SAURAV YADAV & ORS. versus STATE OF UTTAR PRADESH & ORS.
[2020] 11 S.C.R. 281, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SAURAV YADAV & ORS.
v.
STATE OF UTTAR PRADESH & ORS.
(Miscellaneous Application No.2641 of 2019)
In
(Special Leave Petition (Civil) No. 23223 of 2018)
DECEMBER 18, 2020
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
HRISHIKESH ROY, JJ.]
Service Law – Selection – Reservation – Horizontal
reservation and vertical reservation – Two candidates, one belonging
to the OBC-Female category and another belonging to the SC-
Female category participated in the selection process in 2013 for
filling up posts of constables in Uttar Pradesh police – They had
secured 276.5949 and 233.1908 marks respectively – The cut-off
of female (general category) was 274.8928 – They both claimed
selection in General Female category – Their claim was rejected by
the State – The State relied on order dated 16.03.2016 passed by
the High Court of Allahabad which held that “if the special category
candidate belonging to OBC category scored higher marks than
his /her counterpart adjusted in open category, cannot be shifted
to open category” –  Similar view was adopted by the Madhya
Pradesh High Court (view of High Court of Allahabad and Madhya
Pradesh may be termed as ‘second view’) – However, the High
Courts of Rajasthan, Bombay, Uttarakhand and Gujarat (termed
as ‘first view’) have adopted the view that “Reservation prescribed
may be ‘vertical’ or ‘horizontal’ if it relates to open category, the
candidate belonging to backward class cannot be precluded from
competing for the said posts on their
own merit with rest of the
candidate” – Held: The ‘second view’ is neither based on any
authoritative pronouncement by Supreme 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
[2020] 11 S.C.R. 281
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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 Supreme Court – Any view or process of
interpretation which leads to incongruity must be rejected – The
‘second view’ will lead to irrational results – Therefore, the ‘second
view’ is dissapproved and rejected – The ‘first view’ which weighed
with the High Courts of Rajasthan, Bombay, Uttarakhand and
Gujarat is correct and rational – In the instant case, all candidates
coming from ‘OBC Female Category’ who had secured more marks
than 274.8929, i.e. the marks secured by the last candidate
appointed in ‘General Category Female’ must be offered employment
as constables in Uttar Pradesh Police – Since, it has been accepted
that none of the candidates coming from ‘SC Female Category’ had
secured more marks than 274.8298, the claims of the Applicant no.2
and all similarly situated candidates are rejected – Constitution of
India – Reservations.
Constitution of India – Reservations – Horizontal reservation
and vertical reservation – Held: Reservations, both vertical and
horizontal, are method of ensuring representation in public services
– These are not to be seen as rigid “slots”, where a candidate’s
merit, which otherwise entitles her to be shown in the open general
category, is foreclosed – Doing so, would result
in a communal
reservation, where each social category is confined within the extent
of their reservation, thus negating merit – The open category is
open to all, and the only condition for a candidate to be shown in it
is merit, regardless of whether reservation benefit of either type is
available to her or him.
Constitution of India – Reservations – Difference between
Horizontal reservation and vertical reservation – discussed.
Partly allowing the Miscellaneous Application No. 2641 and
I.A.No. 25611 of 2019 and dismissing the W.P.(C) No. 237 of
2020, the Court
HELD: Per UDAY UMESH LALIT, J. [for himself,
S. RAVINDRA BHAT and HRISHIKESH ROY, JJ.]
1. The second view (view of High Court of Allahabad and
Madhya Pradesh) is 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
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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, must
be rejected. [Para 31][333-D-G]
2. 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. [Para 32][333-G-H]
3. This Court, therefore, does 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. [Para 33][334-A]
4. 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 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 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. [Para 34][334-A-D]
SAURAV YADAV & ORS. v.
STATE OF UTTAR PRADESH & ORS.
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5. This Court 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. [Para 35][334-D-E]
6. Finally, this Court 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] contemplate the correct and
appropriate procedure for considering and giving effect to both
vertical and horizontal reservations. 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 this Court may observe
that one set out in said judgment will certainly satisfy all claims
and will not lead to any incongruity. [Para 36][334-E-H]
7. Having come to the conclusion that the Appellant No.1
and similarly situated candidates had secured more marks than
the last candidates selected in ‘Open/General Category’, the
logical consequence must be to annul said selection and direct
the authorities to do the
exercise de novo in the light of conclusions
arrived at by us. However, considering the facts that those
selected candidates have actually undergone training and are
presently in employment and that there are adequate number of
vacancies available, this Court mould the relief and direct as
under:- a) All candidates coming from ‘OBC Female Category’
who had secured more marks than 274.8929, i.e. the marks
secured by the last candidate appointed in ‘General Category–
Female’ must be offered employment as Constables in Uttar
Pradesh Police. b) Appropriate letters in that behalf shall be sent
to the concerned candidates within four weeks. c) If the
concerned candidates exercise their option and accept the offer
of employment, communications in that behalf shall be sent by
the concerned candidates within two weeks. d) On receipt of such
acceptance, the codal and other formalities shall be completed
within three weeks. e) Letters of appointment shall thereafter
be issued within a week and the concerned candidates shall be
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given appropriate postings. f) For all purposes, including seniority,
pay fixation and other issues, the employment of such candidates
shall be reckoned from the date the appointment orders are
issued. g) The employment of General Category Females with
cut off at 274.8929 as indicated by the State Government in its
affidavits referred to in paragraphs 5 and 8 hereinabove are not
to be affected in any manner merely because of this judgment.
Since it has been accepted that none of the candidates coming
from ‘SC Female Category’ had secured more marks than
274.8298, the claims of the Applicant no.2 and all similarly situated
candidates are rejected. [Para 37, 38][335-A-F]
Per S. RAVINDRA BHAT, J.
1. The features of vertical reservations are: (i) They cannot
be filled by the open category, or categories of candidates other
than those specified and have to be filled by 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 on meritorious
performance; (iii) In case of migration from reserved to open
category, the vacancy in the reserved category should be filled
by another person from the same specified category, lower in
rank, (iv) If the vacancies cannot be filled by the specified
categories 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 on
their 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 the
various steps laid out with clarity in paragraph 11 of Justice Lalit’s
judgement. They cannot be carried forward. The first rule that
applies to filling horizontal reservation quotas is one of adjustment,
i.e. examining whether on merit any of the horizontal categories
are adjusted in the merit list in the open category, and then, in
the quota for such horizontal category within the particular
specified/social reservation. [Para 10][342-A-C]
3. The open category is not a ‘quota’, but rather available
to all women and men alike. Similarly, as held in Rajesh Kumar
Daria v. Rajasthan Public Service Commission, 2007 (8) SCC 785,
SAURAV YADAV & ORS. v.
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there is no quota for men. If the second view is accepted [as held
by the Allahabad High Court in Ajay Kumar v. State of UP (2019)
5 ALJ 466 and the Madhya Pradesh High Court in State of
Madhya Pradesh & Anr. v. Uday Sisode & Ors. (2019) SCC Online
MP 5750, referred to in paragraph 20 of Justice Lalit’s
judgement], the result would be confining the number of women
candidates, irrespective of their performance, in their social
reservation categories and therefore, destructive of logic and
merit. The second view, therefore – perhaps unconsciously
supports- but definitely results in confining the number of women
in the select list to the overall numerical quota assured by the
rule. [Para 11][342-A-E]
4. In my opinion, the second view collapse completely, when
more than the stipulated percentage 20% (say, 40% or 50%) of
women candidates figure in the most meritorious category. The
said second view in Ajay Kumar and Uday Sisode thus penalizes
merit. The principle of mobility or migration, upheld by this court
in Union of India v. Ramesh Ram (2009) 6 SCC 619 and other
cases, would then have discriminatory application, as it would
apply for mobility of special category men, but would not apply to
the case of women in such special categories (as glaringly evident
from the facts of this case) to women who score equal to or more
than their counterparts in the open/ general category. [Para
12][342-A-F; 343-A]
5. Both vertical
and horizontal, are method of ensuring
representation in public services. These are not to be seen as
rigid “slots”, where a candidate’s merit, which otherwise entitles
her to be shown in the open general category, is foreclosed, as
the consequence would be, if the state’s argument is accepted.
Doing so, would result in a communal reservation, where each
social category is confined within the extent of their reservation,
thus negating merit. The open category is open to all, and the
only condition for a candidate to be shown in it is merit, regardless
of whether reservation benefit of either type is available to her
or him. [Para 15][344-A-G]
In 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.
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(2015) SCC OnLine Raj 1391; Asha Ramnath Gholap
v. The President, District Selection Committee/Collector
(2016) SCC OnLine Bom 1623-20; Kanchan
Vishwanath Jagtap v. Maharashtra Administrative
Tribunal, Nagpur and Others (2016) 1 Mah. L.J. 934;
Tejaswini 
Raghunath 
Galande 
v. 
Chariman,
Maharashtra Public Service Commission, Mumbai and
Others (2019) 4 Mah L.J. 52-207; Charushila v. State
of Maharashtra (2019) SCC OnLine Bom 1519;
Shantabai Laxman Doiphode v. State of Maharashtra
(2020) SCC OnLine Bom 1659; Uttarakhand
Subordinate Service Selection Commission and Another
v. Ranjita Rana and Another (2019) SCC OnLine Utt
481; Sudhir Kumar v. State of Uttarakhand and Others
Writ Petition (S/B) No.392 of 2017 dated 11.12.2018;
Tamannaben Ashokbhai Desai v. Shital Amrutlal Nishar
R/LPA No.1910 of 2019 in R/Special Civil Application
No.18968 of 2018 etc. decided on 05.08.2020 –
approved.
Ajay Kumar v. State of U.P. and Others (2019) 5 ALJ
466; State of Madhya Pradesh and Another v. Uday
Sisode and Others (2019) SCC OnLine MP 5750 –
disapproved.
State of UP & Ors. v. Ashish Kumar Pandey & Ors.
(2016) SCC OnLine All 2611; Pramod Kumar Singh
and Others v. State of U.P. and Others Writ A. No.18442
of 2018; Indra Sawhney and Others v. Union of India
and Others (1992) 3 Suppl. SCC 217; Swati Gupta (Ms.)
v. State of U.P. and Others (1995) 2 SCC 560; [1995] 1
SCR 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 Public
Service Commission and Others (2007) 8 SCC 785;
[2007] 8 SCR 972; K. Krishna Murthy (Dr.) and Others
v. Union of India and Another (2010) 7 SCC 202;
[2010] 6 SCR 972; Public Service Commission,
Uttaranchal Etc. v. Mamta Bisht and Others (2010) 12
SCC 204; [2010] 7 SCR 289; Alok Kumar Singh and
Others v. State of Uttar Pradesh and Others; (2019) 14
SCC 692; [2018] 14 SCR 328 – referred to.
SAURAV YADAV & ORS. v.
STATE OF UTTAR PRADESH & ORS.
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Case Law Reference
[2018] 14  SCR 328
referred to
Para 14
(1992) 3 Suppl. SCC 217
referred to
Para 18
[1995] 1 SCR 827
referred to
Para 18
[1995] 2 Suppl. SCR  396 
referred to
Para 18
[2007] 8 SCR 972
referred to
Para 18
[2010] 6 SCR 972
referred to
Para 18
[2010] 7 SCR 289
referred to
Para 18
[1960] 1 SCR 426
followed
Para 22
In the Judgment of Ravindra Bhat, J.
Indira Sawhney v Union of India, (1992) Suppl. (3) SCC
766; Rajesh Kumar Daria v. Rajasthan Public Service
Commission (2007) 8 SCC 785; [2007] 8 SCR 972 –
relied on.
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 Kumar
Singh v. State of UP (2010) 3 SCC 119; [2010] 1
SCR 325; Anupal Singh v. State of U.P (2020) 2 SCC
173; [2019] 12 SCR 1071 – referred to.
Megha Shetty v. State of Rajasthan 2013 (4) RLW;
Neelam Sharma v. State of Rajasthan (2015) SCC
(Online) Raj 139; Tamannaben Ashokbhai Desai v.
Shital Amrutlal Nishar R/LPA NO. 1910 in R/Special
Civil. App No. 18968/2018 decided on 5.8.2020 by
the High Court of Gujarat; Asha Ramnath Gholap v.
The President, District Selection Commission/Collector,
(2016) SCC Online Bom 1623; Kanchan Vishwanath
Jagtap & Anr. v. Maharastra Administrative Tribunal
& Ors. 2016 Mah. LJ 934; Tejaswini Raghunath
Golande v. Chairman, Maharastra Public Services
Commission 2019 Mah. LJ 527; Charushila v. State of
Maharashtra, (2019)
SCC Online Bom 1519;
Shantabai Laxman Doiphode v. State of Maharashtra
(2020) SCC Online Bom 1639; Uttarakhand
Subordinate Service Selection Commission v. Ranjita
Rana (2019) SCC Online Utt. 481 – approved.
Allahabad and Madhya Pradesh (in Ajay Kumar v. State
of UP & Ors. (2019) 5 ALJ 466; State of Madhya
Pradesh & Anr. v. Uday Sisode & Ors. (2019) SCC
OnLine MP 5750 – disapproved.
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Government of Andhra Pradesh v. P.B. Vijay Kumar
(1995) 4 SCC 520; [1995] 1 Suppl. SCR 462; Union
of India v. Ramesh Ram (2009) 6 SCC 619; [2009] 9
SCR 775 – referred to.
Hanumant Dutt Shukla v. State of UP (2018) 16 SCC
447; Alok Kr. Singh & Others v. State of U.P. & Others
CA No.11370/2018; Sunaina Tripathi v. State of UP &
Ors., (2012) 3 ADJ 463 –  referred to.
Case Law Reference
(2018) 16 SCC 447
referred to
Para 1
[1995] 1 Suppl. SCR 462
referred to
Para 2
(1992) 3 Suppl. SCC 766
relied on
Para 6
[1995] 2 Suppl. SCR 396
referred to
Para 7
[1995] 1 SCR 827 
referred to
Para 8
[2010] 1 SCR 325
referred to
Para 8
[2007] 8 SCR 972
relied on
Para 8
[2009] 9 SCR 775
referred to
Para 10
[2019] 12 SCR 1071
referred to
Para 12
CIVIL 
APPELLATE/ORIGINAL 
JURISDICTION:
Miscellaneous Application No. 2641 of 2019 in Special Leave Petition
(Civil) No. 23223 of 2018.
From the Judgment and Order dated 16.05.2018 of the High Court
of 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 Dutta
Makhija, 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. Nupur
Dubey, Purushottam Sharma Tripathi, Mukesh Kumar Singh, Ms. Vani
Vyas, Praveen Gaur, Anurag Dubey, Rajesh Pathak, Sumit Kumar, Ms.
Kumari Supriya, Ms. Usha Pandey, Binod Mishra,  Ravi
Chandra
Prakash, Amit, Abhishek Tripathi, Shrutanjaya Bhardwaj, Anil Bhat,
Danish Zubair Khan, Kumar Gaurav, Robin Khokhar, Ms. Anuradha
Mishra, Mayank Kshirsagar, Mukesh Kumar, Siddharth Sharma,
Parthasarathy Bose, Ms. Pankhuri, Ankur Yadav, Sumit Pragal, Ms. Amita
Singh Kalkal, Arjun Garg, Ms. Rati Tandon, Saurabh Kirpal, Anuroop
Chakravarti, Ms. Nida Khan, P. N. Puri, Surendra Singh Rana, Shantanu
Jugtawat, Ikshit Singhal, Mohit Kaushik, Ms. Bhanu Priya Sharma,
SAURAV YADAV & ORS. v.
STATE OF UTTAR PRADESH & ORS.
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Prashant Agarwal, Ashutosh Chaturvedi, M/s. Mukesh Kumar Singh
And Co., D.K. Garg, Seemant Singh, Dhananjay Garg, Sudhindra Tripathi,
Abhishek Garg, Shakil Ahmad Syed, Mohd. Parvez Dabas, Uzmi Jameel
Husain, Qazi Wakeel Ahmad, Daanish Ahmed Syed, R.K. Singh,
Ms. Neeraj Singh, Ms. Ritu Reniwal, Ms. Anzu K. Varkey, Divyakant
Lahoti, Parikshit Ahuja, Praveena Bisht, Ms. Vindhya Mehra,
Ms. Madhur Jhavar, Kartik Lahoti, Jai Gopal Saboo, Satish Pandey, Salim
Ansari, Umang Tripathi, Ms. Ninanda Nair, Adarsh Tripathi, Anish Gupta,
Nikhil Kandpal, Gaurav Srivastava, Sanjay K. Agrawal, Ms. Ankita
Khare, Sarthak Nema, Rohit Sohgaura, Suyash Mohan Guru, Vardhman
Kaushik, Ashwani Kumar Dubey, Anil A. Thomas, Manish Kumar, Aman
Jha, Ashutosh Mohan, R. C. Kohli, L.C. Patne, Raghav Pandey,
Ms. Rekha Pandey, Krishna M. Singh,  S. R. Setia, Mayank Pandey,
Gaurav, Nikhil Jain, Rajiv Ranjan Dwivedi, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
MISCELLANEOUS APPLICATION NO.2641 OF 2019
1. This Miscellaneous Application has been preferred by
Ms. Sonam Tomar and Ms. Reeta Rani who had participated in the
Selection Process initiated for filling up posts of Constables in U.P.
Police and secured 276.5949 and 233.1908 marks respectively. They
had applied in the categories of OBC-Female and SC-Female respectively.
2. It is submitted by them that their claim has been rejected by the
State
Government despite directions issued by this Court in its Order
dated 24.07.2019 in I.A. No.10394 of 2018 (Ashish Kumar Yadav and
Others vs. State of Uttar Pradesh and Others) and that candidates with
lower marks have been selected in General Female category disregarding
their claim.
3. The basic facts relevant for the purposes of this Miscellaneous
Application, as stated in said order dated 24.07.2019 are as under: -
“In the year 2013, selection process was undertaken to fill up
41,610 posts of Police Constables [U.P. Civil Police/Provincial
Armed Constabulary (PAC)/Fireman]). After the requisite
examination, results were declared on 16.07.2015, in which 38315
candidates were successful. Thus, as on that date there were
3295 vacancies which were not filled as no suitable candidates
were available.
It must be mentioned that the process for selecting Sub- Inspectors
in U.P. Police was going on simultaneously and in a challenge
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raised in respect of said process, the High Court of Judicature at
Allahabad vide its order dated 29.05.2015 in the case of Saket
Kumar and Ors. vs. State of U.P. and 2 Ors1 directed that the
candidates who had used blades and whiteners while answering
the answer papers of the main examination were disqualified and
their names be deleted from the selection list.
The matter was carried in appeal before this Court and by its
decision dated 19.01.2016 (Hanuman Dutt Shukla & Ors. vs.
State of UP and Others2), it was ruled that those who had used
blades 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 Saket
Kumar1. This Court, therefore, observed that those candidates
who were selected as a result of directions in Saket Kumar1 should
not be thrown out from the process of selection but the candidates
who had used the blades and whiteners should be given the
advantage or benefit in a notional selection. In other words, the
selection list was ordered to be re-worked and in case the
candidates who had used blades and whiteners were now found
to be part of the selection list, they be given appropriate advantage
including selection to the posts in question. It was also directed
that though logically equal number of candidates must be displaced
from the original list of selection, since those persons had already
undergone training
and some of them had joined the posts, those
candidates ought not to be thrown out of service. This Court also
directed that in the process, the additional number of candidates
who were selected over and above the normal selection should be
reckoned as against additional posts and should not be taken to be
part of the original posts for selection.
The principle so devised in HD Shukla2 was then adopted in the
process of selection for Police Constables which was going on
simultaneously and consequently the selection list was reworked.
Thus all the candidates who had used blades and whiteners were
considered in the process of selection and some of them did get
selected. In the re-working of the selection list 4429 candidates
were given advantage or benefit in terms of the law declared in
Hanuman Dutt Shukla2 which is to say those 4429 candidates
would be taken as additional appointments over and above the
number of posts for which selection was undertaken.
1 Writ A. No.67782 of 2014, (2015 SCC OnLine All 1250)
2 (2018) 16 SCC 447
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
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In its judgment dated 16.03.2016 [Ashish Kr. Pandey & 24
others vs. State of U.P. and 29 Others3], the High Court of
Judicature at Allahabad observed that horizontal reservation was
not properly worked and as such the State was directed to
undertake the process of re-calculating horizontal reservation
vacancies afresh. This case was also in relation to the process of
selection for Sub-Inspectors. Around same time, another decision
was rendered by the High Court in Manoj Kr. & Others4 adopting
the principle in Ashish Kr. Pandey3 in selection process for
Constables.
On 4.5.2018, a decision was rendered by the High Court of
Judicature at Allahabad in Upendra and others vs. State of U.P.
and Others5 wherein challenge was raised to certain provisions
of the Reservation Act. It was submitted that going by the concept
of horizontal reservation, it would not be possible to carry forward
the vacancies to the next selection, in case the appropriate number
of candidates for horizontal reservation were not available. The
High Court accepted the plea and directed that there shall not be
any carry-forward of vacancies of horizontal reservation to the
next selection.
Thus the matter was clear that in case appropriate number of
candidates for filling up seats meant for horizontal reservation were
not available, there would not be any carry forward of such
vacancies. The order shows that about 2312 vacancies were not
filled up by the
State adopting the idea of carry forward principle
in horizontal reservation. Therefore, as a result of the directions
issued by the High Court in Upendra’s case, 2312 vacancies must
enure to the advantage of the candidates concerning the present
selection process itself.
It is accepted by the learned counsel for the State that the State
did not undertake any process of selection in respect of those
2312 vacancies.
…        …        …
…        …        …
It is also accepted that apart from these 2312 vacancies, there
are still 982 vacancies to be filled up in the original selection.”
In the circumstances this Court directed the State to complete the
process 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 2759
5 Writ C. No.3417 of 2016; 2018 (7) ADJ 37
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with law. It was also directed that the principle of reservation would be
followed while filling up these vacancies and that the State would adhere
to the required minimum qualifying marks as devised during the process
of selection and consider all eligible candidates in accordance with merit.
It was also declared: -
“It is clarified that no candidate shall be excluded from the selection
process merely because he had used blade or whitener. In case
his merit position otherwise demands and entitles him to be selected,
no prejudice shall be caused to him merely for the use of blade
and whitener.”
4. Soon thereafter, apprehension was expressed whether the
direction as aforesaid would apply to male candidates only. Therefore,
the order dated 17.09.2019 recorded as under: -
“Mr. Vinod Diwakar, learned AAG for the State makes a statement
that keeping in view the direction issued by this Court on
24.07.2019, no candidate shall be excluded from the selection
process merely because he/she had used blade/whitener and in
case merit position of the candidate demands and entitles him/her
to be selected, no prejudice shall be caused to him/her merely for
using blade/whitener. Statement is taken on record.”
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 187
female (General) have been selected. This process completes
horizontal
reservation.
4- Cut off marks for different categories are as under-

OC 
OBC 
SC 
ST 
Male 
313.616 
307.233 
283.4033
247.233 
Cut

3 
off

Female (General Category) cut off – 274.8928. All the OBC, SC
and ST candidates securing more than 313.616 marks have also
been selected in open / unreserved category.”
6. Aggrieved by the action on part of the State in not considering
the claim of OBC female and SC female candidates against the posts
meant for General Category female candidates, this Miscellaneous
Application is preferred submitting inter alia:-
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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“13. That a perusal of paragraph 4 of the Compliance Affidavit
dated 13.11.2019 filed by the Respondent State reveals that while
all Male Candidates belonging to OBC, SC, ST category securing
more than the cut off marks (313.616) for the Male Candidates in
the General/Open/Unreserved Category have also been selected,
the same standard has not been applied to the OBC/SC/ST Women
Category Candidates like the Petitioners/Applicants although they
have obtained more than the cut of marks (274.8928) for the Female
Candidates in the General/Open/Unreserved Category.
14. That it is respectfully submitted that 21 of the Petitioners/
Applicants belonging to the Female OBC Category have secured
marks more than the cut off marks for the Female (General
Category) candidates declared to be selected as per the State’s
Compliance Affidavit dated 13.11.2019.”
The Applicants, therefore, pray: -
“(a) Allow the instant application and direct the Respondent State
to select the Applicants/Petitioners herein [Female OBC/SC
candidates] who participated in the 2013 Constables Recruitment
Process 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 similarly
situated candidates claiming similar relief. The Order dated 04.03.2020
passed by this Court stated: -
“In M.A. No.2641 of 2019 the case in respect of two
applicants is
projected while in I.A. No.25611/2019 the matter is being agitated
with 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 accepts
that out of 32 female candidates, 11 candidates belong to the
category of SC girls while other 21 belong to the category of
OBC girls and that there is no case in so far as candidates
belonging to SC-girls category are concerned.
In so far as OBC girls are concerned, Ms. Vibha Dutta Makhija,
learned Senior Advocate submits that all these girls had secured
marks greater than cut off namely 274.89 which was declared for
females (General) category. Our attention is invited to page 110
of the Compliance Affidavit which shows that some female
candidates who had scored marks in the range of 274-275, have
been selected.
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It is the submission that the applicant girls of the category of OBC
girls had scored marks greater than those General category girls
who were selected.
One of the submissions sought to be advanced by the learned
counsel for the State was that the category of OBC Females was
already exhausted in the first round and the selection which was
undertaken pursuant to the directions issued by this Court in
Hanuman Dutt Shukla’s2 case and in cases decided subsequently
on same lines, was only confined to the candidates who had been
disqualified for having used blades/erasers or whiteners. Since
the selection was confined to such candidates, and as the category
of OBC female was already exhausted, no candidates could be
appointed from and out of OBC female candidates. However, the
fact remains that females coming from General Category who
had secured marks in the range of 274-275, going by Page 110,
have definitely been appointed, whereas applicant OBC-girls had
secured marks greater than them.
It thus, prima facie does not stand to reason how candidates in the
General Category could be appointed who had secured less
number of marks than the applicant girls.”
8. Thereafter, the Order dated 22.07.2020 passed by this Court
was to the following effect:-
“Mr. Vinod Diwakar, learned AAG for the State submitted that in
the category of Male Constables, OBC, SC and ST candidates
securing more than the cut-off, namely, 313.616 for Open Category
Candidates, were also
selected in the open/unreserved category.
However, same yardstick was not applied with respect to the
Female Candidates and justification for such exercise was on the
basis of the directions issued by the High Court in its order dated
16.03.2016 in Writ Petition No.37599 of 2015 and order dated
20.02.2019 in Writ Petition No.18442 of 2018.”
9. The stand taken by the State Government in its affidavits was
as under:-
I] Affidavit dated 29.11.2019
“A. In the year 2013 selection process was undertaken to fill up
41610 posts of police constable (UP civil police/PAC/Fireman).
Details are as follows:-
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]

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Table-1
S.No 
. 
Categor 
y 
Civil 
Police 
PAC 
Firema 
n 
Total 
1 
Open 
17750 
2016 
1038 
20804 
2 
OBC 
9585 
1089 
561 
11235 
3 
SC 
7455 
847 
436 
8738 
4 
ST 
710 
81 
42 
833
Total 
35500 
4033 
2077 
41610 
B. Horizontal reservation position is as follows-
Table-2
Vertical 
Reservatio n 
Total 
Vacancies 
Horizontal Reservation Vacancies 
Ex- 
Servicema 
n 05% 
DFF 
02% 
Home- 
Guard 
(only 
for 
civil 
police 
& PAC 
05%) 
Fem al e 
(only 
for civil 
police) 
20% 
Open 
20804 
1040 
416 
988 
3550 
OBC 
11235 
562 
225 
534 
1917 
SC 
8738 
437 
175 
415 
1491 
ST 
833 
42 
17 
40 
142 
Total 
41610 
2081 
833 
1977 
7100 
Results were declared on 16-07-2015 after completing requisite
examination and other procedures. 38315 candidates were declared
successful and 3295 posts remained vacant due to unavailability
of suitable candidates in respective categories.
… … …
C. In compliance of the Hon’ble Supreme Court order dated 24-
07-2019, selections have been made against 3295 posts
according to merit, keeping in view the reservation policy of
the government. The result has been declared on 11.11.2019.
It is pertinent to mention here that 7100 posts were reserved
for female candidates as against 35500 posts of civil police
(Table-2) in which 3550 posts were earmarked for General
female candidates. At this stage OBC and SC female
candidates were already taken in surplus to their required
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number in respective categories Female candidates were only
3062 as against 3550 (Ref. Table-2). Hence, therefore, 188
General Female candidates in Open Category have been
selected to fill up their reservation quota against 3550 Open
Category Female candidates.”
II. Affidavit dated 21.07.2020
“13. That it is again reiterated that in Civil Police, out of total
vacancies 3550 were reserved for General Category Women’s,
1970 were reserved for OBC, 1491 were reserved for SC and
142 were reserved for ST Women’s Candidates. It is again
reiterated that the OBC and SC women candidate had already
been selected against the vacancies hence therefore in subsequent
selection their merit has not been considered.”
10. Since reliance has been placed by the State on the Order
dated 16.03.20163 passed by the Single Judge of High Court of Judicature
at Allahabad in Writ Application No.37599 of 2015, some of the relevant
observations in said Order are quoted here:-
“It was, therefore, mandated that upon adjustment/accommodation
if the special category candidate belonging to OBC category scored
higher marks than his/her counterpart adjusted in open category,
cannot be shifted to open category. Shifting would tantamount to
vertical reservation which is impermissible and alien to the concept
of horizontal reservation. Horizontal reservation cut across vertical
reservation, therefore, there is no concept of ‘merit’while making
adjustment/accommodation.
… … …
Learned counsel for
the respondents6 would urge that (i) the
women selected on merit should be excluded while determining
the number of women candidates to be adjusted in respective
category, (ii) open category being ‘open’ based on merit, therefore,
the candidates under special reservation quota should be
accommodated/adjusted on the basis of their inter se merit in open
category, irrespective of their social category, (iii) women are a
class, therefore, there can be no discrimination on the basis of
their social category, (iv) the principles as sought to be urged, if
not followed, would tantamount to reservation in favour of “upper
caste” which is not the aim or object of the Constitution.
The argument, in my opinion, is not only misconceived, but malicious
and motivated as is being sought to be urged by the petitioners.
6 State of U.P. and its functionaries
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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The principles for horizontal reservation that is being sought to be
urged, if accepted, would necessarily be in teeth of the provisions
of Act, 1993, Government Orders referred to earlier, and the
authoritative pronouncement of the Apex Court. I have no hesitation
in observing that both the State and the Board, for the reason best
known to them, and the Advocate General, assisted by a battery
of lawyers, with impunity have taken a stand against their own
Government Orders and the provisions of Act, 1993. When
confronted with a query that the Advocate General was arguing
not only against the Government Orders but also against the
principles which was continuously being followed by the Board, in
previous selections regarding horizontal reservation; Sri Singh would
contend that the principle adopted by the Board being ‘equitable’,
therefore, the State supports the methodology adopted by the
Board. The argument, however, was not supported by any authority,
rather the authorities referred, herein above, was relied upon by
both the contesting parties in support of their arguments.
… … ….
The questions framed, consequently, are answered as follows:
(i) The candidates claiming horizontal reservation (women, ex-
servicemen and dependent of freedom fighter) cannot be adjusted
enmasse in the open category but would have to be adjusted against
their respective social category i.e. OBC, SC and ST …….”
(Emphasis supplied)
11. The
aforesaid decision of the Single Judge was affirmed in
appeal by the Division Bench7 of the High Court with following
observations: -
“31. While applying the principle of Horizontal Reservation,
category has a role to play as at the point of time when Horizontal
Reservation is to be pressed, then based on merit candidates in
question are to be adjusted in their respective category and the
male candidates, who are at the bottom of the list as per the merit,
will have to make place for women candidate. A candidate, who
has proceeded to make an application for the purposes of Horizontal
Reservation under the OBC/SC/ST category, cannot be permitted
to change his/her category, whereas in Vertical Reservation once
you are selected, on merit, such a change is permissible by
operation of law and in view of this, once such is the factual
situation that is so emerging that all the candidates once they have
7 State of UP & Ors. vs. Ashish Kumar Pandey & Ors. : 2016 SCC OnLine All 2611
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specified their category in reference of Special Reservation, then
they have to be adjusted in their respective categories and the
reserve category candidate cannot ask for placement against open
category by claiming that they have higher merit, inasmuch as,
only in the matter of Vertical Reservation, merit has a role to play
wherein the list is finalized but at the pointof time when for providing
Horizontal Reservation adjustment is to be made, then various
adjustments is required to be done as per the formula that has
been approved and ratified by the Apex Court that in the matter
of horizontal reservation, adjustment would be made by making
appropriate placement in appropriate categories. Apex Court was
conscious of this fact, that such a provision may be subjected to
misuse and accordingly, position was sought to be clarified by
giving examples and then providing that if horizontal reservation is
not satisfied, the requisite number of special reservation candidate
has to be taken and accommodated/adjusted against their
respective social reservation categories. Sub-section (3) of Section
3 of U.P. Act No.4 of 1993 provides for horizontal reservation to
be applied accordingly, Application of horizontal reservation in this
prescribed manner maintains the merit of special reservation quota
candidate alongwith their representation in service, in view of this,
the Learned Single Judge is absolutely right at the point of time
when he has proceeded to
criticise the State Government for taking
such a stand and for adhering to a procedure that was not at all
prescribed in law and thus crossing the limit of reservation of 50%,
in view of this, the order passed by Learned Single Judge does
not deserve interference on this aspect of the matter.”
(Emphasis supplied)
12. The observations in the Order dated 20.02.2019 passed by the
Division Bench of the High Court of Judicature at Allahabad in Pramod
Kumar Singh and Others vs. State of U.P. and Others8 are also relied
upon by the State Government. In that case the horizontal reservation
for dependants of Freedom Fighters, Ex. Servicemen and women in the
very same selection for Police Constables was in issue. The Division
Bench of the High Court dealt with the Note submitted on behalf of the
State which indicated the steps undertaken to determine and fill up seats
for various categories as under:-
“The procedure as set forth for completion of the recruitment
exercise is then described in the following terms:
8 Writ A. No.18442 of 2018
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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“Step 3.1 From List -1 select 19158 candidates in open
category in order of their merit (Total Marks). This list may
contain 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 from
the candidates left after Step 3.1 from the List-1. This will
include only OBC candidates with domicile of U.P. Let us call
this list as List-1-B.
Step 3.3 Now select 8046 candidates of SC Category from
the candidates left after Step 3.1 from the List-1. This will
include only SC candidates with domicile of U.P. let us call this
list as List 1-C.
Step 3.4 Now select 766 candidates of ST Category from the
candidates left after Step 3.1 from the List-1. This will include
only ST candidates with domicile of U.P. let us call this list as
List 1-D.
Step 3.5 If number of candidates in List-1-C is less than the
required number 8046 for SC Candidates from shortage will be
filled from ST candidates remaining after step 3.4 if available.
If required quota of SC remains unfilled, then number of
shortage posts should be shown separately. Similarly if number
of for ST candidates then shortage will be filled from SC
candidates remaining after Step 3.3, if available. If required of
ST still remains unfilled then number of shortage posts should
be shown separately.
Step 3.6 In this way four lists of candidates will be prepared
as follows:
List-1-A
(OC) 
List-1-B
(OBC) 
List-1-C
(SC) 
List-1-D
(ST) 
19158 
(will 
include 
GEN, 
OBC, 
ST of 
any 
state) 
10345 
(Only 
OBC, 
domicile 
of U.P.) 
8046 
(Only SC, 
domicile 
of U.P.) 
766 (Only 
ST, 
domicil
e of 
U.P.) 
Step 4 prepare a separate list of remaining candidates from
List-1 who are not included in List-1-A, 1-B, 1-C and 1-D. Let
us call this list as List-1.
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Step 4.1 Now count the number of DFF candidates belonging
to General Category (having domicile of U.P.) from the List-1-
A. The candidates should not be OBC/SC/ST category. If
number of candidates is 383 or more, then nothing needs to be
done, otherwise select the shortfall of candidates of general
category belonging to DFF on merit from the List-2 (Only
candidates not belonging to OBC, SC & ST category)
and adjust/insert them in after removing equal number of
candidates from the bottom of List-1-A except General
Category DFF, Ex-Servicemen, female and home guard
candidates ( any candidate who is eligible for horizontal
reservation)”.
The High Court then directed as under:-
“These writ petitions are therefore disposed of with a direction
to the State respondents to proceed forward with expedition
and conclude the selection process strictly in accordance with
the procedure detailed in the Note filed along with the personal
affidavit of the Secretary. This Court while passing this order
has not considered the individual grievances or objections of
the petitioners and has only considered the principal submissions
noticed above. In view thereof, all individual claims as raised
by the petitioners may be raised after declaration of final results
and all contentions on merits in that respect are kept open.”
13. Appearing for the Applicants, Ms. Vibha Datta Makhija and
Mr. Gopal Sankaranarayanan, learned Senior Advocates, have submitted
that the stand taken by
the State is completely opposed to the principles
laid down by this Court and that the conclusions drawn in the Orders of
the 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 16.03.2016
was recognised by this Court in its decision in Alok Kumar Singh and
others vs. State of Uttar Pradesh and others9 and the State being
bound by the observations of the High Court as quoted above, did not
consider the claim of ‘OBC Female Category’ candidates against the
posts meant for ‘General Female Category’.
15. At this stage, the stand taken by the State Government in its
written submissions must also be adverted to:-
“10. That in compliance of the order dated 16.03.2016 passed by
the Hon’ble High Court in Writ Petition No. 37599 of 2015 titled
as Ashish Kumar Pandey & Another3 and order dated 20.02.2019
passed in Writ Petition No. 18442 of 2018 titled as Pramod Kumar
9 (2019) 14 SCC 692
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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Singh & Ors8, a separate select list of 2052 General Female
Candidates were declared on 10.06.2019 for fulfilling the 20%
Horizontal Reservation embarked for women’s and entire select
list was redrawn. The OBC and SC Women Candidates were not
considered in the select list as their horizontal quota were already
exhausted in the previous list.”
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 329510 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.
17. At the outset, it needs to be considered whether the decision
in Alok Kumar Singh9 had recognized the Order dated 16.03.2016 as
contended. The observations in the decision of this Court were:-
“9. It may be mentioned here that in terms of the decision3 of a
Single Judge of the High Court of Allahabad rendered on 16-3-
2016 which was confirmed by the Division Bench by its judgment
and order dated 29-7-20167, in connection with horizontal
reservation 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),
according to the State, the actual figure is 3295.
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final result was published on 29-11-2016. Since no grievance is
made on this count, we have refrained from going into the details
in respect of such challenge and the consequences as a result of
such directions.”
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.
18. As a first step while considering the validity and correctness
of the actions on part of the State Government, we may note some of
the decisions of this Court touching upon the issue of horizontal reservation:
A) Jeevan Reddy, J. speaking for himself and on behalf of three
Judges of this Court in Indra Sawhney and Others vs. Union of India
and others11 observed as under:-
“812. We are also of the opinion that this rule of 50% applies only
to reservations in favour of backward classes made under Article
16(4). A little clarification is in order at this juncture: all
reservations are not of the same nature. There are two types of
reservations, which may, for the sake of convenience, be referred
to as ‘vertical reservations’ and ‘horizontal reservations’. The
reservations in favour of
Scheduled Castes, Scheduled Tribes and
other backward classes [under Article 16(4)] may be called vertical
reservations whereas reservations in favour of physically
handicapped [under clause (1) of Article 16] can be referred to as
horizontal reservations. Horizontal reservations cut across the
vertical reservations — what is called interlocking reservations.
To be more precise, suppose 3% of the vacancies are reserved in
favour of physically handicapped persons; this would be a
reservation relatable to clause (1) of Article 16. The persons
selected against this quota will be placed in the appropriate
category; if he belongs to SC category he will be placed in that
quota by making necessary adjustments; similarly, if he belongs to
open competition (OC) category, he will be placed in that category
by making necessary adjustments. Even after providing for these
horizontal reservations, the percentage of reservations in favour
of backward class of citizens remains — and should remain —
the same. This is how these reservations are worked out in several
States and there is no reason not to continue that procedure.”
11 (1992) Supp (3) SCC 217
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
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B) In Swati Gupta (Ms.) vs. State of U.P. and others12, the
effect of para 2 of G.O. dated 17.05.1994 was considered by a bench of
two Judges of this Court and it was stated:-
“3. Similarly, the other defect in the circular reserving 35% seats
for general category has been removed. The vertical reservation
is now 50% for general category and 50% for Scheduled Castes,
Scheduled Tribes and Backward Classes. Reservation of 15% for
various categories mentioned in the earlier circular which reduced
the general category to 35% due to vertical reservation has now
been made horizontal in the amended circular extending it to all
seats. The reservation is no more in general category. The amended
circular divides all the seats in CPMT into two categories— one,
general and other reserved. Both have been allocated 50%. Para
2 of the circular explains that candidates who are selected on
merit and happen to be of the category mentioned in para 1 would
be liable to be adjusted in general or reserved category depending
on to which category they belong, such reservation is not contrary
to what was said by this Court in Indra Sawhney11. Whether the
reservation for such persons should have been made or not was
not challenged, therefore, this Court is not required to examine
it.”
C) In Anil Kumar Gupta and others vs. State of U.P. and
others13, a bench of two Judges of this Court explained the concept of
overall reservation as against
compartmentalized reservation and detailed
the steps to be undertaken while filling up seats for vertical and horizontal
reservation as under:-
“15. On a careful consideration of the revised notification of
17-12-1994 and the aforementioned corrigendum issued by the
Lucknow University, we are of the opinion that in view of the
ambiguous language employed therein, it is not possible to give a
definite answer to the question whether the horizontal reservations
are overall reservations or compartmentalised reservations.
We may explain these two expressions. Where the seats reserved
for horizontal reservations are proportionately divided among the
vertical (social) reservations and are not intertransferable, it would
be a case of compartmentalised reservations. We may illustrate
what we say: Take this very case; out of the total 746 seats, 112
seats (representing fifteen per cent) should be filled by special
reservation candidates; at the same time, the social reservation in
favour of Other Backward Classes is 27% which means 201 seats
for OBCs; if the 112 special reservation seats are also divided
12 (1995) 2 SCC 560
13 (1995) 5 SCC 173
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proportionately as between OC, OBC, SC and ST, 30 seats would
be allocated to the OBC category; in other words, thirty special
category students can be accommodated in the OBC category;
but say only ten special reservation candidates belonging to OBC
are available, then these ten candidates will, of course, be allocated
among OBC quota but the remaining twenty seats cannot be
transferred to OC category (they will be available for OBC
candidates only) or for that matter, to any other category; this
would be so whether requisite number of special reservation
candidates (56 out of 373) are available in OC category or not;
the special reservation would be a watertight compartment in each
of the vertical reservation classes (OC, OBC, SC and ST). As
against this, what happens in the overall reservation is that while
allocating the special reservation students to their respective social
reservation category, the overall reservation in favour of special
reservation categories has yet to be honoured. This means that in
the above illustration, the twenty remaining seats would be
transferred to OC category which means that the number of
special reservation candidates in OC category would be 56+20=76.
Further, if no special reservation candidate belonging to SC and
ST is available then the proportionate number of seats meant for
special reservation candidates in SC and ST also get transferred
to OC category. The result would be that 102 special reservation
candidates
have to be accommodated in the OC category to
complete their quota of 112. The converse may also happen, which
will prejudice the candidates in the reserved categories. It is, of
course, obvious that the inter se quota between OC, OBC, SC
and ST will not be altered.
16. Now coming to the revised notification of 17-12-1994, it says
that “horizontal reservation be granted in all medical colleges
on total seats of all the courses…”. These words are being
interpreted in two different ways by the parties; one says it is
overall reservation while the other says it is compartmentalised.
Para 2 says that the candidates selected under the aforesaid special
categories “would be kept under the categories of Scheduled
Castes/Scheduled Tribes/Other Backward Classes/General to
which they belong. For example, if a candidate dependent on a
freedom fighter selected on the basis of reservation belongs to a
Scheduled Caste, he will be adjusted against the seat reserved for
Scheduled Castes”. This is sought to be read by the petitioners
as affirming that it is a case of compartmentalised reservation.
May be or may not be. It appears that while issuing the said
notification, the Government was not conscious of the distinction
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between overall horizontal reservation and compartmentalised
horizontal reservation. At any rate, it may not have had in its
contemplation the situation like the one which has arisen now.
This is probably the reason that this aspect has not been stated in
clear terms.
17. It would have been better — and the respondents may note
this for their future guidance — that while providing horizontal
reservations, they should specify whether the horizontal reservation
is a compartmental one or an overall one. As a matter of fact, it
may not be totally correct to presume that the Uttar Pradesh
Government was not aware of this distinction between “overall
horizontal reservation” and “compartmentalised horizontal
reservation”, since it appears from the judgment in Swati Gupta12
that in the first notification issued by the Government of Uttar
Pradesh on 17-5-1994, the thirty per cent reservation for ladies
was split up into each of the other reservations. For example, it
was stated against backward classes that the percentage of
reservation in their favour was twenty-seven per cent but at the
same time it was stated that thirty per cent of those seats were
reserved for ladies. Against every vertical reservation, a similar
provision was made, which meant that the said horizontal
reservation in favour of ladies was to be a “compartmentalised
horizontal reservation”. We are of the opinion that in the interest
of avoiding any
complications and intractable problems, it would
be better that in future the horizontal reservations are
compartmentalised in the sense explained above. In other words,
the notification inviting applications should itself state not only the
percentage of horizontal reservation(s) but should also specify
the number of seats reserved for them in each of the social
reservation categories, viz., ST, SC, OBC and OC. If this is not
done there is always a possibility of one or the other vertical
reservation category suffering prejudice as has happened in this
case. As pointed out hereinabove, 110 seats out of 112 seats meant
for special reservations have been taken away from the OC
category alone — and none from the OBC or for that matter,
from SC or ST. It can well happen the other way also in a given
year.
18. Now, coming to the correctness of the procedure prescribed
by the revised notification for filling up the seats, it was wrong to
direct the fifteen per cent special reservation seats to be filled up
first and then take up the OC (merit) quota (followed by filling of
OBC, SC and ST quotas). The proper and correct course is to
first fill up the OC quota (50%) on the basis of merit; then fill up
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each of the social reservation quotas, i.e., SC, ST and BC; the
third step would be to find out how many candidates belonging to
special reservations have been selected on the above basis. If the
quota fixed for horizontal reservations is already satisfied — in
case it is an overall horizontal reservation — no further question
arises. But if it is not so satisfied, the requisite number of special
reservation candidates shall have to be taken and adjusted/
accommodated against their respective social reservation
categories by deleting the corresponding number of candidates
therefrom. (If, however, it is a case of compartmentalised horizontal
reservation, then the process of verification and adjustment/
accommodation as stated above should be applied separately to
each of the vertical reservations. In such a case, the reservation
of fifteen per cent in favour of special categories, overall, may
be satisfied or may not be satisfied.) Because the revised
notification provided for a different method of filling the seats, it
has contributed partly to the unfortunate situation where the entire
special reservation quota has been allocated and adjusted almost
exclusively against the OC quota.”
(emphasis supplied)
D) In Rajesh Kumar Daria etc. vs. Rajasthan Public Service
Commission and others14, a bench of three judges of this Court
considered the difference between vertical and horizontal reservations
as under:-
“8. We may also refer to two related aspects before
considering
the facts of this case. The first is about the description of horizontal
reservation. For example, if there are 200 vacancies and 15% is
the vertical reservation for SC and 30% is the horizontal reservation
for women, the proper description of the number of posts reserved
for SC, should be: “For SC: 30 posts, of which 9 posts are for
women.” We find that many a time this is wrongly described thus:
“For SC: 21 posts for men and 9 posts for women, in all 30 posts.”
Obviously, there is, and there can be, no reservation category of
“male” or “men”.
9. The second relates to the difference between the nature of
vertical reservation and horizontal reservation. Social reservations
in favour of SC, ST and OBC under Article 16(4) are “vertical
reservations”. Special reservations in favour of physically
handicapped, women, etc., under Articles 16(1) or 15(3) are
“horizontal reservations”. Where a vertical reservation is made in
favour of a Backward Class under Article 16(4), the candidates
14 (2007) 8 SCC 785
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belonging to such Backward Class, may compete for non- reserved
posts and if they are appointed to the non- reserved posts on their
own merit, their number will not be counted against the quota
reserved for respective Backward Class. Therefore, if the number
of SC candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage of
posts reserved for SC candidates, it cannot be said that the
reservation quota for SCs has been filled. The entire reservation
quota will be intact and available in addition to those selected under
open competition category. (Vide Indra Sawhney11, R.K.
Sabharwal v. State of Punjab15, Union of India v. Virpal Singh
Chauhan16 and Ritesh R. Sah v. Dr. Y.L. Yamul17.) But the
aforesaid principle applicable to vertical (social) reservations will
not apply to horizontal (special) reservations. Where a special
reservation for women is provided within the social reservation
for Scheduled Castes, the proper procedure is first to fill up the
quota for Scheduled Castes in order of merit and then find out the
number of candidates among them who belong to the special
reservation group of “Scheduled Caste women”. If the number of
women in such list is equal to or more than the number of special
reservation quota, then there is no need for further selection
towards the special reservation quota. Only if there is any shortfall,
the requisite number of
Scheduled Caste women shall have to be
taken by deleting the corresponding number of candidates from
the bottom of the list relating to Scheduled Castes. To this extent,
horizontal (special) reservation differs from vertical (social)
reservation. Thus women selected on merit within the vertical
reservation quota will be counted against the horizontal reservation
for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women
is four), 19 SC candidates shall have to be first listed in
accordance with merit, from out of the successful eligible
candidates. If such list of 19 candidates contains four SC
woman candidates, then there is no need to disturb the list by
including any further SC woman candidate. On the other hand,
if the list of 19 SC candidates contains only two woman
candidates, then the next two SC woman candidates in
accordance with merit, will have to be included in the list and
corresponding number of candidates from the bottom of such
list shall have to be deleted, so as to ensure that the final 19
15 (1995) 2 SCC 745
16 (1995) 6 SCC 684
17 (1996) 3 SCC 253
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selected SC candidates contain four woman SC candidates.
(But if the list of 19 SC candidates contains more than four
woman candidates, selected on own merit, all of them will
continue in the list and there is no question of deleting the excess
woman candidates on the ground that “SC women” have been
selected in excess of the prescribed internal quota of four.)
10. In this case, the number of candidates to be selected under
general category (open competition), were 59, out of which 11
were earmarked for women. When the first 59 from among the
261 successful candidates were taken and listed as per merit, it
contained 11 woman candidates, which was equal to the quota for
“general category women”. There was thus no need for any further
selection of woman candidates under the special reservation for
women. But what RPSC did was to take only the first 48 candidates
in the order of merit (which contained 11 women) and thereafter,
fill the next 11 posts under the general category with woman
candidates. As a result, we find that among 59 general category
candidates in all 22 women have been selected consisting of eleven
woman candidates selected on their own merit (candidates at Sl.
Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the selection list) and
another eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75,
77, 78, 79 and 80 of the selection list) included under reservation
quota for “general category women”. This is clearly impermissible.
The
process of selections made by RPSC amounts to treating the
20% reservation for women as a vertical reservation, instead of
being a horizontal reservation within the vertical reservation.
11. Similarly, we find that in regard to 24 posts for OBC, 19
candidates were selected by RPSC in accordance with merit from
among OBC candidates which included three woman candidates.
Thereafter, another five women were selected under the category
of “OBC women”, instead of adding only two which was the
shortfall. Thus there were in all 8 women candidates among the
24 OBC candidates found in the selection list. The proper course
was to list 24 OBC candidates as per the merit and then find out
number of woman candidates among them, and only fill the shortfall
to make up the quota of five for women.”
(emphasis supplied)
E) In K. Krishna Murthy (Dr.) and others vs. Union of India
and another18, a Constitution Bench of this Court observed that seats
earmarked for women belonging to the General Category are not
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
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accounted for, if one has to gauge whether the upper ceiling of 50% has
been breached. The observations were as under:-
“44. With respect to the State legislations under challenge, it was
argued that the 50% ceiling would not be crossed under most of
them since it is only the vertical reservations (i.e. on communal
lines in favour of SCs/STs/OBCs) that are taken into consideration
for this purpose. Even though there is a 33% reservation in favour
of women in elected local bodies, the same is in the nature of a
horizontal reservation which intersects with the vertical reservations
in favour of SCs/STs/OBCs. In such a scenario, the seats occupied
by women belonging to the general category cannot be computed
for the purpose of ascertaining whether the 50% upper ceiling
has been breached.
… … …
64. In the absence of explicit constitutional guidance as to the
quantum of reservation in favour of backward classes in local
self-government, the rule of thumb is that of proportionate
reservation. However, we must lay stress on the fact that the
upper ceiling of 50% (quantitative limitation) with respect to
vertical reservations in favour of SCs/STs/OBCs should not be
breached. On the question of breaching this upper ceiling, the
arguments made by the petitioners were a little misconceived since
they had accounted for vertical reservations in favour of SCs/
STs/OBCs as well as horizontal reservations in favour of women
to
assert that the 50% ceiling had been breached in some of the
States. This was clearly a misunderstanding of the position since
the horizontal reservations in favour of women are meant to
intersect with the vertical reservations in favour of SCs/STs/OBCs,
since one-third of the seats reserved for the latter categories are
to be reserved for women belonging to the same. This means that
seats earmarked for women belonging to the general category
are not accounted for if one has to gauge whether the upper ceiling
of 50% has been breached.”
F) In Public Service Commission, Uttaranchal etc. vs. Mamta
Bisht and others19, the view taken by the High Court that one Neetu
Joshi, on her own merit, was entitled to be considered in General category
and as such she could not be counted against seats reserved for
“Uttaranchal Mahila” category; was under challenge. A bench of two
Judges of this Court set aside the view taken by the High Court with
following observations:-
19 (2010) 12 SCC 204
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“3. Out of 42 posts, 26 were filled up by general category and 16
by reserved category candidates. Some women candidates stood
selected in the general category while others had been given the
benefit of horizontal reservation being residents of Uttaranchal.
Respondent 1, being aggrieved preferred Writ Petition No. 780
of 2003 (M/B) in the High Court of Uttaranchal seeking quashment
of select list dated 31-7-2003 mainly on the ground that women
candidates belonging to Uttaranchal had secured marks making
them eligible to be selected in the general category and had it
been done so, Respondent 1 could have been selected in the
reserved category being a woman of Uttaranchal. It had also been
pleaded in the petition that some of the women candidates who
not only claimed the benefit of horizontal reservation but have
been selected giving the said benefit, did not submit their respective
certificate of domicile at the time of filling up the application forms
but they produced the said certificate at a later stage and it was
accepted.
4. The High Court accepted the first submission of Respondent 1
after examining the record of selection and came to the conclusion
that the last selected woman candidate who was given the benefit
of horizontal reservation for Uttaranchal women had secured marks
higher than the last selected candidate in the general category.
Thus, the said candidate ought to have been appointed against the
general category vacancy and Respondent 1
ought to have been
offered the appointment giving her the benefit of horizontal
reservation for Uttaranchal women. Hence, these appeals.
…   …    …
13. In fact, the High Court allowed the writ petition only on the
ground that the horizontal reservation is also to be applied as vertical
reservation in favour of reserved category candidates (social) as
it held as under:
“In view of the above, Neetu Joshi (Sl. No. 9, Roll No. 12320)
has wrongly been counted by Respondent 3/Commission against
five seats reserved for Uttaranchal Women General Category
as she has competed on her own merit as general candidate
and as the fifth candidate the petitioner should have been
counted for Uttaranchal Women General Category seats.”
Admittedly, the said Neetu Joshi has not been impleaded as a
respondent. It has been stated at the Bar that an application for
impleadment had been filed but there is nothing on record to show
that the said application had ever been allowed. Attempt had been
made to implead some successful candidates before this Court
but those applications stood rejected by this Court.
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14. The view taken by the High Court on application of horizontal
reservation is contrary to the law laid down by this Court in Rajesh
Kumar Daria v. Rajasthan Public Service Commission14,
wherein dealing with a similar issue this Court held as under: (SCC
pp. 790-91, para 9)
“9. The second relates to the difference between the nature of
vertical reservation and horizontal reservation. Social
reservations in favour of SCs, STs and OBCs under Article
16(4) are ‘vertical reservations’. Special reservations in favour
of physically handicapped, women, etc. under Articles 16(1)
or 15(3) are ‘horizontal reservations’. Where a vertical
reservation is made in favour of a Backward Class under Article
16(4), the candidates belonging to such Backward Class, may
compete for non-reserved posts and if they are appointed to
the non- reserved posts on their own merit, their number will
not be counted against the quota reserved for respective
Backward Class. Therefore, if the number of SC candidates,
who by their own merit, get selected to open competition
vacancies, equals or even exceeds the percentage of posts
reserved for SC candidates, it cannot be said that the
reservation quota for SCs has been filled. The entire reservation
quota will be intact and available in addition to those selected
under open competition category. (Vide Indra Sawhney11, R.K.
Sabharwal v. State of Punjab15, Union of India v. Virpal
Singh Chauhan16 and
Ritesh R. Sah v. Dr. Y.L. Yamul17.) But
the aforesaid principle applicable to vertical (social)
reservations will not apply to horizontal (special)
reservations. Where a special reservation for women is
provided within the social reservation for Scheduled Castes,
the proper procedure is first to fill up the quota for Scheduled
Castes in order of merit and then find out the number of
candidates among them who belong to the special reservation
group of ‘Scheduled Caste women’. If the number of women
in such list is equal to or more than the number of special
reservation quota, then there is no need for further selection
towards the special reservation quota. Only if there is any
shortfall, the requisite number of Scheduled Caste women shall
have to be taken by deleting the corresponding number of
candidates from the bottom of the list relating to Scheduled
Castes. To this extent, horizontal (special) reservation
differs from vertical (social) reservation. Thus women
selected on merit within the vertical reservation quota will be
counted against the horizontal reservation for women.”
(emphasis added)
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15. In view of the above, it is evident that the judgment and
order of the High Court is not in consonance with the law laid
down by this Court in Rajesh Kumar Daria14. The judgment and
order impugned herein is liable to be set aside and all the
consequential orders become unenforceable and inconsequential.
Thus, the appeals succeed and are allowed. The judgment and
order of the High Court dated 26-10-2005 passed in Writ Petition
No. 780 of 2003 (M/B) is hereby set aside. No costs.”
19. Paragraph 9 of Rajesh Kumar Daria etc. vs. Rajasthan
Public Service Commission and others14 referred to the well-established
principle that a candidate belonging to any of the vertical reservation
categories, on the basis of his own merit, is entitled to be selected in the
Open or General Category and in such eventuality his selection is not
to be counted against the quota reserved for such vertical reservation
category. We may for the sake of clarity reproduce the following extract
from the decision in Ritesh R. Sah vs. Dr. Y.L. Yamul and Others17
which noted the larger Bench decisions in Indra Sawhney vs. Union of
India11 and R. K. Sabharwal vs. State of Punjab15 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 India11 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 Punjab15 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
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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 Chauhan16 (SCC at p.
705) it has been held that while determining the number of posts
reserved for Scheduled Castes and Scheduled Tribes, the
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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. We may, at this stage, consider some of the decisions by
High Courts, which dealt with this question:-
A) In Megha Shetty vs. State of Rajasthan20, following
observations were made by the High Court of Rajasthan:-
“21. …Once the horizontal reservation in favour of woman in
general/open category is to be applied, the candidates belonging
to all categories, including SC, ST and OBC, are also entitled to
be considered against the said posts reserved for General Category
(Woman).
23. In the present case, it is evident from a bare look at the part of
Advertisement (Annexure-3) that 13 posts were reserved for OBC
category. From the result-sheet (Annexure-4) it is seen that out
of 42 unserved seats, 4 women candidates found place and,
therefore, they were counted against the horizontal reservation
provided for woman and thereafter, 9 more women candidates in
order of their merit were selected which included candidates
belonging to General as well as OBC Category. It is also noticed
that in the main list, 3 women candidates belonging to OBC
(Woman) found place on their
own merits and after taking 9
candidates against General (Woman) Category which included
OBC (Woman) also, further reservation has not been provided
qua 2 posts despite the fact that 5 posts were reserved for OBC
(Woman), which clearly shows that the horizontal reservation was
correctly applied.
24. The plea sought to be raised by the appellant regarding
impermissibility for migration from OBC (Woman) to General
(Woman) in   case   of   special   reservation under Article 15(3) of
the Constitution of India also apparently has no applicability in the
present case, inasmuch as, once the candidate belonging to OBC
(Woman) category has obtained more marks than a candidate
belonging to the General (Woman) category and, therefore, finds
place in the select list meant for General (Woman), the same
cannot even be termed as migration and, therefore, the plea raised
in this regard is without any substance …”
20 2013 (4) RLW 3227 (Raj.)
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
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A-1) The aforesaid decision was followed in Neelam Sharma
vs. 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 issue
raised in the present bunch of appeals. The Division Bench relying
upon the above-referred decisions of the Supreme Court has held
that in the event of woman candidate belonging to OBC category
on securing more marks than the woman candidate of general
category finds a position in the select list of candidates of general
category, the same cannot be treated as migration. And this decision
of the Division Bench is binding on us with which we also fully
agree. It is also to be noted that none of the writ petitioners/
respondents herein who are women of general category has
secured more marks than the women candidate of OBC category
selected in open category. The select list of women candidates
prepared by the Rajasthan Public Service Commission is strictly
in accordance with the law explained by the Supreme Court….”
Special Leave Petition No. 4312 of 2016 arising therefrom was
dismissed by this Court on 13.05.2016 with following observations:-
“Application seeking exemption from filing official translation is
allowed. We find no infirmity in the order impugned herein. The
Special Leave Petition is dismissed.”
B) In Asha
Ramnath Gholap vs. The President, District
Selection Committee/Collector22, the High Court of Bombay considered
the issue as under:-
“30. We find the argument advanced as above to be fallacious.
Once it is held that general category or open category takes in its
sweep all candidates belonging to all categories irrespective of
their caste, class or community or tribe, it is irrelevant whether
the reservation provided is vertical or horizontal. There cannot be
two interpretations of the words ‘open category’; one applicable
for vertical reservation and other for horizontal reservation.
Reservation prescribed may be ‘vertical’ or ‘horizontal’ if it relates
to open category, the candidate belonging to backward class cannot
be precluded from competing for the said posts on their own merit
with rest of the candidates.
…
…
…
21 2015 SCC OnLine Raj 1391
22 2016 SCC OnLine Bom 1623
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32. … It is thus evident that when three posts were notified to be
filled in by the female candidates belonging to open category, it
was open for the petitioner to compete for the said post irrespective
of the fact that she belongs to the reserved category and when
she had secured meritorious position amongst the female candidates
and had secured 2nd highest marks, her selection could not have
been denied by the respondents on the ground that she belongs to
scheduled caste and does not fall in the open category…. “
B-1) In Kanchan Vishwanath Jagtap vs. Maharashtra
Administrative Tribunal, Nagpur and others23, the High Court held:-
“We are of the view that if the view of the learned Tribunal is
accepted, then it would result in a situation to exist, which is not
permissible in view of the law laid down by the Constitution Bench
of the Apex Court in the case of Indra Sawhney11. Merely
because all the meritorious candidates in the women category
belonged to the reserved categories like OBC, SC and ST, in our
view cannot be a ground to deny them the benefit of their
meritorious position. We find that if the view as accepted by the
learned Tribunal is accepted, it will defeat constitutional mandate
as explained in the judgment in the case of Indra Sawhney11 by
the Constitution Bench of the Apex Court. A situation would exist
that a male candidate belonging to a reserved category would be
entitled to be selected against an open category post if he is entitled
on his own merit. However, a female candidate belonging to a
reserved category, even though she is much more meritorious than
a candidate belonging to open category women, would not be
entitled to be selected against the said post. The said situation in
effect would result in permitting a discriminatory treatment to the
women reserved candidates as against the male reserved
candidates. We find that such a situation is not permissible under
the Constitutional scheme as interpreted by the Constitution Bench
of the Apex Court in the case of Indra Sawhney11.”
B-2) In Tejaswini Raghunath Galande vs. Chariman,
Maharashtra Public Service Commission, Mumbai and others24,
the High Court set out the facts as under:-
“The learned Tribunal relying on the judgement of the
Hon’ble Apex Court in case of Rajesh Kumar Daria vs.
Rajasthan Public Service Commission and ors.14, held that the
23 (2016) 1 Mah. L.J. 934
24 (2019) 4 Mah L.J. 527
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action of the respondent No.1-MPSC in respect of the applicant,
who belong to N.T.(C.) category, in not permitting the applicant to
apply from the quota against ‘Open Women Category’ could not
be faulted with and as such the learned Tribunal had rejected the
Original Application. Being aggrieved by the said order, the present
petition is filed.”
Following the view taken in Asha Ramnath Gholap22 and
Kanchan Vishwanath Jagtap23, the High Court allowed the petition
and set aside the order of the Tribunal.
B-3) In Charushila vs. State of Maharashtra25, the submissions
of the Advocate General for the State were recorded as under :-
“13. The learned Advocate General also submits that there is no
separate category in law, recognized as “open category”. Firstly,
irrespective of their colour i.e. category, in case of education, all
the seats and in case of employment all the posts, as the case may
be, are to be taken together. From and out of the same, the reserved
posts/seats are to be taken out and what is left behind is commonly
known as ‘open category’ or ‘open competition category’ seats.
14. According to him, a reserved category candidate, irrespective
of whether he/she claims such reservation, as and by way of
vertical or horizontal, is always entitled to claim seat from open
category on the basis of his/her merit. This is particularly because,
the open category or quota as such, is meant for being allotted
only and
only on merit and, therefore, in such an allotment, the
caste, creed or sex or any other criteria, relating to any candidate,
does not at all matter.
15. The learned Advocate General further submits that in case a
candidate belonging to any reserved category is able to secure
allotment of seat, solely on the basis of his/her merit and merit
alone, such allotment cannot consume any seat, reserved for the
category to which such a candidate belongs. In such a case,
such an allotment, does not, in any manner, diminish the seats or
the posts as the case may be, reserved for the category to which
such candidate belongs.
18. He also submits that however, even in case of
‘compartmentalized’ horizontal reservations, seats that are allotted
to the open category or quota, can be claimed by everybody and
anybody who is entitled to basically claim a seat or post as the
case may be, from the open category, which will obviously and of
25 2019 SCC OnLine Bom 1519
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course, include each and every candidate, from the merit list of
the open category i.e. all the candidates even belonging to any
reserved category whichever, vertical or horizontal.”
Accepting the submissions of the State, the High Court concluded:-
“33. So far as the horizontal reservation is concerned, a different
procedure has been prescribed, which is recorded in the above
noted paragraph. In the event of short fall only, after perusal of
the merit list, such short fall in horizontal reservation category
shall be met by deleting requisite number of candidates from the
respective reserved categories and by substituting them from the
same category. Thus, the horizontal reservation category candidate
selected on the basis of merit within the vertical reservation quota,
will have to be counted against the horizontal reservation category.
…
…
…
41. Even in case of compartmentalized horizontal reservations,
the seats that are allotted to open category or quota, can be claimed
by anybody and everybody, who is entitled to claim a seat or post
on the basis of merit, which will include candidates even belonging
to open category i.e. all candidates even belonging to any reserved
category whichever, horizontal or vertical. However, the only
exception can be carved out, as has been stipulated in the judgment
of the Hon’ble Supreme Court that if the applicable rule or the
advertisement specifically provide to the contrary, such migration
shall not be permitted from
the reserved category to the open
category for claiming compartmentalized reservation provided for
open category. Those candidates belonging to reserved category,
who have already enjoyed the benefits during the process of
selection, such as concession in fees, relaxation of age, relaxation
in the merit criteria, would not be eligible to claim benefits of
migration from reserved category to open category for claiming a
seat or post.”
B-4) In Shantabai Laxman Doiphode vs. State of
Maharashtra26, the High Court held:-
“……However, in view of the law laid down by the Apex Court
in various judicial pronouncements and discussed in aforestated
cases, it is clear that inspite of the petitioner choosing to be selected
to a post reserved for N.T.(D.) category, the petitioner still could
legitimately stake her claim to post available under the open
category and not only that she could do so also to a post horizontally
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reserved for women in the open category. In the present case,
there is no dispute about the fact that from amongst the three
short listed women candidates, the petitioner had secured second
highest marks after the top scorer, Smt. Priya Naresh Gajbhiye.
While Smt. Priya Naresh Gajbhiye, a S.C. candidate, was selected,
on the basis of her merit, for one of the two posts reserved for
open (women) category, the petitioner though eligible in view of
the settled position of law, was not for the other post. The ground
given for selecting Smt. Priya Naresh Gajbhiye and rejecting the
petitioner was that though Smt. Priya Naresh Gajbhiye belonged
to S.C. category, she had opted for open category while the petitioner
had not. This ground is not tenable in law as we have seen from
the judgments discussed earlier.”
C) In Uttarakhand Subordinate Service Selection Commission
and Another vs. Ranjita Rana and Another27, the High Court of
Uttarakhand relied upon its earlier decision in Sudhir Kumar vs. State
of Uttarakhand and others28 and observed:-
“11. The effect of horizontal reservation, being provided under
each category, is that it is only women, who belong to the Other
Backward Classes, who can compete for posts reserved for Other
Backward Classes (Women) and not women who belong to the
Scheduled Castes, the Scheduled Tribes and the unreserved
category. Likewise, it is only women belonging to the Scheduled
Castes and the
Scheduled Tribes who can compete for posts
horizontally reserved in favour of Scheduled Castes (Women) and
Scheduled Tribes (Women). A woman, not belonging to the
reserved category (OBC, SC and ST), is not entitled to compete
for posts reserved in favour of Other Backward Classes (Women),
Scheduled Castes (Women) and Scheduled Tribes (Women).
12. The converse, however, is not true. All women, irrespective of
whether they belong, or do not belong, to the reserved category
are entitled to compete for posts earmarked in favour of women
under the General Category. There is no reservation for posts in
the General Category, and horizontal reservation in favour of
women in the General Category is available to be filled up from
amongst all women irrespective of their caste status. Posts,
reserved in favour of General Category (Women), are available
for all women from the State of Uttarakhand, and that would include
women belonging to the reserved categories such as OBCs, SCs
27 2019 SCC OnLine Utt 481
28 Writ Petition (S/B) No.392 of 2017 dated 11.12.2018
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and STs, and women who do not. Holding otherwise, would result
in surreptitious introduction of reservation in favour of those who
do not belong to the socially and educationally backward classes,
and a disguised attempt at communal reservation frowned upon
by the Supreme Court in The State of Madras Vs. Sm. Champakam
Dorairajan and another : AIR 1951 SC 226. This question is no
longer res integra and has, in fact, been answered by a Division
Bench of this Court in Sudhir Kumar Vs. State of Uttarakhand
and others (order in Writ Petition (S/B) No. 392 of 2017 dated
11.12.2018), which order was affirmed by the Supreme Court in
its order in Special Leave to Appeal (C) No. 7801 of 2019 dated
15.04.2019.”
D) In Tamannaben Ashokbhai Desai vs. Shital Amrutlal
Nishar29, the High Court of Gujarat considered the decisions on the
point including some of those rendered by the High Courts of Rajasthan,
Bombay and Uttarakhand as stated above and observed as under:-
“45. The above referred case law can be better explained by
way of the following illustration based on the factual position
obtaining in the present case.
46. There are 115 posts of Police Inspector (unarmed), out of
which 55 posts are reserved for the SC, ST and SEBC and
remaining 60 posts for open/general category. Out of the said
posts, 33% are reserved for women under each category, meaning
thereby, out of 60 posts in the open category, 20 posts are reserved
for women. Thus, the first step would be that
of preparing the
entire list on the basis of merit and out of the same, selecting first
60 candidates, irrespective of their caste and sex, in open category.
The second step would be then of evaluating as to whether 20
women, irrespective of their caste, are there within those 60
candidates, so as to meet with the requirement of horizontal
reservation. If 20 women are already there, then there is no need
to select any more woman in that category, but if not, then in the
third step, the remaining number of women have to be included
on the basis of the merit from the aforesaid list, irrespective of
their caste, while deleting the corresponding number of male
candidates from the bottom of the list of first 60 candidates.
Thereafter, identical exercise is required to be undertaken for
implementing vertical reservation, followed by horizontal
29 R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc.
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reservation, with respect to the posts belonging to the SEBC, SC
and ST categories.
…
…
…
49. It is pertinent to note that Rule 2(d) seeks to carve out a fourth
category of posts, not being posts reserved in favour of the
Scheduled Castes, Scheduled Tribes and Socially and Educationally
Backward Classes. In other words, this fourth category is nothing
but an Open category of posts, excluding the posts reserved in
favour of the above referred classes i.e. the posts reserved for
women in open category would be over and above the posts
reserved for women in SC, ST and SEBC quota, as referred to in
Rule 2(a), 2(b) and 2(c) of the said Rules. Thus, all the meritorious
candidates, whether belonging to the reserved category or
unreserved category, will be covered by the category, irrespective
of their caste, community or tribe where merit alone will be taken
into account, while implementing vertical reservation as well as
horizontal reservation within the same. It may be noted that by
virtue of the Gujarat Civil Services (Reservation of Posts for
Women) (Amendment) Rules, 2014, the requirement of reservation
in favour of women came to be enhanced from 30% to 33%.
50. In view of the aforesaid discussion, we have no hesitation in
arriving to the conclusion that the Government Resolution dated
01.08.2018 of the GAD deserves to be quashed and set aside, and
is hereby quashed and set aside.”
The High Court then laid down:-
“56.
For the future guidance of the State Government, we would
like to explain the proper and correct method of implementing
horizontal reservation for women in a more lucid manner.
“PROPER AND CORRECT METHOD OF IMPLEMETING
HORIZONTAL RESERVATION FOR WOMEN.
No. of posts available for recruitment.
..... 100
Social Reservation quota (49%)
Open Competition (OC)
..... 51
Scheduled Caste (SC )
..... 12
Scheduled Tribe (ST)
…..17
Socially and Educationally Backward Classes (SEBC)
.....20
Horizontal Reservation for Women (33% in each of the
above categories)
OC
17
SC
04
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ST
06
SEBC
07
Step 1:
Draw up a list of at least 100 candidates (usually a list
of more than 100 candidates is prepared so that there is
no shortfall of appointees when some candidates don’t
join after offer) qualified to be selected in the order of
merit. This list will contain the candidates belonging to
all the aforesaid categories.
Step 2:
From the aforesaid Step 1 List, draw up a list of the first
51 candidates to fill up the OC quota (51) on the basis of
merit. This list of 51 candidates may include the
candidates belonging to SC, ST and SEBC.
Step 3:   Do a check for horizontal reservation in OC quota. In
the Step 2 List of OC category, if there are 17 women
(category does not matter), women’s quota of 33% is
fulfilled. Nothing more is to be done. If there is a shortfall
of women (say, only 10 women are available in the Step
2 List of OC category), 7 more women have to be added.
The way to do this is to, first, delete the last 7 male
candidates of the Step 2 List. Thereafter, go down the
Step 1 List after item no. 51, and pick the first 7 women
(category does not matter). As soon as 7 such women
from Step 1 List are found, they are to be brought up
and added to the Step 2 List to make up for the shortfall
of 7 women. Now, the 33% quota for OC women is
fulfilled. List of OC category is to be locked. Step 2 List
list becomes final.
Step 4:   Move over to SCs. From the Step 1 List, after item no.
51, draw up a list of 12 SC candidates (male or
female).
These 12 would also include all male SC candidates who
got deleted from the Step 2 List to make up for the
shortfall of women.
Step 5:      Do a check for horizontal reservation in the Step 4 List
of SCs. If there are 4 SC women, the quota of 33% is
complete. Nothing more is to be done. If there is a
shortfall of SC women (say, only 2 women are available),
2 more women have to be added. The way to do this is
to, first, delete the last 2 male SC candidates of the Step
4 List and then to go down the Step 1 List after item
no. 51, and pick the first 2 SC women. As soon as 2
such SC women in Step 1 List are found, they are to be
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brought up and added to the Step 4 List of SCs to make
up for the shortfall of SC women. Now, the 33% quota
for SC women is fulfilled. List of SCs is to be locked.
Step 4 List becomes final. If 2 SC women cannot be
found till the last number in the Step 1 List, these 2
vacancies are to be filled up by SC men. If in case, SC
men are also wanting, the social reservation quota of SC
is to be carried forward to the next recruitment unless
there is a rule which permits conversion of SC quota to
OC.
Step 6:
Repeat steps 4 and 5 for preparing list of STs.
Step 7: Repeat steps 4 and 5 for preparing list of SEBCs.”
57. The State Government as well as the GPSC shall, for all times
to come, bear in mind that the effect of horizontal reservation,
being provided under each category, is that it is only women, who
belong to the Other Backward Classes, who can compete for the
posts reserved for Other Backward Classes (Women) and not
women who belong to the Scheduled Castes, the Scheduled Tribes
and the unreserved category. Likewise, it is only women belonging
to the Scheduled Castes and the Scheduled Tribes who can
compete for the posts horizontally reserved in favour of Scheduled
Castes (Women) and Scheduled Tribes (Women). A woman, not
belonging to the reserved category (OBC, SC and ST), is not entitled
to compete for posts reserved in favour of Other Backward
Classes (Women), Scheduled Castes (Women) and Scheduled
Tribes (Women).
58. The converse, however, is not true. All women, irrespective
of whether they belong, or do not belong, to the reserved category
are entitled to compete for posts earmarked in favour of women
under the General Category. There is no reservation for posts in
the General Category, and horizontal reservation in favour of
women in the General Category is available to be filled up from
amongst all women irrespective of their caste status. The posts,
reserved in favour of General Category (Women), are available
for all women from the State of Gujarat, and that would include
women belonging to the reserved categories such as OBCs, SCs
and STs, and women who do not. Holding otherwise, would result
in surreptitious introduction of reservation in favour of those who
do not belong to the socially and educationally backward classes,
and a disguised attempt at communal reservation has been frowned
upon by the Supreme Court in The State of Madras Vs. Sm.
Champakam Dorairajan and another : AIR 1951 SC 226.”
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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 others30 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 others31, the High Court
referred to the decision of this Court in Public Service Commission,
Uttaranchal vs. Mamta Bisht19 and observed:-
“18. In the above judgment the High Court had held that since
the last selected candidate receiving the benefit of horizontal
reservation had secured more marks than the last selected general
category candidate, therefore, she ought to have been appointed
against the vacancy in general category. The Hon’ble Supreme
Court has found this view of the High Court contrary to the law
laid down in the case of Rajesh Kumar Daria.14 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/
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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—
“812. xxxxxxxxxxxxxxxx
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—
“7-8. Xxxxxxxxxxxxxxxxxxxxxx
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.32 and in the matter of Deepa E.V. v. Union of India33 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
32 (2010) 3 SCC 119
33 (2017) 12 SCC 680
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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 Sawhney11
and R. K. Sabharwal15 the observations by the Constitution Bench of
this Court in Shri V.V. Giri vs. Dippala Suri Dora and Others34, 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
Others13 and after vertical reservations are provided for, at the stage of
accommodating candidates for effecting horizontal reservation, the
34 (1960) 1 SCR 426
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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
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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 - Male
Sl. No 47 - Open Category - Male
Sl. No. 48 - Scheduled Caste - Male
Sl. No. 49 - Scheduled Caste - Male
Sl. 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 Others13, 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.
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
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(f) Out of 20 candidates selected in Other Backward
Category there are 09 females.
The basic features of this illustration can be put in the following
tabular format.
TOTAL SEATS : 100 
CATEGORIES 
OPEN/ 
GENERAL
SCHEDULED 
CASTES 
SCHEDULED 
TRIBES 
OTHER 
BACKWARD 
CLASSES 
SEATS 
AVAILABLE 
5
0 
20 
10 
20 
MINIMUM 
SEATS FOR 
WOMEN 
1
5 
6 
3 
6 
SEATS
OCCUPIED BY 
WOMEN 
BEFORE 
APPLICATION 
OF 
HORIZANTAL 
RESERVATION 
1
1 
7
3
9
SHORTFALL, IF 
ANY 
4 
NI
L 
NI
L 
NIL 
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 causeresultant
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
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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 Others13 and Rajesh Kumar Daria14. 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 Gupta13]
“But the aforesaid principle applicable to vertical (social)
reservations will not apply to horizontal (special)
reservations.” [from paragraph 9 of Rajesh Kumar Daria14]
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
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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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
Others13 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 Daria14 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 Daria14 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
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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 Bisht19 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 Daria14, 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 Bisht19 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 Daria14 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.
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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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
Maharashtra25 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 Desai29
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.
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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. However, considering
the facts that those selected candidates have actually undergone training
and are presently in employment and that there are adequate number of
vacancies available, we mould the relief and direct as under:-
a) All candidates coming from ‘OBC Female Category’ who had
secured more marks than 274.8928, i.e. the marks secured by
the last candidate appointed in ‘General Category–Female’ must
be offered employment as Constables in Uttar Pradesh Police.
b) Appropriate letters in that behalf shall be sent to the concerned
candidates within four weeks.
c) If the concerned candidates exercise their option and accept
the offer of employment, communications in that behalf shall
be sent by the concerned candidates within two weeks.
d) On receipt of such acceptance, the codal and other formalities
shall be completed within three weeks.
e) Letters of appointment shall thereafter be issued within a week
and the concerned candidates shall be given appropriate
postings.
f) For all purposes, including seniority, pay fixation and other
issues, the employment of such candidates shall be reckoned
from the date the appointment
orders are issued.
g) The employment of General Category Females with cut off at
274.8928 as indicated by the State Government in its affidavits
referred to in paragraphs 5 and 8 hereinabove are not to be
affected in any manner merely because of this judgment.
38. Since it has been accepted that none of the candidates coming
from ‘SC Female Category’ had secured more marks than 274.8298,
the claims of the Applicant no.2 and all similarly situated candidates are
rejected.
39. Miscellaneous Application No. 2641 of 2019 and IA No.25611
of 2019 are allowed to the aforesaid extent.
Writ Petition (Civil) No. 237 of 2020
40. This Writ Petition under Article 32 has been filed by 14 female
candidates pertaining to the same selection praying for following principal
relief:-
“A. Issue an appropriate writ, order or direction in the nature of
mandamus directing the Respondents to absorb/select the
petitioners as against the 375 unfilled vacancies.”
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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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.
43. This Writ Petition is, therefore, without any merit and is
dismissed.
S. RAVINDRA BHAT, J.
1. I am in agreement with the judgment and conclusions of Justice
Lalit, and endorse them fully. I am also of the opinion that the views
expressed by the Rajasthan High Court (Megha Shetty v State of
Rajasthan1, Neelam Sharma v State of Rajasthan2); Gujarat High
Court (in Tamannaben Ashokbhai Desai v Shital Amrutlal Nishar3),
the Bombay High Court (in Asha Ramnath Gholap v The President,
District Selection Commission/Collector,4 Kanchan Vishwanath
Jagtap & Anr v Maharastra Administrative Tribunal & Ors,5
Tejaswini Raghunath Golande v Chairman, Maharastra Public
Services Commission Mumbai & Ors6, Charushila v State of
Maharashtra,7 Shantabai Laxman Doiphode v State of
Maharashtra8) and Uttarakhand High Court (in Uttarakhand
Subordinate Service Selection
Commission v Ranjita Rana9) - termed
as “the first view” in Lalit, J’s judgment, is the correct one, and should be
endorsed, and that the view expressed by the Allahabad and Madhya
Pradesh (in Ajay Kumar v. State of UP & Ors.10 and State of Madhya
Pradesh & Anr. v. Uday Sisode & Ors.11) – called by Justice Lalit as
the “second view” about the nature of the horizontal reservation for
women, and the mechanism spelt out (by those judgments) to fill them,
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 1623
5 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.
11 (2019) SCC OnLine MP 5750
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are not in accord with the previous judgments of this Court. I propose
to, however, add a few reasons of my own and are in no way opposed
to the views expressed by Justice Lalit.
2. This judgment is the third in sequence, and deals with a
recruitment, for the post of Constable (Civil) and Provincial Armed
Constable (PAC). The first one was delivered on 19.01.2016.12 It dealt
with the results and exclusion of candidates who had used whiteners
and blades, while attempting the selection test. This court had in that
judgment, held that such applicants’ candidature could not have been
rejected. The second judgment, dated 27.11.201813 this court directed as
follows:
“Therefore, total number of candidates who could be selected
in the selection relatable to the year 2011 in any case ought
not to be less than 4010+1022. Status and identity of the
candidates who form the group of 1022 candidates is very
clear. In this context it is to be noted that the vacancies notified
are only approximate and there is nothing wrong if the number
increases in the exigencies of service.
29. We now come to the issue as to what should be the approach
in respect of vacant posts on two counts. The tabular chart
then states that 226 posts remained unfilled as a result of non-
availability of candidates in the category of dependents of
freedom fighters etc. and 607 posts are lying vacant as a
result of candidates who discontinued training or did not
qualify in medical
examination/character verification.
Theoretically, 226 unfilled posts ought to be carried forward
for further selection as those posts were earmarked for
dependents of freedom fighters.”
3. The controversy that arises in the present round of litigation is
the correct method of filling the quota reserved for women candidates
(“horizontal quota”). It is the complaint of the applicants, who are largely
women, belonging to the Other Backward Class categories, that the
state has not correctly applied the rule of reservation, and denied such
OBC women candidates the benefit of “migration”, i.e. adjustment in
the general category vacancies.
4. The U.P. Public Services (Reservation for Physically
Handicapped, Dependents of Freedom Fighters and Ex-Servicemen)
Act, 1993 (hereafter “the 1993 Act”) provided for reservations to persons
with disability, ex-servicemen and dependents of freedom fighters. The
U.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)
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [S. RAVINDRA BHAT, J.]
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Tribes and Other Backward Classes) Act, 1994 is the comprehensive
law, enacted by the state of UP providing for reservation for social
categories (SC/ST/OBCs). The provisions of the 1993 Act (for persons
with disabilities, ex-servicemen and dependents of freedom fighters
[“DFF” hereafter”]) clearly stated by Section 3 (3) that
“(3) The persons selected against the vacancies reserved
under subsection (1) shall be placed in the appropriate
categories to which they belong. For example, if a selected
person belongs to Scheduled Castes category he will be placed
in that quota by making necessary adjustments; if he belongs
to Scheduled Tribes category, he will be placed in that quota
by making necessary adjustments; if he belongs to Other
Backward Class of Citizens, category, he will be placed in
that quota by making necessary adjustments. Similarly. if he
belongs to open competition category, he will be placed in
that category by making necessary adjustments.”
It is thus apparent that the reservations under the 1993 Act were
“horizontal” in nature.
5. The quota provided for women, as well as dependents of
freedom fighters (DFF) and ex-servicemen, in the present case are
characterized as ‘horizontal’ whereas the quotas for social groups (SCs,
STs, OBCs) are characterized as ‘vertical’. The coining of this differential
terminology is underscored by the fact that the latter is sanctioned explicitly
in Article 16(4), whereas
the former is evolved through a process of
permissible classification (Articles 14, 16(1)), although such horizontal
reservations have been located additionally in Article 15 (3)14.
6. In the State of UP, there is no law or rule (framed under proviso
to Article 309 of the Constitution) that mandates reservation for women.
However, a Government Order was issued, applicable to all posts, on
26.2.1999. The government order (GO) issued by the government of
Uttar Pradesh (UP) order providing for horizontal reservation for women,
dated 26.02.1999, is extracted below.15
“No-14/1/9/Ka-2/4
Personnel Section-2 Lucknow,       dated 26 February 1999
From,
Shri. Sudhir Kumar, Secretary,
Government of Uttar Pradesh.
14See Government of Andhra Pradesh v P.B. Vijay Kumar 1995 (4) SCC 520 (this court
held that “Making special provisions for women in respect of employment or posts
under the State is an integral part of Article 15 (3). This power conferred under Article
15 (3), is not whittled down in any manner by Article 16.)”
15 Extracted from Sunaina Tripathi v. State of UP &Ors., (2012) 3 ADJ 463.
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To,
1 - All Principal Secretaries / Secretaries, Government of Uttar
Pradesh.
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 direct
recruitment to public services and posts under the state.
Sir,
I have been directed to inform that the Government has decided
to provide 20 percent reservation for women on the process of direct
recruitment to state public services and posts subject to the following
conditions:
1. Reservation will be applicable to the process of direct
recruitment to public services and posts under the state. There
will be no promotion posts.
2. The reservation will be horizontal in nature i.e. to say that
category for which a women has been selected under the
aforesaid reservation policy for posts for women in Public
Services and on the posts meant for direct recruitment under
State Government, shall be adjusted in the same category only;
3. If a woman is selected on the basis of merit in any state
public service and post, her selection will be against the
vacancy reserved for women in that category.
4. If a suitable women candidate is not available for the post
reserved for women in Public Services and on the posts meant
for direct recruitment under State Government, then such a
post shall be filled up from amongst a suitable male candidate
and such a post shall not be carried forward for future;
5. The qualifications
required for women for direct recruitment
to the posts on the services under the state, will continue to
be in accordance with the pre-existing requirements mentioned
in the relevant recruitment rules and there will be no change
in the position on account of this rule.
6. Public services and posts refer to public services and posts
as defined in the Uttar Pradesh Public Service Reservation
Act for Scheduled Castes, Scheduled Tribes and Other
Backward Classes.
Please take steps to ensure compliance with the above orders
of the Government. You are also requested to inform all the
officers subordinate to the Government are made aware of
this order.
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [S. RAVINDRA BHAT, J.]
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Yours
Sudhir Kumar
Secretary”
7. As is apparent from a plain reading of the above government
order, the only stipulation with respect to treatment of horizontal
reservation for women, is that in case a woman candidate is selected,
she would be adjusted against the appropriate social category she belongs
to (SC/ST/OBC/OC). However, there is no rule, or direction which
prohibits the adjustment of socially reserved categories of women in the
general category or “open category”. The first indication of this is in
Indira Sawhney16 where B.P. Jeevan Reddy, J stated as follows:
“Horizontal reservations cut across the vertical reservations
- what is called interlocking reservations. To be more precise,
suppose 3% of the vacancies are reserved in favour of
physically handicapped persons; this would be a reservation
relatable to clause (1) of Article 16 (1). The persons selected
against this quota will be placed in the appropriate category;
if he belongs to SC category he will be placed in that quota
by making necessary adjustments; similarly, if he belongs to
open competition (OC) category, he will be placed in that
category by making necessary adjustments. Even after
providing for these horizontal reservations, the percentage
of reservations in favour of backward class of citizens remains
- and should remain - the same. This is how these reservations
are worked out in several States and there is no reason not to
continue
that procedure.”
8. This rule was affirmed and applied in Anil Kumar Gupta v
State of UP17, Swati Gupta v State of UP18 and Jitendra Kumar Singh
v State of UP19 and Rajesh Kumar Daria v Rajasthan Public Service
Commission20. The manner of filling the horizontal reservation category
and the vertical, social categories, was explained in Rajesh Kumar Daria
(supra) in the following terms:
“Social reservations in favour of SC, ST and OBC under
Article 16 (4) are ‘vertical reservations’. Special reservations
in favour of physically handicapped, women etc., under
Articles 16(1) or 15(3) are ‘horizontal reservations’. Where a
vertical reservation is made in favour of a backward class
16 Indira Sawhney v Union of India 1992 Supp (3) SCC 766, @ para 812 (SCC Reports)]
17 1995 (5) SCC 173
18 1995 (2) SCC 560
19 2010 (3) SCC 119
20 2007 (8) SCC 785
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under Article 16 (4), the candidates belonging to such
backward class, may compete for non-reserved posts and if
they are appointed to the non-reserved posts on their own
merit, their numbers will not be counted against the quota
reserved for the respective backward class. Therefore, if the
number of SC candidates, who by their own merit, get selected
to open competition vacancies, equals or even exceeds the
percentage of posts reserved for SC candidates, it cannot be
said the reservation quota for SCs has been filled. The entire
reservation quota will be intact and available in addition to
those selected under Open Competition category. [Vide Indira
Sawhney, R. K. Sabharwal vs. State of Punjab, Union of India
v 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 within
the social reservation for Scheduled Castes, the proper
procedure is first to fill up the quota for scheduled castes in
order of merit and then find out the number of candidates
among them who belong to the special reservation group of
‘Scheduled Castes-Women’. If the number of women in such
list is equal to or more than the number of special reservation
quota, then there is no need for further selection towards the
special reservation quota. Only if there is any shortfall, the
requisite number of scheduled
caste women shall have to be
taken by deleting the corresponding number of candidates
from the bottom of the list relating to Scheduled Castes. To
this extent, horizontal (special) reservation differs from vertical
(social) reservation. Thus women selected on merit within the
vertical reservation quota will be counted against the
horizontal reservation for women.”
9. The features of vertical reservations are:
(i)
They cannot be filled by the open category, or categories of
candidates other than those specified and have to be filled
by 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 on
meritorious performance;
(iii)
In case of migration from reserved to open category, the
vacancy in the reserved category should be filled by another
person from the same specified category, lower in rank,
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(iv)
If the vacancies cannot be filled by the specified categories
due to shortfall of candidates, the vacancies are to be ‘carried
forward’ or dealt with appropriately by rules.
10. Horizontal reservations on the other hand, by their nature, are
not inviolate pools or carved in stone. They are premised on their overlaps
and are ‘interlocking’ reservations21. As a sequel, they are to be calculated
concurrently and along with the inviolate ‘vertical’ (or “social”) reservation
quotas, by application of the various steps laid out with clarity in paragraph
11 of Justice Lalit’s judgement. They cannot be carried forward. The
first rule that applies to filling horizontal reservation quotas is one of
adjustment, i.e. examining whether on merit any of the horizontal
categories are adjusted in the merit list in the open category, and then, in
the quota for such horizontal category within the particular specified/
social reservation.
11. The open category is not a ‘quota’, but rather available to all
women and men alike. Similarly, as held in Rajesh Kumar Daria22,
there is no quota for men. If we are to accept the second view [as held
by the Allahabad High Court in Ajay Kumar v. State of UP23 and the
Madhya Pradesh High Court in State of Madhya Pradesh & Anr. v.
Uday Sisode & Ors24, referred to in paragraph 20 of Justice Lalit’s
judgement], the result would be confining the number of women
candidates, irrespective of their
performance, in their social reservation
categories and therefore, destructive of logic and merit. The second view,
therefore – perhaps unconsciously supports- but definitely results in
confining the number of women in the select list to the overall numerical
quota assured by the rule.
12. In my opinion, the second view collapse completely, when
more than the stipulated percentage 20% (say, 40% or 50%) of women
candidates figure in the most meritorious category. The said second
view in Ajay Kumar25 and Uday Sisode26 thus penalizes merit. The
principle of mobility or migration, upheld by this court in Union of India
v. Ramesh Ram27 and other cases, would then have discriminatory
application, 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
24 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 the
judgment 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 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.”
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would not apply to the case of women in such special categories (as
glaringly evident from the facts of this case) to women who score equal
to or more than their counterparts in the open/ general category.
13. The judgments in Anil Kumar Gupta v State of UP28, Swati
Gupta v State of UP29, and Jitendra Kumar Singh v State of UP30,
were decisions which arose from recruitment cases concerning the state
of UP. In fact in Jitendra Kumar Singh31, the court even considered
the 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 series
is a decision of this court in Anupal Singh v. State of U.P32 where the
court had to consider, as one of the contentions raised, the question
similar to the one which arises for consideration in this case, i.e. whether
social 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 per
the statutory requirement, the horizontal reserved vacancies
were unfilled and those unfilled vacancies of horizontal
category were filled by vertical reservation candidates/other
category candidates, which is in violation of the statutory
provisions vitiating the selection process. On behalf of the
U.P. Public Service Commission, Mr Shrish Kumar Misra,
learned counsel has furnished the
details as to the number of
vacancies reserved for horizontal category and the number
of candidates found suitable and placed in the respective
categories. The said details are as under:
Category 
No. of 
vacancies
No. of selected 
candidates
Women
1325
156
Dependents of Freedom Fighters
132
45
Ex-Servicemen
330
NIL
Partially blind
84
84
Partially deaf
84
57
One-arm
42
42
One-leg
42
42
On behalf of the U.P. Public Service Commission, it was
submitted that one of the policies of the State Government
regarding horizontal reservation is that, if the suitable
28 Supra n. 17
29 Supra n. 18
30 Supra n. 19
31 Supra n. 19
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candidates for filling the vacancies reserved for such posts
of horizontal reservation are not available and the same are
not carried forward; they are filled up by other suitable
candidates from amongst the candidates belonging to vertically
reserved categories according to their merit. It was submitted
that unfilled horizontal reservation vacancies were thus filled
up by suitable candidates of respective vertical categories
according to their merit which is as per the policy of the
Government. The High Court was not right in finding fault
with the filling up of vacancies reserved for horizontal
reservation with other candidates of respective vertical
reservation.”
Thereafter the court recorded its conclusions, in the following terms:
“84.6. The filling up of the unfilled horizontal reservation by
the candidates from the respective vertical reservation is in
accordance with the policy of the Government and the same
cannot be faulted with.”
14. In view of these clear decisions, it is too late in the day for the
respondent state to contend that women candidates who are entitled to
benefit of social category reservations, cannot fill open category
vacancies. The said view is starkly exposed as misconceived, because it
would result in such women candidates with less merit (in the open
category) being selected, and those with more merit than such selected
candidates, (in the social/vertical reservation category) being
left out of
selection.
15. I would conclude by saying that reservations, both vertical and
horizontal, are method of ensuring representation in public services. These
are not to be seen as rigid “slots”, where a candidate’s merit, which
otherwise entitles her to be shown in the open general category, is
foreclosed, as the consequence would be, if the state’s argument is
accepted. Doing so, would result in a communal reservation, where each
social category is confined within the extent of their reservation, thus
negating merit. The open category is open to all, and the only condition
for a candidate to be shown in it is merit, regardless of whether reservation
benefit of either type is available to her or him.
16. I agree that all applications and WP 237/2020, pending before
this court, are to be disposed of in terms of the operative directions in
Lalit, J’s judgment.
Ankit Gyan
Writ Petition dismissed and applications partly allowed.