Allahabad High Court
State Of U.P. And 2 Ors. vs Ashish Kumar Pandey And 58 Ors. on 29 July, 2016
Bench: V.K. Shukla, Umesh Chandra Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Reserved on: 24.05.2016 Delivered on: 29.07.2016 Court No. - 21 Case:-SPECIAL APPEAL DEFECTIVE No.- 338 of 2016 Appellant :- State Of U.P. And 2 Ors. Respondent :- Ashish Kumar Pandey And 58 Ors. Counsel for Appellant :- Chandra Shekhar Singh Counsel for Respondent :- Seemant Singh,Dilip Kumar Kesharwani,Gaurav Singh,Kripa Shanker Singh,Rajeev Tripathi and Case :- SPECIAL APPEAL No. - 291 of 2016 Appellant :- Rakesh Kumar Nadar And 14 Others Respondent :- Ashish Kumar Pandey And 27 Others Counsel for Appellant :- Anoop Trivedi,Pankaj Saksena,Rajeev Tripathi Counsel for Respondent :- C.S.C.,Seemant Singh Hon'ble V.K. Shukla,Acting Chief Justice Hon'ble Umesh Chandra Srivastava,J.
(Oral : V.K. Shukla, A.C.J.) In the abovemetioned Special Appeal in question, as common question of law has been engaging the attention of this Court, the Special Appeal in question are being decided collectively and Special Appeal Defective No.338 of 2016 is being treated to be leading case.
Ref: Delay Condonation Application For the reasons stated in affidavit filed in support of Delay Condonation Application, which constitutes sufficient cause, application is allowed. Delay of 14 days in filing the Special Appeal is condoned. Special Appeal is treated to have been filed well within time.
Ref: Special Appeal Both these Special Appeals are directed against the judgement and order dated 16.03.2016 passed by learned Single Judge in Writ Petition No.37599 of 2015 (Ashish Kumar Pandey and 24 others vs. State of U.P. and 29 others) connected with other writ petitions, wherein the Learned Single Judge has proceeded to allow the Writ Petitions with the following directions:
The questions framed, consequently, is answered as follows:
(i) The candidates claiming horizontal reservation (women, ex-servicemen and dependent of freedom fighter) cannot be adjusted enmasse in the open category but would have to be adjusted against their respective social category i.e. OBC, SC and ST;
(ii) the posts remaining vacant due to the shortfall of women candidates cannot be carried forward to subsequent selection, in view of the specific prohibition in the government order dated 26 February 1999, however, in respect of the other class of candidates i.e. dependent of freedom fighters, ex-servicemen, vacant post shall have to be carried forward for two subsequent selections in terms of sub-section (5) of Section 3 of Act, 1993.
For the reasons and law stated hereinabove, the writ petition deserves to be allowed. The writ petition is, accordingly, allowed with the following directions:
(i) The select list of SICP and PC (PAC) prepared pursuant to the result dated 25 June 2015 to the extent seeking to adjust/accommodating candidates under special category viz. women, ex-servicemen and dependents of freedom fighter in the open category is set aside and quashed;
(ii) all such special category candidates adjusted in open category shall be shifted and adjusted in their respective social category i.e. OBC, SC to which they belong;
(iii) the candidates under special category belonging to open category shall be adjusted/accommodated in the open category;
(iv) all adjustment, directed hereinabove (ii & iii) shall be made from bottom of the list of each social category by replacing equal number of male candidates;
(v) upon adjustment/accommodation, as directed above (ii, iii & iv), the selection and consequential appointment of equal number of male candidates shall stand automatically cancelled/ terminated forthwith;
(vi) in the open category, 262 (340-78) unfulfilled quota of women candidates shall be filled by male candidates on merit, consequently, they shall be sent for training, and if already trained, appointment letter shall be issued;
(vii) in the OBC category 27 (200-173) unfulfilled quota of OBC women candidates, shall be filled by male candidates (OBC) on merit, consequently, they shall be sent for training and thereafter, appointment letter shall be issued;
(viii) In the SC category 145 (155-10) unfulfilled quota of SC women candidates shall be filled up by male candidates (SC) on merit as provided under (vi) and (vii);
(ix) candidates belonging to other special class viz. ex-servicemen and dependents of freedom fighter shall be adjusted in their respective social category in the manner directed hereinabove (ii), (iii), (iv), (v);
(x) the vacancies, if any, remaining vacant upon adjustment as directed above (ix) in respect of posts reserved for ex-servicemen and dependents of freedom fighter would be kept vacant and carried forward to subsequent selection, provided the Board would pass an order in terms of sub-section (5) of Section 3 of Act, 1993;
(xi) Board upon determination, as directed above (x) arrives at a conclusion that the posts advertised for ex-servicemen and dependents of freedom fighter is after two selections, in that eventuality, the vacant posts shall be filled up as directed hereinabove (iii to vii);
(xii) The adjustment/accommodation directed herein above shall be made by (a) drawing the select list on merit of each category i.e. OC, OBC, and SC; (ii) drawing the list of special category candidates to be accommodated category wise. Both the lists and the order passed by the Board as directed at (x) shall be published/notified on the official website.
(xiii) The directions to be complied within three weeks from today."
Brief background of the case is that an advertisement dated 19.05.2011 was issued by Additional Secretary (Recruitment) U.P. Police Recruitment and Promotional Board U.P. (hereinafter in short called 'Board') for filling up post of Sub-Inspector in Civil Police (SICP) and Platoon Commanders (PC) in Provincial Armed Constabulary PC (PAC). In Writ Petition No.37599 of 2015 (Ashish Kumar Pandey and 24 others vs. State of U.P. and 29 others), the petitioners-opposite party claimed that they have applied pursuant to the aforementioned advertisement in question and succeeded at each stage of the proceedings but when the final result has been declared by the Board on 25.06.2015, therein in spite of the fact that their names ought to have been there in the select list, on account of wrong application of the provisions of Horizontal Reservation, the merit list in question has been totally disturbed and the said action of the Board impelled the petitioners-opposite parties to be before this Court. On the presentation of the Writ Petition in question, this Court has proceeded to entertain the matter and thereafter after exchange of pleadings the writ petition in question has been allowed and thus giving cause to the State of U.P. as well as private opposite parties to prefer the Special Appeal as already mentioned above.
Shri P.S. Patwalia, learned Senior Advocate appearing with Shri Chandra Shekhar Singh, Additional Chief Standing Counsel as well as Shri U.P. Singh, learned Standing Counsel for State of U.P. submitted before this Court that the learned Single Judge, in the present case, has totally misdirected himself, at the point of time when he has proceeded to advert to the issues ignoring the bonafide action of State Respondents whereas women category candidates have been adjusted on the basis of their inter-se merit and open category is inclusive of all categories and in view of this, there has been no infirmity in the matter of selection, further the directions that have been so issued are impracticable to be complied with and lastly the Learned Single Judge without any foundation and basis, even without caring to the fact that private incumbents were not impleaded as party, has proceeded to award stricture and in view of this, award of stricture and awarding of cost is per-se bad.
Shri Anoop Trivedi, Advocate submitted with vehemence that only 261 Female candidates were declared selected, out of which 19 female candidates were selected in their respective category and as such remaining 242 women candidates were required to be accommodated by taking aid of horizontal reservation and the contingency that has emerged, in the present case, has rightly been addressed by keeping in view the object of providing horizontal reservation and to see and ensure that inter-se horizontal reservation candidates, merit is not breached and as such, opinion that has been formed by learned Single Judge is per-se bad and totally running counter to the rule of fair play. Attempt has also been made to demonstrate that directives issued by this Court if insisted upon to be complied with would lead to an anomalous situation.
The arguments in question have been countered by Shri G.K. Singh, Senior Advocate, Shri R.K. Ojha, Senior Advocate, Shri Seemant Singh, Advocate by submitting that in the present case contrary to the terms and conditions of the recruitment process, horizontal reservation has been adhered in a designed manner in order to extend benefit to a particular group, who were already stood benefited by means of adjustment made in their respective categories, and thus crossing the limit of 50% reservation provided for and horizontal reservation cannot be equated with vertical reservation and a candidate seeking selection in the horizontal reservation will have to go in their respective category and category here is clearly referable to the respective social group i.e. Scheduled Caste (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) and in the present case, the left over candidates from SC, ST and OBC has been sought to be accommodated in OC category, whereas same was not at all permissible in law and in view of this, the decision taken by the Learned Single Judge is rightful one and no interference is required to be made by this Court in the facts of present case.
Shri Pankaj Saksena, Advocate has been permitted to intervene and address the Court.
After respective arguments have been advanced, the factual situation that is so emerging, in the present case, is that advertisement in question has been issued by the Board and the total number of vacancies of SICP and PC (PAC) and the quota under vertical reservation worked out has been as follows:-
Sub-Inspector (Civil Police) (SICP) Total number of vacancies : 3698 General Category (OC) : 1849 (50%) O.B.C. Category : 998 (27%) Schedule Caste Category : 777 (21%) Schedule Tribe Category : 74 (2%) Plantoon Commander (P.A.C.) (PC PAC) Total number of vacancies : 312 General Category (OC) : 156 (50%) O.B.C. Category : 84 (21%) Schedule Caste Category : 64 (21%) Schedule Tribe Category : 6 (2%) An instruction booklet was also provided wherein the quota meant for Special/Horizontal Reservation has been provided for as follows:
Dependent of Freedom Fighter : 2% Ex-Servicemen : 5% Women : 20% Clause 3.3 of the instruction clearly provides for the candidate selected under the special/horizontal reservation would be adjusted in the category to which they belong. The clause is extracted:
"3.3 टिप्पणी:-
(1) यदि कोई अभ्यर्थी एक से अधिक श्रेणी में आरक्षण का दावा करता है तो उसे केवल एक ही आरक्षण का लाभ मिलेगा जो उसके लिए ज्यादा लाभकारी होगा (2) {kSfrt (होरिजेंटल) आरक्षण के अधीन चयनित अभ्यर्थी जिस श्रेणी के होंगे उसे उसी श्रेणी के प्रति समायोजित किया जायेगा"
The petitioners-opposite parties, who in their turn had responded pursuant to the Advertisement, as per the scheme that has been so quoted for selection, both for SICP and PC(PAC) were required to qualify (i) Physical Standard Test (ii) Preliminary Written Test (iii) Physical Efficiency Test (PET) (iv) Main Written Examination (v) Group Discussion.
Petitioners-opposite parties claim that they have undergone the examination in question but their names did not figure in the final merit list that was initially declared on 15.03.2015 but on account of judicial intervention by means of judgement dated 29.05.2015 passed in Writ Petition No.67782/2014 (Saket Kumar vs. State of U.P. and others), the list in question was revised and final result was declared on 26.06.2015. At this juncture, as already mention above, writ petition in question has been filed and same has been allowed.
In order to appreciate the respective arguments that have been so advanced, the relevant statutory provisions holding the field, that are necessary for adjudication of the matter, are being looked into.
The State Government in exercise of power conferred under Section 46 read with Section 2 of the Police Act, 1861, has framed the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008. Rule 6 thereof provides for reservation, inter alia, in terms of Act, 1993. Rule 6 and 29 are being extracted below:
"6. Reservation.- Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other Categories shall be in accordance with the Act and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as amended from time to time, and the orders of the Government in force at the time of the recruitment. The reservation of National/State level sportsmen shall be in accordance with the Government orders in force at the time of recruitment. It is further provided that physically handicapped persons will not be eligible for police services.
29. Savings.- Nothing in these rules shall affect reservations and other concessions required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other special categories of persons in accordance with the orders of the Government issued from time to time in this regard."
The U.P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighter and Ex-Servicemen) Act, 1993 (U.P. Act 4 of 1993) provides for special horizontal reservation to three class of aspirants (i) physically handicapped persons (ii) dependants of freedom fighters (iii) ex-servicemen. The three classes have been defined in the Act, 1993. Section 3 provides the percentage of vacancies to be reserved for such class. Horizontal reservation is provided at the stage of direct recruitment. Sub section (3) would clarify that the reservations would be horizontal by making adjustment of such candidates in their respective category i.e. OC, OBC, SC, ST. Sub-clause (3) of Section 3 is extracted:-
"3.(1)...................
(2)............
(3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to [Other Backward Classes 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."
Act, 1993 does not provide reservation for women. The reservation for women candidates is provided in Government Order dated 26 February 1999, which is applicable on all posts under the State public services at the stage of direct recruitment. Said action of State Government is an affirmative State action in favour of women for providing them opportunity in the field of public employment and such affirmative State action is clearly referable to Article 15(3) of the Constitution, object whereof is to strengthen and improve the status of women. The reservation is horizontal/special reservation reserving 20% of the vacancies for women candidates. The principle and methodology for women reservation was reiterated in the subsequent Government Order dated 9 January 2007, clarifying (i) women would mean women resident/domicile of Uttar Pradesh, (ii) 'public service' would mean service defined in Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994.
On conjoint reading of the Government Orders, the inevitable conclusion is as follows:
(i) reservation for women is horizontal/special in nature;
(ii) women candidates would have to be adjusted in their respective category to which they belong;
(iii) women selected on merit would be counted against the number of vacancies reserved for women;
(iv) there being no concept of carry forward of unfulfilled vacancies for future selection, therefore, shortfall of women candidates would have to be filled by that many male candidates.
However, in respect of other class of special reservation as provided for under U.P. Act No.4 of 1993 i.e. for dependent of freedom fighters, ex-servicemen and handicapped persons, on non-availability of suitable candidates, unfulfilled vacancies would have to be carried forward for two subsequent selections. The principle of adjustment is, however, same i.e. the candidates shall be adjusted in the category to which they belong. Sub section (5) of Section 3 of Act, 1993 is extracted:
"(5) Where due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried forward for further two selection years, whereafter it may be treated to be lapsed.
Before proceeding to consider the matter on merits, after considering the statutory provisions holding the field, what is true purport and meaning of horizontal reservation and in what way and manner it is different from vertical reservation has to be under understood keeping in view the consideration made by Apex Court from time to time. Apex court in the case of Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217 has proceeded to explain the principles of horizontal reservation as follows:
". . . . .all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations.' The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes ((under Article 16(4)) may be called vertical reservations whereas reservations in favour of physically handicapped (under Cl. (1) of Art. 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 Cl. (1) of Art. 16. The persons selected against the quota 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."
In the State of U.P. various special provisions of reservation as contrasted from social reservation under Article 16 (4) of the Constitution of India have been made as already discussed in the earlier part of judgement. The method of implementing the special reservation which is horizontal in nature, cutting across vertical reservation has been subject matter of consideration before Apex Court once again in the case of Anil Kumar Gupta vs. State of U.P., 1995 (5) SCc 173. Paragraphs 14 to 18 of the said judgment being relevant are quoted below:
"14. The question is which of the above interpretations is the correct one having regard to the language employed in the concerned notifications.
15. On a careful consideration of the revised notification of December 17, 1994 and the aforementioned corrigendum issued by the Lucknow University, we are of the opinion that in view of the ambiguous language employed therein, it is not possible to give a definite answer to the question whether the horizontal reservations are overall reservations or compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. Quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. And S.T. will not be altered.
16.Now coming to the revised notification of December 17, 1994, it says that "horizontal reservation be granted in all medical colleges on total seats of all the courses....". These words are being interpreted in two different ways by the parties; one says it is over-all reservation while other says it is compartmentalized. Paragraph 2 says that the candidates selected under the aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled Tribes/ Other Backward Classes/General to which they belong. For example, if a candidate dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he will be adjusted against the seat reserved for Scheduled Castes". This is sought to be read by the petitioners as affirming that it is a case of compartmentalized reservation. May be or may not be. It appears that while issuing the said notification, the Government was not conscious of the distinction between overall horizontal reservation and compartmentalized horizontal reservation. At any rate, it may not have had in its contemplation the situation like the one which has arisen now. This is probably the reason that this aspect has not been stated in clear terms.
17. It would have been better - and the respondents may note this for their future guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that the Uttar Pradesh Government was not aware of this distinction between "overall horizontal reservation", since it appears from the judgment in Swati Gupta that in the first notification issued by the Government of Uttar Pradesh on May 17, 1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalized horizontal reservation". We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are compartmentalized in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., O.B.C. And O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out herein above, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C. Category alone - and none from the O.B.C. or for that matter, from S.C. Or S.T. It can well happen the other way also in a given year.
18.Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. And S.T. quotas). The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. Quota."
In the said judgment quoted above concept of horizontal reservation and compartmentalized reservation has been noticed in detail and it has been clearly ruled that in future horizontal reservation should be compartmentalized to avoid complication in future and if it is not done there is always possibility of one or other vertical reservation category suffering, as has happened in the case on hand.
Both these judgements have been dealt with by the Apex Court once again in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others reported in AIR, 2007 SC 3127 and view taken has been that horizontal reservation is special reservation in consonance with the mandate of Article 15(3) of the Constitution of India wherein women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Relevant extract of the said judgment is as follows:
"4. Rule 9(3) of the Rajasthan Judicial Service Rules, 1955 ('Rules' for short) which is relevant, reads as follows :
"Reservation for women candidates shall be 20% category-wise in the direct recruitment. In the event of non-availability of the eligible and suitable women candidates in a particular year, the vacancies so reserved for them shall be filled in accordance with the normal procedure and such vacancies shall not be carried forward to the subsequent year and the reservation treated as horizontal reservation, i.e. the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs."
5. Before examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney v. Union of India (1992 Supp (3) SCC 217), the principle of horizontal reservation was explained thus (para 812) : 1992 AIR SCW 3682 ". . . . .all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations.' The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes ((under Article 16(4)) may be called vertical reservations whereas reservations in favour of physically handicapped (under Cl. (1) of Art. 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 Cl. (1) of Art. 16. The persons selected against the quota 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."
A special provision for women made under Art. 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Art. 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P. (1995 (5) SCC 173) thus :
". . . . . . . .The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e. S.C., S.T. and B.C.; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent. in favour of special categories, overall, may be satisfied or may not be satisfied.) (Emphasis supplied) We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : "For SC : 30 posts, of which 9 posts are for women." We find that many a time this is wrongly described thus : "For SC : 21 posts for men and 9 posts for women, in all 30 posts." Obviously, there is, and there can be, no reservation category of 'male' or 'men.' 7-8 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 Art. 16(4) are 'vertical reservations.' Special reservations in favour of physically handicapped, women etc., under Art. 16(1) or 15(3) are 'horizontal reservations.' Where a vertical reservation is made in favour of a backward class under Art. 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 (supra); R. K. Sabharwal v. State of Punjab (1995 (2) SCC 745); Union of India v. Virpal Singh Chauvan (1995 (6) SCC 684) and Ritesh R. Sah v. Dr. 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 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. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two women 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 women SC candidates. (But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC women' have been selected in excess of the prescribed internal quota of four.)
9. 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 women candidates, which was equal to the quota for 'General Category - Women.' There was thus no need for any further selection of woman candidates under the special reservation for women. But what RPSC did was to take only the first 48 candidates in the order of merit (which contained 11 women) and thereafter, fill the next 11 posts under the general category with woman candidates. As a result, we find that among 59 general category candidates in all 22 women have been selected consisting of eleven women 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. No. 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.
10. 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 women candidates. Thereafter, another five women were selected under the category of 'OBC - Women,' instead of adding only two which was the shorfall. Thus there were in all 8 women candidates, among the 24 OBC candidates found in the Selection List. The proper course was to list 24 OBC candidates as per the merit and then find out number of woman candidates among them, and only fill the shortfall to make up the quota for five for woman."
Said judgements have again been followed by Apex Court in the case of Public Service Commission Uttaranchal Vs. Mamta Bisht & others reported in AIR 2010 SC 2613. Relevant paragraphs 13 and 14 are being extracted below:
"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 Vs. Rajasthan Public Service Commission & Ors. AIR 2007 SC 3127, wherein dealing with a similar issue this Court held as under:
"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 and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr.Y.L. Yamul.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women." (Emphasis added)
14. In view of the above, it is evident that the judgement and order of the High Court is not in consonance with law laid down by this Court in Rajesh Kumar Daria (supra). The judgement and order impugned herein is liable to be set aside and all consequential orders become unenforceable and inconsequential." "
On the parameters of the provisions quoted above and on the parameters of the judicial pronouncement of the Apex Court, it has to be seen, in the facts of the case, as to whether in the present case Learned Single Judge is right in arriving to the conclusion that Horizontal Reservation has not at all been correctly applied and thus a situation has been created where percentage of reservation has gone beyond the 50% limit provided for.
The answer to the issue will have to be traced within the parameters of the statutory provisions that holds the field and the guidelines that have been prescribed by the Apex Court and what we find, in the present case, is that special reservation for women has been provided for to the extent of 20%.
In the case of Indra Sawhney (supra) while dealing with reservation, Apex Court observed in paragraph 836 as follows:
"It cannot be ignored that the very idea of reservation implies selection of less meritorious person. At the same time, we must recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed"
Here against 20% of the post advertised representation of women has to be there and they are required to be offered appointment under special reservation category. The fact and figure that is emanating, in the present case, is that out of 3698 SICP posts, 20% is reserved for woman candidate i.e. 740 woman candidates, if available, and such women candidates are to be adjusted horizontally. In the selection made only 261 women candidates could make up of which 19 women (9 OC and 10 OBC) made it to the select list on merit. Remaining 242 women candidates, who otherwise could not make place for themselves on merit, were required to be adjusted in their respective category.
Entire emphasis is on the fact that State has done no wrong by giving preference to the merit inter-se women category candidates, inasmuch as, biologically every women is the same and 20% reservation is required for women and in view of this, the women from any category could be adjusted in OC category and in view of this, the exercise that has been so undertaken by the Board cannot be said to be actuated with any malice rather intent was to see and ensure that merit was also given due weightage while giving preference to women under Horizontal Reservation.
The arguments that have been so advanced on behalf of State and also supported by private appellants is running totally counter to the scheme of things provided for, for the simple reason that as far as Horizontal Reservation is concerned, principal of application of the Horizontal Reservation is different and distinct from the principle of application as is applicable to Vertical Reservation. Special Reservation provided to women, ex-servicemen etc. are under Article 15(3) and 16(1) of the Constitution and are known as Horizontal Reservation. Horizontal Reservation cuts across Vertical Reservation and is commonly called interlocking reservation. The incumbents selected against Special reservation are required to be adjusted and adjustment exercise is to be undertaken by adjusting open completion (OC) category candidate in open category seat and likewise if incumbent belongs to OBC category, by making adjustment and similar would be the position vis-a-vis SC/ST category candidate also. Such adjustment, the fact of the matter is that even after application of horizontal reservation, the percentage in favour of OBC, SC, ST would remain the same and would not exceed 50% reservation which is maximum. The requirement is that the person/candidate selected under the women quota would be placed in appropriate category i.e. if the women belongs to SC/ST/OBC category, then she would be placed under that quota by making necessary adjustments, similarly, if she belongs to open category, she would be placed in the open category. Same set of procedure has to be adhered in the matter of application of other class of beneficiaries of Horizontal reservation.
The arguments that have been advanced on behalf of State and private appellant with all vehemence that women candidates irrespective of their social class i.e. SC/ST/OBC are entitled to make place for themselves in an open category on their inter-se merit clearly gives an impression to us that State of U.P and its agents/servants and even the private appellants are totally unaware of the distinction that has been time and again reiterated in between vertical reservation and horizontal reservation and the way and manner in which the provision has to be pressed and brought into play. Vertical Reservation gives due importance to merit, inasmuch as, 50% of the seat is meant to be filled up by way of merit and 50% of the seats are to be filled up on merit from amongst candidates and in case any candidate from OBC/SC/ST category, proceeds to make place for himself of herself on merit, then their selection would not be treated under OBC/SC/ST category, but such principles cannot be pressed into service while applying the principle of Horizontal Reservation, inasmuch that cuts across vertical reservation and the dominant consideration is to create balance that 50% reservation quota does not exceed and further rights of candidates are not defeated on merit.
While applying the principle of Horizontal Reservation, category has a role to play as at the point of time when Horizontal Reservation is to be pressed, then based on merit candidates in question are to be adjusted in their respective category and the male candidates, who are at the bottom of the list as per the merit, will have to make place for women candidate. A candidate, who has proceeded to make an application for the purposes of Horizontal Reservation under the OBC/SC/ST category, cannot be permitted to change his/her category, whereas in Vertical Reservation once your are selected, on merit, such a change is permissible by operation of law and in view of this, once such is the factual situation that is so emerging that all the candidates once they have specified their category in reference of Special Reservation, then they have to be adjusted in their respective categories and the reserve category candidate cannot ask for placement against open category by claiming that they have higher merit, inasmuch as, only in the matter of Vertical Reservation, merit has a role to play wherein the list is finalized but at the point of time when for providing Horizontal Reservation adjustment is to be made, then various adjustments is required to be done as per the formula that has been approved and ratified by the Apex Court that in the matter of horizontal reservation, adjustment would be made by making appropriate placement in appropriate categories. Apex Court was conscious of this fact, that such a provision may be subjected to misuse and accordingly, position was sought to be clarified by giving examples and then providing that if horizontal reservation is not satisfied, the requisite number of special reservation candidate has to be taken and accommodated/adjusted against their respective social reservation categories. Sub-section (3) of Section 3 of U.P. Act No.4 of 1993 provides for horizontal reservation to be applied accordingly, Application of horizontal reservation in this prescribed manner maintains the merit of special reservation quota candidate alongwith their representation in service, in view of this, the Learned Single Judge is absolutely right at the point of time when he has proceeded to criticise the State Government for taking such a stand and for adhering to a procedure that was not at all prescribed in law and thus crossing the limit of reservation of 50%, in view of this, the order passed by Learned Single Judge does not deserve interference on this aspect of the matter. The category wise social breakup of 261 women candidates is as under:
1. Open Category : 69+9 (selected on merit) =78;
2. OBC category : 163+10 (selected on merit)= 173
3. SC= 10
4. ST =Nil In the open category, 78 women candidates were to be accommodated, 9 were already in the select list, therefore, 69 women candidates were required to be adjusted in the open category. Similarly, 173 women candidates belonging to the OBC category were available, of which 10 women candidates were selected on merit, therefore, 169 remaining women candidates were to be adjusted in OBC category by dislodging that many number of male candidates from bottom of the select list of OBC category. Similarly, 10 women belonging to SC category were to be adjusted under the SC category.
Such procedure ought to have been adhered to but for the reasons best known to State Appellant, they have left the known route specified by the orders of Apex Court in the judgement noted above and as understood in Government Order dated 17.12.1994, 25.02.1999 and 09.02.2007 and has chosen to adhere to such route that is no at all subscribed in the matter of application of horizontal reservation. The judgement in the case of Smt. Medha Shetty vs. State of Rajasthan, Civil Special Appeal (W) No.170 of 2013 is not at all being approved of by us keeping in view the binding precedents of Apex Court qua the applicability of horizontal reservation and statutory provision and the Government Orders issued from time to time as already mentioned by the State. Directives issued by learned Single Judge are strictly in consonance with the parameters settled by Apex Court while dealing with adjustments to be made in the matter of horizontal reservation and the spirit of statutory provision and Government Order issued from time to time.
Much assertion has been made that it would be practically impossible to implement and give effect to the judgement.
Appellants are labouring under misconception, inasmuch as, as far as the application of Horizontal Reservation is concerned, it has to be applied as per its spirit and then the consequence are required to be seen and on mere apprehension, the view point of learned Single Judge cannot be non suited.
Lastly, coming to the issue of stricture that has been so passed against learned Advocate General and the higher officials of the State.
Suffice is to mention that even without commenting on their conduct, the case in question could have been decided. It may be true that arguments advanced on behalf of State may not be finding favour of the Court but that does not ipso facto mean that same invites stricture, inasmuch as, the State has every right to defend its action and it is for the Courts to take a final call as to whether the stand taken is correct or incorrect.
In the facts of the present case what we find that strictures have been given to learned Advocate General and the Senior Officials of the State of U.P. whereas Superior Officials were not impleaded in person.
The law on the subject is clear that such strictures should be avoided. See Om Prakash Chautala vs. Kanwar Bhan 2014 (5) SCC 417, wherein following parameters have been laid down:
"12. At this juncture, it may be clearly stated that singularly on the basis of the aforesaid principle the disparaging remarks and directions, which are going to be referred to hereinafter, deserve to be annulled but we also think it seemly to advert to the facet whether the remarks were really necessary to render the decision by the learned single Judge and the finding recorded by the Division Bench that the observations are based on the material on record and they do not cause any prejudice, are legally sustainable. As far as finding of the Division Bench is concerned that they are based on materials brought on record is absolutely unjustified in view of the following principles laid down in Mohammad Naim (supra): -
"It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct."
Consequently, in the present case it was not at all required to pass stricture and comment upon learned Advocate General and the State functionaries as they may be acting on the dictates of their political masters as observed by learned Single Judge and in view of this, the strictures made in the order dated 16.03.2016 against the Advocate General and other State Officers/Officials are quashed and will not form part of record. The other part of the order passed by learned Single Judge be complied with forthwith.
With these, both the Special Appeals are partly allowed.
Order Date :-29.07.2016 A. Pandey