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6 The petitioners contend that the stand taken by the MPSC is fundamentally wrong and is not in consonance with the interpretation put to the principles of reservation under the Constitutional scheme.

{12} wp415918-3.odt 7 Writ Petition No.6578 of 2018 is presented by the candidates belonging to open category to support precisely the stand taken by the MPSC in the affidavit-in-reply presented in Writ Petition No.4159 of 2018 and oppose claim raised by petitioners in said petition. According to petitioners herein, in case of compartmentalized horizontal reservation, no migration from one category to another category is permissible and as such, even if a candidate belonging to reserved category, who does not claim any benefit of reservation and is desirous of competing as a general category candidate, cannot be permitted to migrate and claim a seat/post available for the open category. 8 In Writ Petition No.10837 of 2018, an objection is raised to the Standing Order No.06 of 2014, dated 23.09.2014, issued by the MPSC in respect of prescription of reservation for women and sportsmen category candidates. Clause 6 of the Standing Order records that the backward class candidates not claiming any benefits available for reserved category, will not be entitled to raise a claim in respect of the posts prescribed for open horizontal reservation category. It is contended that the condition recorded in the Standing Order is in breach of the Constitutional provisions and as such, deserves to be struck down.

17 The learned Advocate General submits that in case if the 'horizontal' reservations are specifically provided in a 'compartmentalized' manner i.e. providing fixed number or fixed percentage of seats, for the specific vertical reservation (s), then the same is not interchangeable or inter-transferable. 18 He also submits that however, even in case of 'compartmentalized' horizontal reservations, seats that are allotted to the open category or quota, can be claimed by everybody and anybody who is entitled to basically claim a seat or post as the case may be, from the open category, which will obviously and of course, include each and every candidate, from the merit list of the open category i.e. all the candidates even belonging to any reserved {19} wp415918-3.odt category whichever, vertical or horizontal. 19 He also submits that the only exception to the aforesaid rule now carved out by the Hon'ble Supreme Court is that, if the applicable Rules or advertisement specifically provides to the contrary, such migration shall not be permitted, from the reserved category to the open category, for claiming 'compartmentalized' horizontal reservation provided for open category. Thus, if it is specifically provided by the Rules or the advertisement that, a person who has already enjoyed any benefit during the process of selection, such as concession in fees, relaxation of age, etc., as a reserved category candidate, then he or she shall not be entitled to the benefit of migration from the reserved category to open category for claiming seat or post, as the case may be, meant for open category in case of a 'compartmentalized' horizontal reservation. 20 Shri Katneshwarkar, learned Counsel appearing for the petitioners in W.P.No.6578 of 2018, contends that there can be no dispute if a candidate from any category applies from open category, he or she can be given placement in open category as per his or her merit. There is no controversy involved as regards {20} wp415918-3.odt migration in vertical reservation because a candidate applying from social backward category can migrate in open category in accordance with his or her individual merit. However, it is contended that the rule of migration is not applicable in compartmentalized horizontal reservation and if migration is allowed in compartmentalized horizontal reservation, then there will be violation of Article 14 and Article 16(1) of the Constitution of India.

49 In view of the foregoing discussion, we are of the considered opinion that the candidates belonging to SC/ST/BC, who had taken relaxation of age, were not entitled to be migrated to the unreserved vacancies; the State of Rajasthan has migrated such candidates who have taken concession of age against the unreserved vacancies which resulted displacement of a large number of candidates who were entitled to be selected against the unreserved category vacancies. The candidates belonging to unreserved category who could not be appointed due to migration of candidates belonging to SC/ST/BC were clearly entitled for appointment which was denied to them on the basis of the above illegal interpretation put by the State. We, however, also take notice of the fact that the reserved category candidates who had taken benefit of age relaxation and were migrated on the unreserved category candidates, are working for more than last five years. The reserved category candidates who were appointed on migration against unreserved vacancies are not at fault in any manner. Hence, {37} wp415918-3.odt we are of the opinion that SC/ST/BC candidates who have been so migrated in reserved vacancies and appointed, should not be displaced and allowed to continue in respective posts. On the other hand, the unreserved candidates who could not be appointed due to the above illegal migration are also entitled for appointment as per their merit. The equities have to be adjusted by this Court."

41 In the matter of Sangita Gopal Chaudhari Vs. The State of Maharashtra & others (Writ Petition No.8481 of 2018, decided by the Division Bench, the petitioner therein, belonging to reserved category, had specifically applied from open category and did not claim benefits of reservation. The issue in respect of shifting from reserved category to open category, therefore, was not considered and she was held to be entitled to claim benefit of migration.

42 The petitioner in Writ Petition No.5397 of 2016, decided by the Division Bench of this Court at Mumbai on 23.01.2019, was a candidate belonging to N.T. "C" category. However, in the application form for the post of Assistant Commissioner/Project Officer Grade-II, Group-B. She stated that her application may be considered from open category and also paid fees prescribed for open category candidates. She was not permitted to compete from the open women category and the {41} wp415918-3.odt challenge raised by her to the decision of MPSC has been turned down by the Maharashtra Administrative Tribunal. The Division Bench, referring to the earlier judgment in the matter of Kanchan Vishwanath Jagtap (supra) and also referring to the Constitution Bench judgment in the matter of Indra Sawhney (supra), has observed that since the petitioner is meritorious and has opted to be considered from open category, she cannot be denied an opportunity to compete. The earlier judgment of the Division Bench in the matter of State of Maharashtra Vs. Irfan Mustafa Shaikh and others (Writ Petition No.272 of 2010, decided on 15.11.2010), was considered and the Court has observed that it cannot be treated as ratio decidendi. On the contrary, the view taken by the Division Bench in the matters of Asha Ramnath Gholap and Kanchan Vishwanath Jagtap (supra) has been approved to be a correct view and is relied upon. 43 There is no dispute, according to Shri Katneshwarkar, learned Counsel appearing for petitioners in Writ Petition No.6578 of 2018, that if any candidate from reserved category tenders application from the open category, he/she may be considered and given placement in open category in accordance with his/her individual merit. There is no controversy in respect of migration of {42} wp415918-3.odt candidate from one category to another category in case of vertical reservation since a candidate applying from social reservation category can migrate in open category in accordance with his individual merit.