A'F'^ —^. L^ 3 [Tl ^i«,n< Ashish Shrtrwa and others v'S.i'SiU^ Stut. of Chhattisgor-r POST FOft OR&ER ON l^h August, 2003 Sd/- '-.C.BHADOQ Judge fe3 -08-2D03 g1 f7D HI6H COURT OF JUDICATiJRE CHHnTTISoARn: BILASPUR w'KTTJ'cTmQN ,2234^F^003 rfc ! 11 lUN'tKO: 1. Ashish Sharma, ny£GuDOUT ^L? y'SuPS, S/o Shr>! ^nibiktX ShQrtno. R/o 5treet No.2, Manqta Road, Sa.nga Nagar, Biiaspur, Sistt. Bilaspur (C.6.) yagnesnwar Mnnavarpu, Aged about 18 yeG"s, S/o Shri A.ft, Krishna Rao ft/o Mannu Chowk, Tikrapara, ri-!^._—^,,^//" /•' \ Bjiaspur' ^C.o.J 4. Sunny UTTamani, Agsd about 20 yeors, S/o Shri ^oDcl U*M'cttnc)fl1 R/o Sector-1, bevendra Nagar, Ralpur {.C.to.) Rahul Shah, fx.ged about ZO yeors, C/- t\^ 1 .,!;+ CL,.,L. h?/'v L/r'. L-iAii i w'HuJi, &/o AA^i" Road, Sc'mts Co!o Raipur (C.(5.) Rajesh Agra.waJ,. Aqed about 22 years, S/o Shri nAohsham Agt-awal, R/o Tckhatpu", Distt. BilasDur (C.G.} Vsrsus niC:CD/~yhsr^C:MTc- ise;s?r*u/'i-'ijU£;iNi <.,?• 1. 5tate of Chhattisgarh, ThfQUQh the Sscf'stGirv, Department of Health, Family VVeifare a AAedicai Education, &.K.S. Bhawan, i">antra!aya, Rc'ipu'", Distt. ftaipur (C.6.) bir-ecto", Medicsi Education, Raipur IC.Q.) bean, AAsdica! Col'ege, Raipur (C.G.) , 4. Richa Soxena, Rank 39/41 5. Himeshwan Ver-ma. Rank 40/42 6. Jyoti Pandey, Rank 41/43 ~7. Mssrc" Fclt'*nG, l<ssnk •42/45 8. Shruti Dubey, Ra-k 44/47 9. Abhishree 6ede, Rank 55/58 10. Apama Bargi, Rank 56/59 11. NeeraDdish.Rank 61/64 No.s.4 +o 11 all C/o &eo.n. Medical C'ollege, KaiDur (C.&.) i-'resent: - Mf. PrashQnt M'shra, .Advoccit^.: For the p^-titioner's Mr. KuViHur-u SinFiVusTuVQ, AQVOeuTG ^^neirCii WiTFt bf. N.K. Shukift. Addittona! .Advocote ^ene-ra! rt?i<i mr. Sanjay K. Agrawal, UepuTy Advocare toeneral: ror responaenTS l TO j Mr. J.b. Bajpoyee and MP. Arun KochQr, AdvocQte-s: For respondent No.9 OR D E R (Passed on /iS/iS. nugust, 2003) L.C. Bhado". J 1- The petitionerSiappeared in the Pre AAedical Test for admission -l-o first year's M.B.B.S. course for the ccaden"iic session 2003-2004 and secured 30T", 31st, 38th, 48tn and 50T" posi+ions in +he werit list prepared by the respondents, have questioned the legaiity, vaiidit/ and propriet)' of the sction of the respondents 1 to 3 by which the respondents after setting aoart 30% seats for women candidates out of 42 seats meant for the op£n cotsgory', pr^peir^d gsnerui rTi£i'it EiSt, They huv'e chuilen< ac+ion of respondents wi+h rego.rd t" o.lloc<i+ion of sects to women candidates is violative of t'ne concept of horizontal reservation. Horizonta! "eservation fo" womsn sn each of the catsgo"/ is under Article 15 (1) of the Constitution of Indio; and not under Article 15 (4), which is m&Ci?it "for vsrticQ ressryQtiQf!. 2. A^tsr Drs'&sr'Qtio" o'f sch£nfls bv ths pssDo"^snts for conductinQ the Q^S.~ medical entrance test, Chha+tisqarh Maidhvamik Shiksha Manda!, Pensicn oudu, Ruipur, issusd £X riOiitiCutlon Oiioriy wuh brochure; invitifii applicotions ond for conducting the pre-medical entrance test 2003 for admitting the students into medicai coiiege, agricuitur-e college and veter'inc.r'y coilege in the State of Chhattisqarh. While issuing the brochure for the said examination the s+udents were csked to opply in c prescribed proforma frorn 22.04.2003 to 11.05.2003. Chapter-2 of the brochurs reioitss to ru!ss 'for cidm'ssion ir> fnsdicQ! clnd dsntal coii£Q63< Ruie 2 of Chapter-2 reiates to the definitions. Sub-rule 2 of ruie 2 defines that category mes.r,s snyone catagory out of three categortes i.e. Scheduled Castes (SC), Scheduled Tribe (ST) and Other Backwsr-d Classes (OBC). Sub-ruie 3 of ruie 3 defines the cadre (class), which scrys thcxt c'nvone out of the thrss cicissss wii! 'forn1 thtf ccidrs i.s. ths soidisr's freedom fighters and women. ftuie 3 prescribes the eliqibiiity criteria for ths Sfudsnts to uDD£ur tat th£ £XuiTtlHOtiiOr>, 5ub~niiC 3 Ot' PlilS ^ prescribes the educational qualification for appearing in the examination. Sub-ruie 4 of ruie 3 prescribes the age; sub-ruie 1 of rule 4 prescribes 15°/o seats for a!l Indin quoto;; and sub-ru'e 2 of ruis 4 prescribes 3% seats for central Dooi. Sub-ruie 4 of rule 4 prescribes that out of tlie reiTiaining seats, 15% seats are reserved for- SC; 21% seats are reserved for ST; Qnd 14% seat-s are reseryed (e-xcept crp-me fo.ir>) for OBC. Sub- ruie 5 prescribes, horizontal reservatlon, 3% for Sainik categor',", 3% for freedcm fighter cadre; and 30% fo" women cadre. Sub-ruie 7 of rule 4 further lavs down ttiat on comoietion of the seats auota of soldiers, freedom fignters and women candidates, a msrit list of e!igib!e candidates w!E be DreDcirsd tn thcir' own ccsteQory Q" the bG5is of thc merit irrespective of cadre, and they wiil be kept at the right place. Sub-rule 9 further lays don-n tha* if sufficisnt number of soldiers, freedom fighters~ ^- (rr^' and women cadre candidates ofe not Ovaiiabie then tns !eft out seots will be coriye-rted "nto without cctdre seats. T^"5 r'uie further Drescribes cxs to how the counseliinq shaii take piace and other pr-ocedure to be adopted for cidmil-ting the students. 3. On the busis of t'n€ br-£uk~up of th6 5£eit3 a'y'uiiuble for each of The eategory, 42 seats remo.ined for unr'eseryed eanciido.tes i.e. open category ond on the basisof the horizontnl reservation (30% reservation) 13 seats ho.ve been reserved fo" •.";o ,en in opsn category. One seat has been reserved for freedom fiahters and one seat for Sainik woman. Bein9 not satisfied with the merit list prepared by resporidents 2 & 3, petitioner No.l Gpproached ths DsQn,, AAsdscot! CoHsge; RQipur; who in turn inforwed petitioner No.l that in accordance with the horizontal reservation for ••vomen candidates, -fi"st!y 13 s&sts have been set <ipa"t for open category women candidates out of 42 open category seats and for the remaining 27 seats, the merit iist of 27 candidates has been prepared on the basis of their merit iM 1iie merit iist frQm S2r''c*! Nos.i to 27 irresDcctive of the fact whether they belonq to SC, ST, OBC or generai category, male or women condidutes, emd thereafter, fi-om amongst the remaining candido.tes, 13 more women candida.tes have been selected considering , that the reservation for women candidates were to be taken-up not from tiis fsrst 27 candidGtss, but therscxftsr. Zn this manner/ out of 42 unreserved/open cat®9oryseats, 25 women ccindidates have been selected which iTieuns that 'un£ total rssery'atiOr'i for womsn in the open cate9ory hos reo.ched wore th<3Ln 65%. 4. Howeyer^ jn +he return fi!ed o" behci!f of re5pQndsnts 1 to 3, it has been stated that there is hier'archy in each of the categories i.e. reservo.tion agsinst ressrvatiori. For sxample, against 1-he seats reserved for Scheduled Caste cateqory, there is aqain reservation for soldiers, freedom fighters and women. 5ince, there is r'eservation against !rts^rv/cttjoi. thsr^fors, it is k"own as horizontc! ressrvQttion. SC, ST and OBC constitute a separate compartment, then in each compartment there c^- is again three sub-compartments j.e. soldiers, freedom fighters and yyQmsn. .4part from the5& coitegori&s, wh'ch are meaint for the purposs; of reservation, there is an unreserved category- In this unreserved csts'QGry, the GdiTiission is iTiods strictly in accordance wi'tti the fnerit cund the persons be!onging to SC, ST, OBC, soldiers, freedom fighters and women are entitied to be piaced a9ainst this unreserved category, if they coms y"ithin the commo?i mefit !ist. Unrsssrysd cateoorv does not me<in that it is only meant for males or it is meant for persons other than SC, ST, OBC, soldiers, freedum fighters and wofflen. In fact, if it is exemplified with the word 'compartment' and .in this compartment, every type of persons i.e. SC, ST, soidiers, freedom fighters and women shall be acco.m!7',odes+ed if he or s.he is meritorious. If this category is applied in •t+ie resuit of PMT examination heid in 2003, the first 27 seats to unreserv'sd cutegory is assigried QS unusr: - i, ^9sn$r*Q! - 20 ssnts inc!udinQ fsmaie. ii. Femaie - 7 seats against OBC. u* of these 20 genera! seats, 8 femaie condidates belonging to general category have become eligibie and out of 7 OBC seats, 3 femaie candiaates are eii9lb!e for admission. It is aiso worthy to mention here 4^<xt hiGhest nflGrks obtcxir'ed by Afun lyer is G woie catndidate beionoinQ to qeneral cateqory who has secured 783 marks, whereas, lowest marks obtained by Ajit AAishra is a!so a maie candidate belonging to general co.tegory who has seeured 744 marks, Thus, ali the candidates who ho.ve become eiigible for admission in the medica! college against unreserved cGtesory hcvc ob+Giwsd miisr*ks bstwesn 783 Gwd 744* 5. A!i-ios* siiTii'ar' "ep'y has besn fi!sd by "espondsnl- No.9. 6. I have hsard f'Ar. Prasharit Mishra, counse! for the petitioners; AAr. Ravindra Shrivastava. Advocate Seneral with Dr. N.K. Shukla, lAdditional Adyocate oenerw and w,r. Sanjay K. Agrawai, Deputy Advocate Senera! for the State/respondsnts 1 to 3; and AAr. J.D. Bajpayee <& Mr. Arun Kochar, counsei for respondent No.9. / ns' 7. In this petition the facts are admitted. The petitioners have questioned the procedure and the manner in which respondents 2 & 3 allocated the sscits to fsmals csdrs ccndidatss i" ths oosn cat^oory ouota bossd on Itieir hori2ontai reservation. As far as the rules position is concerned thers is no dE3put&. OnEy' u !ir»it£dquestion has been raised in this petition i.e, regarding the alloeation of seats to women candidoites in open category based on horizontal reservation. The respondents while issuing brochure for condsjc+i".;i ti"e examinatior! of PMT 2003 for admission of the students to first year of M.B.B.S. cours®have prescribed vertica! sociu! r-eservution under Artic!e 15 (4) of tne Constitution of India to the extent of 50°/o for OC (opsn competi+io") csndidates; 15% for SCs; 21% for STs; 14% for OBCs; and horizontai special reservation under Article 15 (1) of the Constitution of India to the extent of 30% for women canclidates; 3% for freedom fiqhter cadre; ctnd 3% for Sainik coidre, which is evident from sub-ruies 4 a 5 of rule 4. The dispute In this pe+itio" is that responden+s 2 & 3 while a'locating 30% seats to women candidates based on horizontai reservation decided to first sat spart 13 ses-t-s for women candidates ou-t- of 42 open category' seats and thereo.fter, they prepored the merit of remaining 27 seats of open " category ieaying one seat for Sainik cadre and one for freedom fighter ccdrs, bcssd on ths iT.srit posltion sscursd by the coundidates. Zn this cateaory. out of 27 seats. femais candidates secured 12 seats on their own merit at posi-i-ion Nos.4, 5, 9, 11, 13, 14, 15, 17, 19, 20, 22 & 23 and t+ie-se c-andido+e-s were no+ coun+ed oigainst their 30% horizontal reservation quota reserved ror remcxie canaiaaTes. 8. The contention of the learned counsel for the petitioners is that this is not the spir'it behind the horlzonto! reservation. According to his submission, the correct procedure for applying the horizontal reservation is that first respondents 2 & 3 ought to have prepared the list of all the 42 candidates bassd o" ths'" m,erit secured in the examination irrespective of the category and cacire they belon9 and if in the iist of those 42 candidates the quoto of 13 womsn candidates of open category was Giready satisfisd, then ths respondents were not re<{uired to do anything more as 30% horizontai reservation made for (open category) women 'A'CS already completed. If in case, in the merit list of 42 candida+es, 13 (open category) woinen candidatss were not admitted, then respondents 2 a 3 shouid have aiiowed the admission of next female caididates out of the !Te"i+ hst to mak®up and complete the quota of 13 Vi;omen candldates bv deleting eauai number of candidates who were at the bottom of the merit !ist of 42 candidutes. TTierefore, the procedure a.dopted by respondents 2 &. 3 'is yiolatiy®of Article 14 of the Constitution of India Decause by this procedure they have exceeded 50% quota and . ^'. ''•• "eservQtiorfes gone up to 65% instead of 50%, which is v'olative of the Drincioie enunciated bv the Hon'ble Suoreme Court in the ccse of Indra Sawhney etc. etc. vs. union of India and .. re •m A1Q 1993 S> suprem®tourt Cnuri- 477. 9. On the other hand, the 'earned .•Ad'/ocete Senerai submitted that the procedure adopted by respondents 2 & 3 was correct/perfect cmd there is nothiny wrong in the system. He placed heavy reliance on the decision of the Apex Court in the case of Ritesh R- Sah vs. &r. V.L. yamui ond ^ others reported in AIR 1996 Supreme Court 1378 and argued that whiie giving 30% quota to fems'e caididates the responden+s are not required to include those female candidates in this 30% quota who had secured udmission on tiie basis of their own iTierit obtained in the mer-it list in the OG^n c&+e-c>or'v auoto. i.e. tho^e- yyomcn co.ndidates who had secured their position in the merit iist among first 27 candidates cannot be included in 30% seats rese",'ed fo" fema!s candidates. The learned Advocate Seneral also araued that sDeciai reservation could be made foi- women candidates as envisags in Article 15 (3) of the Constitution of India. For this purpose, he re'ied upon the decisiQn of the Apex Court in the case of &ovt. of Andhra Pradesh vs. P.B. 'V'uaykumar and another reported in AIR 1995 Supreme Cour!- 1648. In this connection he aiso placed © reiiance on tne dscision of the npex Court in the case of Asif s"d othsrs "s. Stats of JanfRu & Kashmir artd others reported in AIR 1989 Supreme Courr 1899. The Hon'bie Apex Court in the case of 6ovt. ef Andhra Pr-adesh (supra) hsid tha* special reservation can be made for women under Articie 15 (3) of the Constitution of India. 10, In this C0.se, the petitioners are not ehallenging 30% horizontal reservation prescribed for women candidates. Their only challen9e is that 30% horizonta! reser'vation made for 'A'omen, compartment-wise, cannot be appiied in the manner of vertical reservation which is mean'i' for socially backward ciasses, ol-herwise, there wi!! be no difference between vertical nncl horizo"tn! r'sse-ryotior!. Cominc! to ths Dr'incit)l& laid down bv ths Hon'ble Apex Court in the cases of ftitesh R. Sah (supra) ond Asif HaT.ssd and othsrs (supra), these decisions are regarding yertical reservation and it has been held in these coses that if the SC, ST & OBC candidates are selected on their own merit in open category quota, then they v"ill be considered as open cstegory candidates and they cannot be counted aqainst the reserved categor/ based on vertical reservation. The petitioriers huv'e not i"ui3€d uny obje.ction or disputed this fQCt regardirii this nosition of law held bv the Hon'ble Ane.x Court. \. 11. Zn order to QDnrlRciQ+e- the arQuments of the Eearnecl counsel for the petitioners and the iearned Advocate Senerai, if we look into the scheme prepared by respondents 2 & 3 and pub!ished in the brochure issued for the admission of students, sub-rule 2 defines the category and categories 'nwe. been definsd as SC, 5T d OBC. Sub-rule 3 of rute 2 defines the cadr'e i.e. Sainik. frs;edQm fiahter and WQmG*i. Sub-ruie 4 of ruie 4 iovs down that 15°/o seats are reserved for SC; 21% seats are reservad for ST; and 14% seats are reser-ved for *he OBC. Sub-rule 5 of rule 4 prescribes 30% horizontal reservation for women; 3% for soldiers; and 3% for freedom fighters. Sub-ruie 7 of ruie 4 prescribes that after the seats reser'/ed for soldiers, freedom fightsrs and women condidates are "^' @ exhausted, the avaiiable eh'gibte cundidates shall be kept in their class in aDQroDrictte s^ria! number ""ithout cadrs. 12. Th^rs'fors/ ctboys ru'ss shcw that whiis pr'spainn^ the brochure respondents 2 & 3 prescribed the category of SC, ST d OBC, whereas they put the female candidates in tiie cadre and made horizonto.l reser'vation for them and tha.t ha.s been made compartment-wise i.e. in each cctegory. It is not disputed that this horizontal reservation has bssn made uridsr Artic.'e 15 (1) of ths Constitution of Indic and 50% vertical socia! reservation has been made under Article 15 (4) of the Constitution of Indiu and sepurate cadre has been kept for women c&ndida+es as per sub-ru!e 3 of rule 2. So, from the yery beginnin9, the intention of respondents 1, 2 A 3 was not to put women candidates on par with SC, ST <& OBC bassd on vsrtical "eservotion. Therefore, the cadres which ho.ve been put in the hor'izontal reservation cannot be kept on par with the coindidates of verticai reseryation and thsy are not entitled to ths SQWS- bensf't which has bsen granted to the cotndidates of yertica! reservation i.e. if finy! candidate beionqing to SC, ST, OBC are selected on theii- own merit cnd 1+iey secure position in the open category list, then they eannot be counted aga.inst the reserved category quota i.e. 50% verTical reservaTion. 13. In view of decisions of the Hon'bie flpex Court in the cases of Ritash R. Sah (supra) arid Asif Hameed and others (supra) and looking to the horizontal reservation made for women candidates, I oim of the opinion that the respondents ore not entitisd to first segregate 13 seats for Viiomen candidctes out of 42 open cc+egory seats and then prepare the merit iist of remaining 27 seats after excluding one seat for freedom fighters and one seat for soldfers irrespective of the category or cadre to which they belong. If this principle applies, then it is rightly argued by tiie iearned counsei for the petitioners that this wili exceed the 50% rsser'yatiQ" quota and that u"!!l u'tin'ate.ly be detrimental to the open category canciidates as the same is violative of the principle laid down by 10 the Hon'ble npex Court in the case of Indra Sawhney etc. stc. (supra) as the re.serycEtior! cannQt be sxceeded mor'e than 50%. Zn other words, if that was the intention, then where was the necessity to make hopizonta! "eservation for female candidates, as special reser'/ation under Ar-ticle l' (t) of the Constitution of India. 14. Tn thls connection, it 13 useful to iook o.t the principle enunciated by the Hon'bie Apex Court in the case of Anii Kumar 6upta and others vs. "eported in (1995) 5 Supreme Court Cases Stots of U.P. arsd othsrs "eDorted in (1 173. Aftar analyzinq the position of vertical and horizontal reservation, triK ApSX Court ObSe.r'v'C.u th&t "The Dpoosr ond cor*rsct cour'se for fillinQ thc seats is to fir-st fill UD the OC auota (-50%) on fhe basis of merit; then fiii up ecxch of the sociai reservation quotas, i.e., SC, ST and BC; the third step •/••ou!d be to find out how many candidates be-!on9irl9 ^° specla' rese-ryo.tEons haye been selected on the above basis. If the auota fixed for horizontal reservations is aiready satisfied - in ca.se it is an overall horizontal "eservatiors - no furthe" question arises. But if it is not so so+isfied, the requisite number of special reservation ccmdidates shall have to be taken and adjusted/aceommodated against their respective social "eservo+ion ca+e90"!ss by de!etin9 the corresponding number of condidotes therefrom. (If, however, it is a case of compartmentalised horizontai reservation, then the process of verificution und udjustrnent/ accommodation shou'd be applied sspar'ately to so.ch of the vertical reservations. In such a case, the reseryation of fifteen per cent in fayour of speciai categor'ies, overail, may be .Sutisfied or tTiuy not be soitisfied.) 15. As hos been mentioned above, in the present case, 30% special reservation fo" 'A'omer! has bsen made as compar-i-mentalised horizontal reservation i.e. 13 female condidates are to be 9iven admission out of 42 open ca+e9ory candidutes. As per -t-his princlple, first, respondents 2 & 3 were required to pr'epare a fuil !is+ of open category ccuididates and if in thoit list of 42 candidates of open cateqory, 13 seats fixed for female candidates on the basis of horizonta! "eservatio", quota •/•'as a!ready satisfied then there was no need to go further. In this co.se, it appears from the perusal of merit l&o^ 11 iist that number of gsnerai cal'egory female ccindidates have already secured the'r DQSition in 'Hie mer't !ist and the. Quota of 13 fsmo.ie candidates was aiready completed within first 39 seats as 39 candidate per the merit !ist is a female candidate namely, Poornima Dhcmdale. *L G3 G£F Thus, 30% horizontal reservation nnade for female candidates in open category, compar'tment-wise, was aiready satisfied. Therefore, there was no occss'o" for the respondents to further set apart 13 seats for femaie candidates as their auota was alreadv satisfied. 1 ' 16. For this view, I also find support from the fact that while issuing the ubove brochure regarding the candidutes for Bacheior of Veterinary -Science. 30% hor')20"tex! reservsxtio" for yyot^&n ccyididates was and tha procedure for admission was iaid down in rule 21 (1), in which it has been r-,erttioned that 'n'hile pr-eparing the list, if any candidate of reservsd category has secured his position on the basis of his merit in the open category, then that candidate wili be considered in the open category and he '.'yill be 9iven admission in the open category and quota of the reservation cateqory will be kept as it is for other candidates of reserved cotegory', whereas, this principie will not be dpplicable in the case of horizontal reserva.tion. I further find support from the brochure issued for admission to medicai courses in the year 2002. In that also similar p"ocedurs was adopted for ";o"',er! ccndidaites, but this year (2003), how respondents 2 & 3 have chdnqed the procedure, the reosons are best t<HOWrj tO trltti^Ti. 17. In view of the above, I am of t'ns opinion that the procedure adopted by respQnden+s 2 & 3 i.e. f'rst to set apart 13 seats for women candidates and then to prepare the iist of remaining 27 seats of open category on the basis of ths merit secured by the candidates irrespective of their cateaorv or cadre is not correct. 18. Therefore, the petition of the petitioners deserves to be allowed and the same is aiiowed. Tne procedure for giving admission to female candidates @) 12 odopTed by pespondents 2 u 3 is quashed. Respondents 2 & 3 are directed to' Qr&Dcirs Qfresh the !ist of ai! ths 42 QDen catsQorv candidates based on the merit secured by the candidates irrespective of category or cadre *hey belong and after preparation of tha* merit list, if the quota of 30% female candidates is satisfied, then the respondents are not required to undertake further exercise. Howeyer, if 30% quota of female candidates is "ot satisfied the", in order to maks-up 30% quota of female condidates, the respondents should pick-up the remaining femate candidates who have lr secured their position, 'm order of merit, after number 42 to adjust/accommodote oga.inst their reservation by deleting the corresponding number of candidates from the bottom of 42 open category carid'idctes. Sd/- , L.C.BHADOO Judge TS-J^SJ^