Union of Indiav. Ramesh Ram[27]and other cases, would then have discriminatoryapplication, as it would apply for mobility of special category men, but 21 The expression used by B.P Jeevan Reddy, J, in Indira Sawhney (Supra)

22 Supra n. 20

23 Supra n. 10

G24 Supra n. 11

25 Supra n. 10

26 Supra n. 11

27 (2009) 6 SCC 619, by a Constitution Bench of five judges, which took note of thejudgment in Indira Sawhney, where it was held that “811. In this connection it is well to remember that the reservations under Article 16(4)do not operate like a communal reservation. It may well happen that some membersbelonging to, say, Scheduled Castes get selected in the open competition field on theHbasis of their own merit; they will not be counted against the quota reserved for ScheduledCastes; they will be treated as open competition candidates.”

would not apply to the case of women in such special categories (asglaringly evident from the facts of this case) to women who score equalto or more than their counterparts in the open/ general category.

13. The judgments in Anil Kumar Gupta v State of UP[28], SwatiGupta v State of UP[29], and Jitendra Kumar Singh v State of UP[30],were decisions which arose from recruitment cases concerning the stateof UP. In fact in Jitendra Kumar Singh[31], the court even consideredthe question of validity of the horizontal reservations in favour of women,as well as the Government Order of 26.2.1999. The latest in that seriesis a decision of this court in Anupal Singh v. State of U.P[32]where thecourt had to consider, as one of the contentions raised, the questionsimilar to the one which arises for consideration in this case, i.e. whethersocial category horizontal candidates can fill horizontal category vacancies.The court recorded the facts and noticed the contentions of the parties,in the following manner (para 62):

“62. The contention of the private respondents is that as perthe statutory requirement, the horizontal reserved vacancieswere unfilled and those unfilled vacancies of horizontalcategory were filled by vertical reservation candidates/othercategory candidates, which is in violation of the statutoryprovisions vitiating the selection process. On behalf of theU.P. Public Service Commission, Mr Shrish Kumar Misra,learned counsel has furnished the details as to the number ofvacancies reserved for horizontal category and the numberof candidates found suitable and placed in the respectivecategories. The said details are as under:

On behalf of the U.P. Public Service Commission, it wassubmitted that one of the policies of the State Governmentregarding horizontal reservation is that, if the suitable 28 Supra n. 1729 Supra n. 1830 Supra n. 1931 Supra n. 1932 2020 (2) SCC 173

A

B

C

D

E

F

G

H

Acandidates for filling the vacancies reserved for such postsof horizontal reservation are not available and the same arenot carried forward; they are filled up by other suitablecandidates from amongst the candidates belonging to verticallyreserved categories according to their merit. It was submittedthat unfilled horizontal reservation vacancies were thus filledBup by suitable candidates of respective vertical categoriesaccording to their merit which is as per the policy of theGovernment. The High Court was not right in finding faultwith the filling up of vacancies reserved for horizontalreservation with other candidates of respective verticalreservation.”CThereafter the court recorded its conclusions, in the following terms:“84.6. The filling up of the unfilled horizontal reservation bythe candidates from the respective vertical reservation is inaccordance with the policy of the Government and the samecannot be faulted with.”

A

14. In view of these clear decisions, it is too late in the day for theDrespondent state to contend that women candidates who are entitled tobenefit of social category reservations, cannot fill open categoryvacancies. The said view is starkly exposed as misconceived, because itwould result in such women candidates with less merit (in the opencategory) being selected, and those with more merit than such selectedcandidates, (in the social/vertical reservation category) being left out ofEselection.

15. I would conclude by saying that reservations, both vertical andhorizontal, are method of ensuring representation in public services. Theseare not to be seen as rigid “slots”, where a candidate’s merit, whichotherwise entitles her to be shown in the open general category, isforeclosed, as the consequence would be, if the state’s argument isFaccepted. Doing so, would result in a communal reservation, where eachsocial category is confined within the extent of their reservation, thusnegating merit. The open category is open to all, and the only conditionfor a candidate to be shown in it is merit, regardless of whether reservationbenefit of either type is available to her or him.

16. I agree that all applications and WP 237/2020, pending beforeGthis court, are to be disposed of in terms of the operative directions inLalit, J’s judgment.

Ankit Gyan

Writ Petition dismissed and applications partly allowed.

H