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15. Mr. K. Parameshwar, learned counsel: Learned counsel submitted that challenging the Office Memorandum dated 12.10.2014 issued by the UP Public Service Commission and also the selection process and the final selection list, number of writ petitions were filed and the appellants have challenged the judgment in the lead case in WP (C) No.34196 of 2015 and in the other writ petitions viz. WP(C) No.38399/2015, WP(C)No.45822/2015, WP(C) No.47894/2015, WP(C) No.50878/2015 and SPLAD No.283/2016 and the appellants have not chosen to challenge the judgment passed in number of other writ petitions remaining unchallenged and operate as res judicata. In support of his contention, learned counsel placed reliance upon Sri Gangai Vinayagar Temple and Another v. Meenakashi Ammal and Others (2015) 3 SCC 624. Insofar as horizontal reservation, the learned counsel further submitted that wherever the candidates for horizontal reservation were not available, they were filled up with the candidates with the vertical reservation which is not in accordance with law and the consistent view taken by the Supreme Court. The learned counsel submitted that considering number of irregularities in the selection process, the High Court rightly set aside the selection process subsequent to the stage of declaration of written examination and the impugned judgment warrants no interference.

Unfilled vacancies of Horizontal Reservation filled by candidates of vertical reservation

56. Contention of the private respondents is that as per the statutory requirement, the horizontal reserved vacancies were unfilled and those unfilled vacancies of horizontal category were filled by vertical reservation candidates/other category candidates, which is in violation of the statutory provisions vitiating the selection process. On behalf of the UP Public Service Commission, Mr. Shrish Kumar Misra, learned counsel has furnished the details as to the number of vacancies reserved for horizontal category and the number of candidates found suitable and placed in the respective categories. The said details are as under:- 

                Category               No. of Vacancies No. of Selected
                                                         Candidates


      Ex-Servicemen                           330              NIL

On behalf of UP Public Service Commission, it was submitted that one of the policies of the State Government regarding horizontal reservation is that, if the suitable candidates for filling the vacancies reserved for such posts of horizontal reservation are not available and the same are not carried forward; they are filled up by other suitable candidates from amongst the candidates belonging to vertically reserved categories according to their merit. It was submitted that unfilled horizontal reservation vacancies were thus filled up by suitable candidates of respective vertical categories according to their merit which is as per the policy of the government. The High Court was not right in finding fault with the filling up of vacancies reserved for horizontal reservation with other candidates of respective vertical reservation.

“Hence, a further revision in category-wise vacancy position was made and subject to the orders of the Hon’ble High Court, the total 6628 vacancies have been sub-divided based on the reservation percentage as the result which was declared by UPPSC was exceeding the demarcated percentage in the following manner:
Available posts General Scheduled Scheduled OBC after 2% reduction (50%) Castes Tribes (27%) (21%) (2%) 6628 3316 1391 132 1789 Thereafter, the application of horizontal reservation for dependents of Freedom Fighters, Ex-Servicemen, Disabled persons and Women was proposed as follows: