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

A 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 B 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 C 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. F “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 G Scheduled Tribe (ST) …..17 Socially and Educationally Backward Classes (SEBC) .....20 Horizontal Reservation for Women (33% in each of the above categories) OC 17 H SC 04

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ST 06 A 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 B 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. C 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. D 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 E 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). F 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 G 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 H

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A 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 B 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. C 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.”

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 325 ORS. [UDAY UMESH LALIT, J.]

21Copy pinpoint21. The view taken by the High Courts of Rajasthan, Bombay, A 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 B 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 C Pradesh and another vs. Uday Sisode and others 31, 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/ 30 (2019) 5 ALJ 466 31 (2019) SCC OnLine MP 5750 H

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A 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 B 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 C 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 D 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 E 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.”

F 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 G 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 H (2017) 12 SCC 680

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 327 ORS. [UDAY UMESH LALIT, J.]

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

22Copy pinpoint22. 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. C “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.” F

23Copy pinpoint23. 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 G 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 H

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A 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”.

24Copy pinpoint24. 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” B 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.

25Copy pinpoint25. 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 H

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 329 ORS. [UDAY UMESH LALIT, J.]

secured lesser marks than the Applicants. The claim of the Applicants A 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.

26Copy pinpoint26. 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: - B (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 C 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’:- D (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– E 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 F (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, G 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. H

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A (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/ SCHEDULED SCHEDULED OTHER B GENERAL CASTES TRIBES BACKWARD CLASSES SEATS 5 20 10 20 AVAILABLE 0 MINIMUM 1 6 3 6 SEATS FOR 5 WOMEN SEATS 1 7 3 9 OCCUPIED BY 1 C WOMEN BEFORE APPLICATION OF HORIZANTAL RESERVATION SHORTFALL, IF 4 NI NI NIL ANY L L D

27Copy pinpoint27. Having allocated first 50 seats in Open General Category and filled up other vertical column of reservation, the next step is to effect horizontal reservation for women. If the reservation for women was to be “overall horizontal reservation”, there are 30 women (11+07+03+09) and nothing further is required to be done. However, if the horizontal reservation for women is to be taken as “compartmentalized”, as we are concerned in the present matter and the instant illustration, the appropriate steps must comprise of following:- (A) Since the shortfall for women is of four seats in Open / General Category, last four male candidates namely those at Serial Nos. 46, 47, 48 and 49 initially allocated to Open/ General Category, will have to be displaced. The candidate at Serial No. 50, being a woman, cannot be displaced. (B) The male candidates at Serial Nos.46 and 47 being from Open/General Category, after such displacement will be completely out of reckoning as they cannot go to any reserved category. (C) The candidates at Serial Nos.48 and 49 being more meritorious than the candidates originally placed in the vertical column of reservation for Scheduled Castes, must go back to their own vertical column. This will cause resultant displacement of two candidates in that vertical column of reservation. The 20th candidate, whose overall merit position is at Serial No.86, though a female, but being in excess of H

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 331 ORS. [UDAY UMESH LALIT, J.]

quota for Scheduled Castes females and a male candidate A 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. B 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 C 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. D

28Copy pinpoint28. 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 E 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/ F 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] G

29Copy pinpoint29. 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 H

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A reservation). In our view, these sentences cannot be taken as a declaration supporting the second view and are certainly being picked out of context. The observations in paragraph 18 in Anil Kumar Gupta and Others 13 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. F (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

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 333 ORS. [UDAY UMESH LALIT, J.]

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.

30Copy pinpoint30. The decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht19 was also completely misunderstood. B 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 Bisht 19 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.

31Copy pinpoint31. 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. 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 F 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. G

32Copy pinpoint32. 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. H

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33Copy pinpoint33. 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.

34Copy pinpoint34. 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 B 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 C 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 D Maharashtra25 was correct.

35Copy pinpoint35. 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 E entire discussion and analysis in the present case is, therefore, from said perspective.

36Copy pinpoint36. 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.

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 335 ORS. [UDAY UMESH LALIT, J.]

37Copy pinpoint37. 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. D 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. E 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.

38Copy pinpoint38. Since it has been accepted that none of the candidates coming from ‘SC Female Category’ had secured more marks than 274.8298, F the claims of the Applicant no.2 and all similarly situated candidates are rejected.

39Copy pinpoint39. 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

40Copy pinpoint40. This Writ Petition under Article 32 has been filed by 14 female G 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.” H

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41Copy pinpoint41. 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.

42Copy pinpoint42. If there are unfilled vacancies, it is upto the authorities to act purely in terms of the concerned statutory provisions. Neither any case B 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.

43Copy pinpoint43. This Writ Petition is, therefore, without any merit and is dismissed.

C 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 Rajasthan2); Gujarat High Court (in Tamannaben Ashokbhai Desai v Shital Amrutlal Nishar 3), D 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 & Ors 6 , Charushila v State of Maharashtra, 7 Shantabai Laxman Doiphode v State of E 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 F 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 G 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 H (2019) SCC OnLine MP 5750

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 337 ORS. [S. RAVINDRA BHAT, J.]

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. E 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 F 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 G 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) H

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A 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 B 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 C 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.

D 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 E 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 F 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, G Shri. Sudhir Kumar, Secretary, Government of Uttar Pradesh. 14 See 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 H Extracted from Sunaina Tripathi v. State of UP &Ors., (2012) 3 ADJ 463.

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 339 ORS. [S. RAVINDRA BHAT, J.]

To, A 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 B 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: C

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 D 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 G 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. H

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A 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, B 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 C - 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 G 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 H 2007 (8) SCC 785

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 341 ORS. [S. RAVINDRA BHAT, J.]

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. C 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.” F

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) G 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, H

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A (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 D 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 E 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 F 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 G 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.”

SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH & 343 ORS. [S. RAVINDRA BHAT, J.]

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. C 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 No. of selected vacancies candidates Women 1325 156 Dependents of Freedom Fighters 132 45

Ex-Servicemen 330 N IL F 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 G regarding horizontal reservation is that, if the suitable 28 Supra n. 17 29 Supra n. 18 30 Supra n. 19 31 Supra n. 19 32 2020 (2) SCC 173 H

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A 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 B 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.” C 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.

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