Saurav Yadav v. State of Uttar Pradesh

1 Open 17750 2016 1038 2080[4] 2 OBC 9585 1089 561 11235 3 SC 7455 847 436 8738 4 ST 710 81 42 833 Total 35500 4033 2077 41610

II. Affidavit dated 21.07.2020

10. Since reliance has been placed by the State on the Order dated 16.03.2016[3] 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 respondents[6] 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 6 State of U.P. and its functionaries 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. 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 Bench[7] of the High Court with following observations: - 7 State of UP & Ors. vs. Ashish Kumar Pandey & Ors.: 2016 SCC OnLine All 2611 “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 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 point of 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 Others[8] 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: “Step 3.[1] From List -1 select 1915[8] 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 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 from the List-1. This will include only ST

8 Writ A. No.18442 of 2018 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) 1915[8] (will include GEN, OBC, ST of any state) (Only OBC, domicile of U.P.) 8046 (Only SC, domicile of U.P.) 766 (Only ST, domicile 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. 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 others[9] 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:-

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.

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. 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 Singh[9] 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 decision[3] 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 29-7-2016[7], in connection with horizontal reservation to be adopted while finalising the result, another revised 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:-

11 (1992) Supp (3) SCC 217 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.” 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:-

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:-

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 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 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:-

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 nonreserved posts and if they are appointed to the nonreserved 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 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

┌───────────────────────────────────────────────────────────────┐
│       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   │
└───────────────────────────────────────────────────────────────┘

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 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 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.

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.

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:-

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. ……………………….J. [Uday Umesh Lalit] [S. Ravindra Bhat] [Hrishikesh Roy] New Delhi; December 18, 2020.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION MISCELLANEOUS APPLICATION NO. 2641 OF 2019 IN SPECIAL LEAVE PETITION (CIVIL) NO. 23223 OF 2018 SAURAV YADAV & ORS....PETITIONER (S)

VERSUS

STATE OF UTTAR PRADESH & ORS....RESPONDENT(S) WITH W.P.(C) NO. 237 OF 2020

JUDGMENT

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 Rajasthan[1], Neelam Sharma v State of Rajasthan[2] ); Gujarat High Court (in Tamannaben Ashokbhai Desai v Shital Amrutlal Nishar[3] ), 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 12013 (4) RLW 22015 SCC (Online) Raj 139 3R/LPA NO. 1910 in R/Special Civil. App No. 18968/2018 decided on 5.8.2020 42016 SCC Online Bom 1623 52016 Mah. LJ 934 Mumbai & Ors[6], Charushila v State of Maharashtra,[7] Shantabai Laxman Doiphode v State of Maharashtra[8] ) and Uttarakhand High Court (in Uttarakhand Subordinate Service Selection Commission v Ranjita Rana[9] ) 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, 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 62019 Mah. LJ 527

92019 SCC Online Utt. 481 10(2019) 5 ALJ 466. 11(2019) SCC OnLine MP 5750 12InHanumantDutt Shukla v State of UP 2018 (16) SCC 447 13CA No.11370/2018 (Alok Kr. Singh & Others v. State of U.P. & Others) states that 226 posts remained unfilled as a result of nonavailability 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 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. 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. 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.)” 15Extracted from Sunaina Tripathi v. State of UP &Ors., (2012) 3 ADJ 463. 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. 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 under Article 16 (4), the candidates 16Indira Sawhney v Union of India 1992 Supp (3) SCC 766, @ para 812 (SCC Reports)]

202007 (8) SCC 785 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,

(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 21The expression used by B.P Jeevan Reddy, J, in Indira Sawhney (Supra)

25 Supra n. 10 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 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 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.” 28Supra n. 17 29Supra n. 18 30Supra n. 19

31 Supra n. 19 322020 (2) SCC 173 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 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 ........................................... J. [S. RAVINDRA BHAT] New Delhi, December 18, 2020.