Karnataka High Court
Karnataka Public Service Commission vs Marigadeppa. K on 21 September, 2022
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE G.NARENDAR
AND
THE HON'BLE MR. JUSTICE C.M.JOSHI
WRIT PETITION NO.33941/2018 (S-KAT)
BETWEEN:
KARNATAKA PUBLIC SERVICE COMMISSION
UDYOGA SOUDHA,
BENGALURU-560 001,
REPRESENTED BY ITS SECRETARY.
... PETITIONER
(BY SRI REUBEN JACOB, SR. ADV. FOR
SRI M.N.PAWAN KUMAR, ADV.)
AND:
1. MARIGADEPPA. K
S/O. LATE PAKKEERAPPA. K,
AGED ABOUT 36 YEARS,
WORKING AS LECTURER IN HISTORY
GOVERNMENT PRE UNIVERSITY COLLEGE,
TEKKALAKOTE,
SHIRAGUPPA TALUK,
BELLARY DISTRICT-583 122.
2. STATE OF KARNATAKA
FINANCE DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU-560 001,
REPRESENTED BY ITS
ADDITIONAL CHIEF SECERTARY.
2
3. THE DEPUTY COMMISSIONER
BELLARY DISTRICT,
BELLARY-583 101.
... RESPONDENTS
(BY SRI P.S.RAJAGOPAL, SR. ADV. FOR
SMT. ASHWINI RAJAGOPAL, ADV. FOR R1,
SMT. SHILPA S.GOGI, HCGP FOR R2 & R3.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
FINAL ORDER DTD 01.06.2018 PASSED IN APPLICATION
NO.4602/2018 BY THE KARNATAKA STATE ADMINISTRATIVE
TRIBUNAL AT BENGALURU VIDE ANNX-C AND CONSEQUENTLY
DISMISS THE SAID APPLICATION NO.4602/2018 FILED BY THE
R-1 ETC.
THIS WRIT PETITION COMING ON FOR "HEARING ON
INTERLOCUTORY APPLICATION" THIS DAY, G.NARENDAR J,
MADE THE FOLLOWING:
ORDER
Heard the learned Senior counsel Sri Reuben Jacob along with Sri M N Pawan Kumar, on behalf of the petitioner and the learned Senior counsel Sri P S Rajagopal on behalf of the first respondent and the learned High Court Government Pleader for respondent Nos.2 and 3.
2. The brief facts necessary for disposal of the petition are as under:
The petitioner invited applications from eligible candidates for recruitment to the Gazetted Probationers 3 posts on 22.1.2015 and in all 440 posts were notified. Out of the 440 posts 55 were for the posts of Assistant Commercial of Commercial Taxes. Out of 55 posts 44 were in the residual cadre and 11 posts were earmarked for Hyderabad-Karnataka region in compliance with the mandates of Article 371(J) of the Constitution of India.
That the first respondent submitted his applications and the application was found in order.
3. It is the specific case of the petitioner that the respondent had applied for the post reserved under the Hyderabad Karnataka 2A Rural category and a copy of the application is produced as Annexure - A4. Copy of the eligibility certificate is produced as Annexure A5 and A6.
That the first respondent participated in the examinations conducted by the petitioner and stood meritorious both in the preliminary and the main examination. The petitioner having academically qualified was issued a letter and called for an interview on 04.04.2017. That the first respondent 4 had secured 1130 marks and his name was found amongst the toppers and more meritorious of the candidates.
4. In view of he holding a government post and he coming under the creamy layer he requested that he be considered for selection under the GM category. Copy of the representation dated 31.3.2017 and the acknowledgement are produced as Annexures A11 and A12.
That the representation was made much prior to the publication of the provisional select list. The representations were made on 31.3.2017 and the select list was published on 22.04.2017 and that the name of the petitioner was shown as selected against GM (2A) Rural category despite his representation clarifying that he was not claiming the appointment against the reserved quota.
Despite the same the name of the petitioner was found amongst the candidates selected against the reserved category, to which reservation, the first respondent was not entitled to claim, in view of his being employed in the 5 government as a lecturer in a Government P.U. College and consequently falling under the creamy layer category.
5. It is pertinent to note at this stage itself that the marks obtained by the topper [GM category] in the residual cadre as evidenced in Annexure A16 is 1286. The petitioner is shown as having been appointed as against the "2A category" which according to the respondent, he is ineligible to claim as he falls under the creamy layer. The respondent's representation having fallen on deaf ears, the respondent approached the Tribunal.
6. It is seen that the candidate selected under the General Merit category against the post reserved for the Hyderabad Karnataka Region has secured only 1124.75 marks. The marks secured by the petitioner is 1130 which is apparently more than the marks secured by the candidate appointed under the General Merit category. In that view of the matter, it is contended that the petitioner should have been selected under the General Merit category and not under the 2A category.
67. The short question that arises is "whether the petitioner should have been slotted against the post available in the general merit category or should have been appointed against the 2A category in view of his having secured the highest masks?" The issue is no more res integra.
8. The Hon'ble Apex Court while holding so, has placed reliance on a long line of rulings of its own. It would be useful to refer to some of the observation of the Hon'ble Apex Court rendered by a full bench of the Apex Court in the case of Sadhana Singh Dangi vs. Pinki Asati and others reported in 2021 SCC OnLine SC 1329 wherein the Hon'ble Apex Court has observed in paragraphs 5, 7, 14, 15, 17, 27 and 31 as under:
"5. This led to the fresh challenges in the form of Writ Petition No. 19126 of 2019 and other connected matters. The questions that arose for consideration, were set out by the High Court in the judgment under appeal as under:--
"25. In view of the aforesaid submissions, the issue which has crystallized for consideration is that - "Whether the OBC (Female) who scored more marks 7 than the General Category woman candidates would secure a seat/post in un-reserved female category; and whether in a case of horizontal reservation, reserved-category candidates scoring higher marks than General Category candidates would be entitled to get a seat/post of un-reserved categories?"
7. In sum and substance, according to the High Court:
(a) Going by the settled principles of law, migration of reserved category candidate on the basis of merit for allotment of a seat in General Category would certainly be applicable to vertical reservation.
(b) However, the same principle would not get attracted in case of horizontal compartmentalised reservation.
(c) By virtue of Rule 3 of the 1997 Rules, the same principle as applicable to vertical reservations would not be applicable to horizontal reservations.
(d) If an OBC (Female) had competed against a reserved category, she would not be eligible to be placed in the merit list for Unreserved Category at the stage of application of horizontal reservation.
(e) Even if an OBC (Female) had secured first rank in the overall merit list, being a candidate of reserved category, that is to say OBC (Female), she would not 8 be allocated or earmarked a seat as General Unreserved Female (UNRF).
14. Some of the relevant paragraphs from the leading judgment in Saurav Yadav (supra) are as under:
"26. The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in "Open or General Category" is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. Apart from the extracts from the decisions of this Court in Indra Sawhney and R.K. Sabharwal the observations by the Constitution Bench of this Court in V.V. Giri v. D. Susi Dora, though in the context of election law, are quite noteworthy : (AIR pp. 1326-27, paras 21-22) "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 9 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."
27. The High Courts of Rajasthan, Bombay, Uttarakhand, and Gujarat have adopted the same principle while dealing with horizontal reservation whereas the High Court of Allahabad and Madhya Pradesh have taken a contrary view. These two views, for facility, are referred to as the "first view" and the "second view" respectively. The second view that weighed with the High Courts of Allahabad and Madhya Pradesh is essentially based on the premise that after the first two steps as detailed in para 18 of the decision in Anil Kumar Gupta and after vertical reservations are provided for, at the stage of accommodating candidates for effecting horizontal 10 reservation, the candidates from reserved categories can be adjusted only against their own categories under the vertical reservation concerned and not against the "Open or General Category".
28. Thus, according to the second view, different principles must be adopted at two stages; in that:
(I) At the initial stage when the "Open or General Category" seats are to be filled, the claim of all reserved category candidates based on merit must be considered and if any candidates from such reserved categories, on their own merit, are entitled to be selected against Open or General Category seats, such placement of the reserved category candidate is not to affect in any manner the quota reserved for such categories in vertical reservation.
(II) However, when it comes to adjustment at the stage of horizontal reservation, even if, such reserved category candidates are entitled, on merit, to be considered and accommodated against Open or General seats, at that stage the candidates from any reserved category can be adjusted only and only if there is scope for their adjustment in their own vertical column of reservation.
Such exercise would be premised on following postulates:
11(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.
29. The second view may lead to a situation where, while making adjustment for horizontal reservation in Open or General Category seats, less meritorious candidates may be adjusted, as has happened in the present matter. Admittedly, the last selected candidates in Open General female category while making adjustment of horizontal reservation had secured lesser marks than the applicants. The claim of the applicants was disregarded on the ground that they could claim only and only if there was a vacancy 12 or chance for them to be accommodated in their respective column of vertical reservation. ...
34. The second view, based on adoption of a different principle at the stage of horizontal reservation as against the 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 Rajesh Kumar Daria. The following sentences from these two decisions are relied upon in support of the second view:
"18. ... 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 SCC p. 185, para 18 of Anil Kumar Gupta]
9. ... But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations." [from SCC p. 792, para 9 of Rajesh Kumar Daria] 13 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.
35. The observations in para 18 in Anil Kumar Gupta 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 vertical reservation concerned 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 14 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 sidelined. That was never the intent of the observations sought to be relied upon in support of the second view.
36. Similarly, the observations in Rajesh Kumar Daria were in the context of emphasising 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 selected candidates concerned is not to apply for horizontal reservation.
Adopting principle (a) at the stage of horizontal reservation, the respondents in Rajesh Kumar Daria6 had separately allocated 11 seats for women in General Category as part of special or horizontal reservation, though another set of 11 women 15 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 para 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.
37. The decision of this Court in Uttaranchal Public Service Commission v. Mamta Bisht was also completely misunderstood. In that case one Neetu Joshi had secured a seat in General Category on her own merit and she also answered the category of horizontal reservation earmarked for "Uttaranchal Mahila". The attempt on part of Mamta Bisht, the original writ petitioner, was to submit that said Neetu Joshi having been appointed on her own merit in General Category, the seat meant for "Uttaranchal Mahila" category had to be filled up by other candidates. In essence, what was projected was the same stand taken by the respondents in Rajesh Kumar Daria, which was expressly rejected in that case. It is for this reason that para 15 of the decision in 16 Uttaranchal Public Service Commission v. Mamta Bisht expressly returned a finding that the judgment rendered by the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria and the appeal was allowed. This decision is thus not of any help or assistance in support of the second view.
38. 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.
1739. 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.
[emphasis supplied by this Court]
40. 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.
15. The concurring judgment authored by S. Ravindra Bhat, J. made following observations:--
"61. The open category is not a "quota", but rather available to all women and men alike. Similarly, as held in Rajesh Kumar Daria, 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 U.P. and the Madhya Pradesh High Court in State of M.P. v. Uday Sisode, referred to in paras 24 and 25 of Lalit, J.'s judgment], 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 18 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.
62. In my opinion, the second view collapses completely, when more than the stipulated percentage 20% (say, 40% or 50%) of women candidates figure in the most meritorious category. The said second view in Ajay Kumar and Uday Sisode thus penalises merit. The principle of mobility or migration, upheld by this Court in Union of India v. Ramesh Ram 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."
16. This Court thus considered two views, one which was taken by the High Courts of Rajasthan, Bombay, Gujarat and Uttarakhand; and, the second, which had weighed with the High Courts of Allahabad and Madhya Pradesh. After considering the totality of the circumstances as well as the rival submissions, the view taken by the High Courts of Rajasthan, Bombay, Gujarat and Uttarakhand was accepted to be the correct view and the one which was taken by the High 19 Courts of Allahabad and Madhya Pradesh was not approved.
17. The decision of this Court in Sourav Yadav had considered all the cases on the point starting from Indra Sawhney (supra) up to Mamta Bisht (supra) as well as other decisions. It was finally concluded that the candidates belonging to the category of OBC (Female) or any other reserved category (Female) were entitled as a matter of right to have their candidature considered against the category meant for Unreserved Female Candidates if their merit position demanded so. It was further held that the category of Unreserved (Female) is not a specially allocated or reserved for those candidates who did not belong to any of the categories of SC, ST or OBCs and that by very nature "unreserved category" must mean and include every person who on the strength of merit could be entitled to be considered in that category.
[emphasis supplied by this Court]
27. The law laid down in Saurav Yadav is very clear that even while applying horizontal reservation, the merit must be given precedence and that if the candidates who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates.
[emphasis supplied by this Court] 20
31. It is quite clear that the candidates represented by Mr. Rungta were placed at a higher position in the Select List but unfortunately they were not given appointments along with the candidates who were at a lower level. These candidates cannot be held responsible for the anomaly which has arisen as a result of their late appointments. In order to do complete justice, we, therefore, direct:
a. All candidates who were at higher positions in merit but were appointed later shall be deemed to have been appointed on the earliest of the dates when their juniors or candidates at lower levels were appointed.
b. Their seniority shall be reckoned from such deemed date of appointment and not from their actual date of appointments.
c. The issue of probation for all categories of candidates shall be considered together as one single batch and the issue of probation shall not be segregated amongst the members of the batch.
d. All such candidates who were at higher levels of the revised list shall be entitled to their salaries and emoluments for the period of about seven months for which they were deprived of service."
9. It would also be useful to refer to the observations of the ruling of the Apex Court in the case of Bharat Sanchar 21 Nigam Limited and Another vs. Sandeep Choudhary and Others reported in 2022 SCC OnLine SC 524.
Reliance is placed on paragahs 20, 22, 23, 24, 25, 26 and 27 which reads as under:
"20. The short question which is posed for the consideration of this Court is:--
"Whether in a case where the reserved category candidates secured more marks than the general category candidates, such reserved category candidates will have to be first adjusted in the general category pool and they shall be considered for appointment in the general category pool or against the vacancies meant for reserved category candidates?
[emphasis supplied by this Court]
22. In the case of Indra Sawhney (supra) in paragraph 812, it is observed and held as under:-- "812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture : all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as "vertical reservations"
and "horizontal reservations". The reservations in 22 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."
23. In Rajesh Kumar Daria (supra), in paragraphs 8 to 11, it is observed and held as under:--
"8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, 23 if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be:"For SC :
30 posts, of which 9 posts are for women." We find that many a time this is wrongly described thus:"For SC : 21 posts for men and 9 posts for women, in all 30 posts." Obviously, there is, and there can be, no reservation category of "male" or "men".
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc. under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact 24 and available in addition to those selected under open competition category. (Vide Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217], R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684] and Ritesh R. Sah v. Y.L. Yamul [(1996) 3 SCC 253]. 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:
25If 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 26 candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven woman candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the selection list) and another eleven (candidates at Sl. Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 and 80 of the selection list) included under reservation quota for "general category women". This is clearly impermissible. The process of selections made by RPSC amounts to treating the 20% reservation for women as a vertical reservation, instead of being a horizontal reservation within the vertical reservation.
11. Similarly, we find that in regard to 24 posts for OBC, 19 candidates were selected by RPSC in accordance with merit from among OBC candidates which included three woman candidates. Thereafter, another five women were selected under the category of "OBC women", instead of adding only two which was the shortfall. Thus there were in all 8 women candidates among the 24 OBC candidates found in the selection list. The proper course was to list 24 OBC candidates as per the merit and then find out number 27 of woman candidates among them, and only fill the shortfall to make up the quota of five for women."
(emphasis supplied)"
24. In the case of Uttaranchal Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204, the High Court took the view that the reserved category candidate, on her own merit was entitled to be considered in the general category and she could not have been counted against the reserved category. While upholding the judgment of the High Court, this Court observed and held in paragraphs 3, 4, 13 and 15 as under:--
"3. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates. Some women candidates stood selected in the general category while others had been given the benefit of horizontal reservation being residents of Uttaranchal. Respondent 1, being aggrieved preferred Writ Petition No. 780 of 2003 (M/B) in the High Court of Uttaranchal seeking quashment of select list dated 31- 7-2003 mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in the general category and had it been done so, Respondent 1 could have been selected in the reserved category being a woman of Uttaranchal. It had also been pleaded in the petition that some of the women candidates who not only 28 claimed the benefit of horizontal reservation but have been selected giving the said benefit, did not submit their respective certificate of domicile at the time of filling up the application forms but they produced the said certificate at a later stage and it was accepted.
4. The High Court accepted the first submission of Respondent 1 after examining the record of selection and came to the conclusion that the last selected woman candidate who was given the benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in the general category. Thus, the said candidate ought to have been appointed against the general category vacancy and Respondent 1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women. Hence, these appeals.
***
13. In fact, the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidates (social) as it held as under:
'In view of the above, Neetu Joshi (Sl. No. 9, Roll No. 12320) has wrongly been counted by Respondent 3/Commission against five seats reserved for Uttaranchal Women General Category as she has competed on her own merit as general candidate and 29 as the fifth candidate the petitioner should have been counted for Uttaranchal Women General Category seats.' Admittedly, the said Neetu Joshi has not been impleaded as a respondent. It has been stated at the Bar that an application for impleadment had been filed but there is nothing on record to show that the said application had ever been allowed. Attempt had been made to implead some successful candidates before this Court but those applications stood rejected by this Court.
14. The view taken by the High Court on application of horizontal reservation is contrary to the law laid down by this Court in Rajesh Kumar Daria v. Rajasthan Public Service Commission [(2007) 8 SCC 785], wherein dealing with a similar issue this Court held as under : (SCC pp. 790-91, para 9) '9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SCs, STs and OBCs under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc. under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved 30 posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217], R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684] and Ritesh R. Sah v. Y.L. Yamul [(1996) 3 SCC 253].) 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 31 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.'
15. In view of the above, it is evident that the judgment and order of the High Court is not in consonance with the law laid down by this Court in Rajesh Kumar Daria [(2007) 8 SCC 785]. The judgment and order impugned herein is liable to be set aside and all the consequential orders become unenforceable and inconsequential. Thus, the appeals succeed and are allowed. The judgment and order of the High Court dated 26-10-2005 passed in Mamta Bisht v. State [WPMB No. 780 of 2003, order dated 26-10-2005 (Utt)] is hereby set aside. No costs."
(emphasis in original)
25. In Ritesh R. Sah v. Y.L. Yamul, (1996) 3 SCC 253 after noticing the Larger Bench decision of this Court in the case of Indra Sawhney (supra) and R.K. Sabharwal (supra), it is observed in paragraph 13 to 16 as under:
32"13. There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4).
14. In Indra Sawhney v. Union of India [1992 Supp (3) SCC 217] commonly known as Mandal case, this Court held thus : (SCC p. 735, para 811) '811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.'
15. In R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745] the Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-à-vis reservation and held thus : (SCC p. 750, para 4) '4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts 33 shown at the reserve points are to be filled from amongst the members of reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserved category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against 34 the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.'
16. In Union of India v. Virpal Singh Chauhan [(1995) 6 SCC 684] (SCC at p. 705) it has been held that while determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates."
26. In a more recent decision this Court in the case of Saurav Yadav v. State of U.P., (2021) 4 SCC 542 after 35 referring to all the earlier judgments on vertical reservation has observed and held that it is well settled that candidates belonging to any of the vertical reservation categories are entitled to be selected in "open or general" category and it is also further observed 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 that they belong.
27. Similar view has been expressed by this Court in another recent decision of this Court in the case of Sadhana Singh Dangi v. Pinki Asati, (2022) 1 Scale
534. By the said decision, it is reiterated that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. It is further observed and held that even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It is further observed that the candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so."
[emphasis supplied by this court] 36
10. From a reading of the above it is apparent that the order of the tribunal is in conformity with the law laid down by the Apex Court. The learned Senior counsel appearing for the petitioner would make a feeble attempt to draw a distinction, on the basis of vertical and horizontal reservation. The discussion supra, categorically demonstrates that the said issues have been dealt with by the Hon'ble Apex Court in the two rulings referred to above.
The petitioner has also placed reliance on the rulings reported in (2021) 4 SCC 542 (Saurav Yadav and others vs. State of Uttar Pradesh and others) and ironically the same also does not support the stand of the petitioner.
Accordingly, the writ petition requires to be rejected and is accordingly rejected.
Sd/-
JUDGE Sd/-
JUDGE ykl CT-HR