Case: SAURAV YADAV &amp; ORS Vs. STATE OF UTTAR PRADESH &amp; ORS

in the very same paragraph 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 (2010) 12 SCC 204 was also completely misunderstood. In that case one Neetu Joshi had secured a seat in General Category on her own merit and she also answered the category of horizontal reservation earmarked for Uttaranchal Mahila. The attempt on part of Mamta Bisht, the original writ petitioner, was to submit that said Neetu Joshi having been appointed on her own merit in General Category, the seat meant for Uttaranchal Mahila category had to be filled up by other candidates. In essence, what was projected was the same stand taken by the respondents in Rajesh Kumar Daria (2007) 8 SCC 785 , which was expressly rejected in that case. It is for this reason that para 15 of the decision in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 expressly returned a finding that the judgment rendered by the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria (2007) 8 SCC 785 and the appeal was allowed. This decision is thus not of any help or assistance in support of the second view. 31. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment 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 will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected. 32. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court. 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. 34. It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before the Single Judge of the High Court (quoted in paragraph 9 hereinabove) were absolutely correct. The Single Judge and the Division Bench of the High Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court (quoted hereinabove in paragraph 11) had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of Bombay in Charushila vs. State of Maharashtra 2019 SCC OnLine Bom 1519 was correct. 35. We must also clarify at this stage that it is not disputed that the Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in Open/General Category and that they have not taken or availed of any special benefit which may disentitle them from being considered against Open/General Category seat. The entire discussion and analysis in the present case is, therefore, from said perspective. 36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai (R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020) contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs. 37. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in Open/General Category, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. Thus, the facts which stand accepted or admitted on record are as under:-a) In pursuance of the directions issued by this Court in its Order dated 24.07.2019, selection to the 3295 (Though the Order dated 24.07.2019 mentioned the figure to be 3294 (2312+982), according to the State, the actual figure is 3295.) posts in accordance with merit and consistent with reservation policy of the Government was undertaken by the State Government.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 Female Candidates was not considered or taken into account.d) The last candidate appointed in the category of General Female had secured 274.8298 marks.e) Applicant no.1 Ms. Sonam Tomar had secured 276.5949 marks i.e. greater than the candidate with 274.8298 marks but her claim was not considered.f) 21 such applicants who come from the category of OBC Female are before this Court who had secured more than 274.8928 marks.In the backdrop of these admitted facts, the action on part of the State Government in refusing to consider the claim of OBC Female Category candidates in respect of General Female Category seats is in question in the present matter. It must be mentioned that no SC Female Category candidates who were not selected, had secured more marks than 274.8928. Therefore, the claim of Applicant no.2 and other similarly situated SC Female Category candidates does not stand on the same footing.The narration of events was only to note the effect of the order dated 16.03.2016 and the affirmation thereof in appeal, as a result of which revised final list was published on 29.11.2016. As the observations indicate, this Court had not gone into the details in respect of challenge entertained by the High Court as no occasion had arisen for such consideration. We, therefore, reject the submission that the Order dated 16.03.2016 stood approved by this Court.19. Paragraph 9 of Rajesh Kumar Daria etc. vs. Rajasthan Public Service Commission and others (2007) 8 SCC 785 referred to the well-established principle that a candidate belonging to any of the vertical reservation categories, on the basis of his own merit, is entitled to be selected in the Open or General Category and in such eventuality his selection is not to be counted against the quota reserved for such vertical reservation category. We may for the sake of clarity reproduce the following extract from the decision in Ritesh R. Sah vs. Dr. Y.L. Yamul and Others (1996) 3 SCC 253   which noted the larger Bench decisions in Indra Sawhney vs. Union of India (1992) Supp (3) SCC 217 and R. K. Sabharwal vs. State of Punjab (1995) 2 SCC 745   and stated:-13. There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4).14. In a case Indra Sawhney v. Union of India (1992) Supp (3) SCC 217 commonly known as Mandal case, this Court held thus: (SCC p. 735, para 811)In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.15. In R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745   the Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-à-vis reservation and held thus: (SCC p. 750, para 4)When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.16. In Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 (SCC at p. 705) it has been held that while determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.20. None of the decisions referred to hereinabove however had an occasion to consider whether the principle as stated in decisions referred to in the preceding paragraph also apply to cases of horizontal reservation.21. The view taken by the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is thus contrary to the one that weighed with the High Court of Allahabad. Apart from the Orders referred to in paragraphs 9 to 11 hereinabove, the Full Bench of the High Court of Allahabad in Ajay Kumar vs. State of U.P. and others (2019) 5 ALJ 466  held:-For the aforesaid, to our mind, inter-se merit of women has no role to play in the implementation of horizontal reservation as the socially reserved candidate (SC, ST, & OBC) seeking benefit of reservation of special category (women) cannot claim adjustment in open category.The High Court of Madhya Pradesh has also adopted a view similar to that taken by the High Court of Allahabad. In State of Madhya Pradesh and another vs. Uday Sisode and others (2019) SCC OnLine MP 5750, the High Court referred to the decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204   and observed:-18. In the above judgment the High Court had held that since the last selected candidate receiving the benefit of horizontal reservation had secured more marks than the last selected general category candidate, therefore, she ought to have been appointed against the vacancy in general category. The Honble Supreme Court has found this view of the High Court contrary to the law laid down in the case of Rajesh Kumar Daria. (2007) 8 SCC 785   Same is the position in the present case wherein OBC police personnel receiving the benefit of horizontal compartmentalised reservation is claiming the appointment on the ground that he has secured more marks than the last selected general category candidate, but this can not be accepted in view of above judgment.19. The issue relating to the appointment of physically handicapped persons [horizontal (social) reservation] against the seat of Open General Category on the basis of higher marks had earlier come up before the Division Bench of this Court at Gwalior in WA No. 414/2017 and the Division Bench had held it to be impermissible by holding that the concept of migration from one category to another on the basis of merit may hold good in vertical reservation, but in horizontal reservation the same is not applicable. In this regard the Division Bench has held as under:—9. The question is whether a candidate who opts to take up a competitive examination not as a General Category/Unreserved category but as a reserved category candidate belonging to SC/ST/OBC, as the case may be, thus competing amongst the candidates of his category, if obtains marks higher than obtained by the candidates of a General Category can be permitted to incurs in the General Category. In other words, whether a candidate having opted to participate in a competitive examination as a reserved category candidate can be permitted to migrate to General Category?10. In Indra Swahney v. Union of India, 1992 Supp (3) SCC 217 (Paragraph 812), it has been observed —11. Thus, when a reservation is horizontal, then the candidate selected on the basis of reservation in any category has to be fixed in said category and cannot be allowed to migrate to other category. The concept of migrating from one category to another on the basis of merit may hold good in vertical reservation but in horizontal reservation the same is not applicable.12. In Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785  : AIR 2007 SC 3127 , it has been held—13. The impugned judgment when tested on the anvil of the above analysis cannot be faulted with as would warrant any interference. However, we are of the considered opinion, in the given facts of the case that there being no malafides on the part of the Commission in causing migration, no case is made out by the petitioners (respondents no. 1, 2 and 3) for imposing cost of Rs. 25,000/- payable in favour of each of the petitioners therein. We therefore set aside the cost imposed.20. In the present case the aforesaid judgment of the Division Bench was not brought to the notice when Writ Appeal was decided by judgment under review, and a different view has been taken which renders the judgment under review per incurium.21. In the present case learned Single Judge has placed reliance upon the judgment in the case of Jitendra Kumar Singh v. State of U.P. (2010) 3 SCC 119   and in the matter of Deepa E.V. v. Union of India (2017) 12 SCC 680   but these judgments relate to migration of SC, ST, OBC candidates to open category in case of vertical reservation. These are not the cases where horizontal reservation candidate has been permitted to take appointment against open category seat on the basis of their marks.22. The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in Open or General Category is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. Apart from the extracts from the decisions of this Court in Indra Sawhney (1992) Supp (3) SCC 217 and R. K. Sabharwal (1995) 2 SCC 745   the observations by the Constitution Bench of this Court in Shri V.V. Giri vs. Dippala Suri Dora and Others (1960) 1 SCR 426 , though in the context of election law, are quite noteworthy.21. … In our opinion, the true position is that a member of a Scheduled Caste or Tribe does not forego his right to seek election to the general seat merely because he avails himself of the additional concession of the reserved seat by making the prescribed declaration for that purpose. The claim of eligibility for the reserved seat does not exclude the claim for the general seat; it is an additional claim; and both the claims have to be decided on the basis that there is one election from the double-member constituency.22. In this connection we may refer by way of analogy to the provisions made in some educational institutions and universities whereby in addition to the prizes and scholarships awarded on general competition amongst all the candidates, some prizes and scholarships are reserved for candidates belonging to backward communities. In such cases, though the backward candidates may try for the reserved prizes and scholarships, they are not precluded from claiming the general prizes and scholarships by competition with the rest of the candidates.23. The High Courts of Rajasthan, Bombay, Uttarakhand, and Gujarat have adopted the same principle while dealing with horizontal reservation whereas the High Court of Allahabad and Madhya Pradesh have taken a contrary view. These two views, for facility, are referred to as the first view and the second view respectively. The second view that weighed with the High Courts of Allahabad and Madhya Pradesh is essentially based on the premise that after the first two steps as detailed in paragraph 18 of the decision in Anil Kumar Gupta and Others (1995) 5 SCC 173   and after vertical reservations are provided for, at the stage of accommodating candidates for effecting horizontal reservation, the candidates from reserved categories can be adjusted only against their own categories under the concerned vertical reservation and not against the Open or General Category.24. Thus, according to the second view, different principles must be adopted at two stages; in that:-.(I) At the initial stage when the Open or General Category seats are to be filled, the claim of all reserved category candidates based on merit must be considered and if any candidates from such reserved categories, on their own merit, are entitled to be selected against Open or General Category seats, such placement of the reserved category candidate is not to affect in any manner the quota reserved for such categories in vertical reservation.(II) However, when it comes to adjustment at the stage of horizontal reservation, even if, such reserved category candidates are entitled, on merit, to be considered and accommodated against Open or General Seats, at that stage the candidates from any reserved category can be adjusted only and only if there is scope for their adjustment in their own vertical column of reservation.Such exercise would be premised on following postulates: -(A) After the initial allocation of Open General Category seats is completed, the claim or right of reserved category candidates to be admitted in Open General Category seats on the basis of their own merit stands exhausted and they can only be considered against their respective column of vertical reservation.(B) If there be any resultant adjustment on account of horizontal reservation in Open General Category, only those candidates who are not in any of the categories for whom vertical reservations is provided, alone are to be considered.(C) In other words, at the stage of horizontal reservation, Open General Category is to be construed as category meant for candidates other than those coming from any of the categories for whom vertical reservation is provided.25. The second view may lead to a situation where, while making adjustment for horizontal reservation in Open or General Category seats, less meritorious candidates may be adjusted, as has happened in the present matter. Admittedly, the last selected candidates in Open General female category while making adjustment of horizontal reservation had secured lesser marks than the Applicants. The claim of the Applicants was disregarded on the ground that they could claim only and only if there was a vacancy or chance for them to be accommodated in their respective column of vertical reservation.26. Both the views can be compared and the issues involved in this matter can be considered in the light of a hypothetical illustration with following assumptions: -(i) The total seats available are 100; comprising of 50 seats for Open/General Category. The reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes is at 20%, 10% and 20% respectively and all candidates from these reserved categories are otherwise eligible to be considered against Open General Category.(ii) The percentage of seats available for Women by way of compartmentalized horizontal reservation is 30%.(iii) Out of all qualified candidates, when first 50 meritorious candidates are picked up to fill up the seats for Open/General Category:-(a) There are only 11 women in first 50 candidates in Open/General Category; and(b) the last five persons in the Open/General Category viz., the candidates at Serial Nos.46, 47, 48, 49 and 50 are–Sl. No. 46 - Open Category - MaleSl. No 47 - Open Category - MaleSl. No. 48 - Scheduled Caste - MaleSl. No. 49 - Scheduled Caste - MaleSl. No. 50 - Scheduled Caste - Female(c) first four female candidates in the waiting list, who do not belong to any of the reserved categories, are having overall merit position at Serial Nos. 52, 64, 87 and 88.(d) Going by the steps indicated in paragraph 18 of the decision in Anil Kumar Gupta and Others (1995) 5 SCC 173 , at the stage of filling up seats for Scheduled Castes Category, there are 7 females among 20 candidates with last 2 candidates being females whose overall ranking in the merit list is at Serial Nos. 80 and 86.(e) Similarly, the seats for Scheduled Tribes and Other Backward Categories are filled up.(f) Out of 20 candidates selected in Other Backward Category there are 09 females.27. Having allocated first 50 seats in Open General Category and filled up other vertical column of reservation, the next step is to effect horizontal reservation for women. If the reservation for women was 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 taken as compartmentalized, as we are concerned in the present matter and the 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 those at Serial Nos. 46, 47, 48 and 49 initially allocated to Open/General Category, will have to be displaced. The candidate at Serial No. 50, being a woman, cannot be displaced.(B) The male candidates at Serial Nos.46 and 47 being from Open/General Category, after such displacement will be completely out of reckoning as they cannot go to any reserved category.(C) The candidates at Serial Nos.48 and 49 being more meritorious than the candidates originally placed in the vertical column of reservation for Scheduled Castes, must go back to their own vertical column. This will cause resultant displacement of two candidates in that vertical column of reservation. The 20th candidate, whose overall merit position is at Serial No.86, though a female, but being in excess of quota for Scheduled Castes females and a male candidate immediately above the 19th candidate will thus get displaced.27.1 If we go by the second view, the female candidates at Serial Nos.52, 64, 87 and 88 must be accommodated against Open General Category seats whereas the candidate at Serial No.86, though more meritorious then those at Serial Nos.87 and 88, must be left without any seat.On the other hand, if we go by the first view, the claim of reserved category candidates if they are more meritorious, has to be considered, in which case the candidate at Serial No.86 will be required to be accommodated. Resultantly, the candidate at Serial No.88 must give way.There can be various such permutations and combinations and in a given case, the concerned female candidates from reserved category in the Waiting List for their respective vertical columns of reservation, may be more meritorious than the female candidates in the Waiting List for Open / General Category seats. The instant illustration is given to highlight the situation that can possibly emerge if the second view is adopted.28. The second view, based on adoption of a different principle at the stage of horizontal reservation as against one accepted to be a settled principle for vertical reservation, may thus lead to situations where a less meritorious candidate, not belonging to any of the reserved categories, may get selected in preference to a more meritorious candidate coming from a reserved category. This incongruity, according to the second view, must be accepted because of certain observations of this Court in Anil Kumar Gupta and Others (1995) 5 SCC 173   and Rajesh Kumar Daria (2007) 8 SCC 785.  The following sentences from these two decisions are relied upon in support of the second view:-But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. [from paragraph 18 of Anil Kumar Gupta (1995) 5 SCC 173 ]But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. [from paragraph 9 of Rajesh Kumar Daria (2007) 8 SCC 785 ]29. These sentences are taken to be a mandate that at the stage of horizontal reservation the candidates must be adjusted /accommodated against their respective categories by deleting corresponding number of candidates from such categories and that the principle applicable for vertical (social reservation) will not apply to horizontal (special reservation). In our view, these sentences cannot be taken as a declaration supporting the second view and are certainly being picked out of context.The observations in paragraph 18 in Anil Kumar Gupta and Others (1995) 5 SCC 173 contemplated a situation where if special reservation candidates entitled to horizontal reservation are to be adjusted in a vertical column meant for social reservation, the corresponding number of candidates from such social reservation category ought to be deleted. It did not postulate that at the stage of making special or horizontal reservation a candidate belonging to any of the social reservation categories cannot be considered in Open/General Category. It is true that if the consideration for accommodation at horizontal reservation stage is only with regard to the concerned vertical reservation or social reservation category, the candidates belonging to that category alone must be considered. For example, if horizontal reservation is to be applied with regard to any of the categories of Scheduled Castes, Scheduled Tribes or Other Backward Classes, only those candidates answering that description alone can be considered at the stage of horizontal reservation. But it is completely different thing to say that if at the stage of horizontal reservation, accommodation is to be considered against Open/General seats, the candidates coming from any of the reserved categories who are more meritorious must be side-lined. That was never the intent of the observations sought to be relied upon in support of the second view.Similarly, the observations in Rajesh Kumar Daria (2007) 8 SCC 785   were in the context of emphasizing a distinguishing feature between vertical and horizontal reservations; in that:-(a) At the stage of vertical reservation, the reserved category candidates selected in Open/General category are not to be counted while filling up seats earmarked for the corresponding reserved categories.(b) But the same principle of not counting the concerned selected candidates is not to apply for horizontal reservation.Adopting principle (a) at the stage of horizontal reservation, the respondents in Rajesh Kumar Daria (2007) 8 SCC 785   had separately allocated 11 seats for women in General Category as part of special or horizontal reservation, though another set of 11 women candidates had got selected, according to their own merit, in General Category quota. The quota of 11 seats for women having been already satisfied, this Court negated the theory that their number be disregarded while making horizontal reservation for women. It was in that context that the distinction between vertical and horizontal reservations was highlighted by this Court in paragraph 9 of the decision. The subsequent sentence thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women in the very same paragraph 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 (2010) 12 SCC 204   was also completely misunderstood. In that case one Neetu Joshi had secured a seat in General Category on her own merit and she also answered the category of horizontal reservation earmarked for Uttaranchal Mahila. The attempt on part of Mamta Bisht, the original writ petitioner, was to submit that said Neetu Joshi having been appointed on her own merit in General Category, the seat meant for Uttaranchal Mahila category had to be filled up by other candidates. In essence, what was projected was the same stand taken by the respondents in Rajesh Kumar Daria (2007) 8 SCC 785 , which was expressly rejected in that case. It is for this reason that para 15 of the decision in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 expressly returned a finding that the judgment rendered by the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria (2007) 8 SCC 785   and the appeal was allowed. This decision is thus not of any help or assistance in support of the second view.31. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment 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 will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.32. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court.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.34. It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before the Single Judge of the High Court (quoted in paragraph 9 hereinabove) were absolutely correct. The Single Judge and the Division Bench of the High Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court (quoted hereinabove in paragraph 11) had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of Bombay in Charushila vs. State of Maharashtra 2019 SCC OnLine Bom 1519 was correct.35. We must also clarify at this stage that it is not disputed that the Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in Open/General Category and that they have not taken or availed of any special benefit which may disentitle them from being considered against Open/General Category seat. The entire discussion and analysis in the present case is, therefore, from said perspective.36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai (R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020) contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs.37. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in Open/General Category, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us.41. None of these petitioners had secured marks more than 274.8298 and as such, their case cannot be considered at par with that of Applicant no.1 – Ms. Sonam Tomar and other similarly situated candidates as discussed hereinabove.42. If there are unfilled vacancies, it is upto the authorities to act purely in terms of the concerned statutory provisions. Neither any case for issuance of mandamus, as prayed for, has been made out nor do we think it appropriate to pass any orders directing the concerned authorities to absorb the petitioners against unfilled vacancies.