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"The board further discussed the matter of filling up the posts of three process servers in this establishment. The process of recruitment for the same was completed earlier and that earlier board prepared a list of eight candidates for filling up of the said posts. As per advertisement issued for filling of three posts of process servers, one post was reserved for OBC/MOBC category, one post was for unreserved category and one post was from among EWS category. The board further noted that there are 16 sanctioned posts of grade IV employees in this establishment and as per Government notification, 30% of such posts to be filled from women category. As such there are five posts reserved for women in this establishment. The board took note that at present there are four grade IV employees who are women are working in this establishment and thus the board views that remaining one to be filled from women. The board, after discussions, is also of the view that one candidate be kept reserved in wait list against each category on the basis of merit cum seniority."

17. The learned Standing Counsel further submitted that the resolution so adopted on 01.02.2024 would show that in the category of peon posts, the Act of 2005 was applied and as against 11 posts, three women were selected from the unreserved category. In respect to the Chowkidar post, one woman was selected against the two posts. Therefore, in respect to the Process Server post, one woman had to be selected, else it would lead to violation of the Act of 2005. He, therefore submitted that applying the formula as approved by the Supreme Court in the case of Saurav Yadav -Vs- State of UP; reported in (2021) 4 SCC 542, the respondent No. 5, who was otherwise a general candidate, but having obtained the highest marks amongst the women candidates to the post of Process Server, was appointed against the post reserved for EWS.

22. This Court further takes note of the resolutions so placed before this Page No.# 14/21 Court, during the course of the hearing, and from a perusal of the said resolutions, it appears that the establishment of the respondent No. 3, contemporaneously, were carrying out selection process, in respect to posts of peon, chowkidar and Process Server, in total, 16 (sixteen) posts. Basing on the posts advertised, i.e., 16 (sixteen) posts, the reservation in the EWS category, came to 1.6 or roughly 2 (two). Basing upon the mandate of the Act of 2005, against the 16 (sixteen) posts, 30% of the reservation for woman would be 4.8 or 5. While these selection proceedings were going on, contemporaneously, as would be apparent from the resolution above referred to, it would be seen that for the unreserved category, 3 (three) women candidates were selected as against 11 (eleven) posts of peon. In so far as the post of Chowkidar, one woman candidate was selected as against two posts of peon. The posts which were filled up by applying the reservation of 30% under the Act of 2005, for the post of peon and Chowkidar, were from unreserved category. However, taking into account that there was a necessity of having an additional post to be selected from the women, in terms with the Act of 2005, the respondent authorities selected one of the women against the three posts of Process Server, which were in three different categories of unreserved, OBC/MOBC and EWS. The justification so given in the affidavit filed by the respondent Nos. 2 and 3, is that one candidate had to be selected in the post of Process Server for the women category, from the women quota, and the respondent No. 5, having secured the highest marks amongst all the women candidates, she was selected, as against the EWS category. Now, the question arises, as to whether the selection from the EWS category by the concerned respondent authorities violates the mandate of Article 14 and Article 16 of the Constitution of India, inasmuch, such a decision was taken later on, on 03.06.2024. In this regard, Page No.# 15/21 this Court finds it relevant to take note of how the horizontal reservation is to be implemented, as has approved by the Supreme Court in the case of Saurav Yadav (supra). Paragraph 23.11 and Paragraph 43 being relevant are reproduced hereinunder:-

24. In the instant case, against the 16 (sixteen) posts of peon, Chowkidar, and Process Server, 9 (nine) posts were in the unreserved category; 2 (two) posts were in the EWS category; 4 (four) posts were against the OBC/MOBC category; 1 (one) post was against the Scheduled Castes category; 1 (one) post against the Scheduled Tribes (Plains) category. Therefore, appointing another woman candidate from the General category would disturb the mandate as stipulated in the schedule to the Rules of 2005, inasmuch, as 4 women candidates have already been appointed against 9 general category posts. However, further to that, the respondent No. 5, who had secured highest marks amongst the women in the Process Server post, cannot be selected against the OBC/MOBC post. Under such circumstances, the only manner in which the respondent Nos. 2 and 3, can abide by the mandate of the Act of 2005, was to adjust the respondent No. 5 against the EWS category.