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Petitioner's contention is that this post was meant to be reserved for a unreserved category candidate and, therefore, a person belonging to scheduled caste category could not have migrated to the unreserved Category list to occupy a seat meant for unreserved Category Orthopedically handicapped person.

Shri Nikhil Bhatt in his turn submits that petitioner had secured 810 marks whereas private respondent no. 4 Shri Choukikar had secured 826 marks, therefore, in terms of the judgment of the Supreme Court in Saurav Yadav and others Vs. State of U.P. and others (2021) 4 SCC 542 , a person belonging to a reserved category being more meritorious will find place in the unreserved category list and after migration of such more meritorious candidates, horizontal reservation is to be accorded and accordingly private respondent on the basis of his own merit could migrate to the unreserved category list, and was incidentally orthopedically handicapped was given appointment under the category of Scheduled Caste orthopedically handicapped within the list of unreserved category.

Answering this, the Hon'ble Division Bench refers to another Division Bench decision in W.A. No. 414/2017 Surendra Singh Yadav Vs. State of M.P. and others and W.A. No. 940/2017 Madhya Pradesh Public Service Commission Vs. Dr. Nabhi Kishore Choudhary and others wherein the Hon'ble Division Bench has upheld the view of the Single Judge that when a reservation is horizontal, then the candidate selected on the basis of reservation in any category has to be fixed in the said category and cannot be allowed to migrate to other category. The concept of migrating from one category to another on the basis of merit may hold good in vertical reservation but in horizontal reservation, the same is not applicable.

It is provided that in case of migration from reserved to open category, vacancy in reserved category is to be filled by another person from same category and where vacancies cannot be filled by specified categories due to shortfall of candidates, vacancies are to be carried forward or dealt with appropriately by rules. In the present case, admittedly the private respondent migrated to the unreserved category list by virtue of his merit, that was a vertical movement from Scheduled Caste category to unreserved category. Once, he was allowed to migrate on the strength of vertical reservation, then in the list of unreserved category candidates after having find place, the post was required to be filled as per the category because firstly vertical reservation is completed and then horizontal reservation is to be applied. Since, respondent no. 4 on the strength of vertical reservation migrated to the list of unreserved category and when horizontal reservation was applied, he was placed in the category of orthopedically handicapped, that cannot be said to be illegal or arbitrary.