UDAY UMESH LALIT,J. - (1.) This Miscellaneous Application has been preferred by Ms. Sonam Tomar and Ms. Reeta Rani who had participated in the Selection Process initiated for filling up posts of Constables in U.P. Police and secured 276.5949 and 233.1908 marks respectively. They had applied in the categories of OBC-Female and SC-Female respectively.
(2.) It is submitted by them that their claim has been rejected by the State Government despite directions issued by this Court in its Order dated 24.07.2019 in LA. No.10394 of 2018 (Ashish Kumar Yadav and Others vs. State of Uttar Pradesh and Others) and that candidates with lower marks have been selected in General Female category disregarding their claim.
(3.) The basic facts relevant for the purposes of this Miscellaneous Application, as stated in said order dated 24.07.2019 are as under: - "In the year 2013, selection process was undertaken to fill up 41,610 posts of Police Constables [U.P. Civil Police/Provincial Armed Constabulary (PAC)/Fireman]). After the requisite examination, results were declared on 16.07.2015, in which 38315 candidates were successful. Thus, as on that date there were 3295 vacancies which were not filled as no suitable candidates were available. It must be mentioned that the process for selecting Sub-Inspectors in U.P. Police was going on simultaneously and in a challenge raised in respect of said process, the High Court of Judicature at Allahabad vide its order dated 29.05.2015 in the case of Saket Kumar and Ors. vs. State of U.P. and 2 Ors.[1] directed that the candidates who had used blades and whiteners while answering the answer papers of the main examination were disqualified and their names be deleted from the selection list. The matter was carried in appeal before this Court and by its decision dated 19.01.2016 (Hanuman Dutt Shukla and Ors. vs. State of UP and Others, (2018) 16 SCC 447), it was ruled that those who had used blades and whiteners ought not to have been disqualified. However, by that time, the process of selection had gone ahead with re-working of the seniority list in terms of the order passed in Saket Kumar (supra). This Court, therefore, observed that those candidates who were selected as a result of directions in Saket Kumar (supra) should not be thrown out from the process of selection but the candidates who had used the blades and whiteners should be given the advantage or benefit in a notional selection. In other words, the selection list was ordered to be reworked and in case the candidates who had used blades and whiteners were now found to be part of the selection list, they be given appropriate advantage including selection to the posts in question. It was also directed that though logically equal number of candidates must be displaced from the original list of selection, since those persons had already undergone training and some of them had joined the posts, those candidates ought not to be thrown out of service. This Court also directed that in the process, the additional number of candidates who were selected over and above the normal selection should be reckoned as against additional posts and should not be taken to be part of the original posts for selection. The principle so devised in HD Shukla (supra) was then adopted in the process of selection for Police Constables which was going on simultaneously and consequently the selection list was reworked. Thus all the candidates who had used blades and whiteners were considered in the process of selection and some of them did get selected. In the re-working of the selection list 4429 candidates were given advantage or benefit in terms of the law declared in Hanuman Dutt Shukla (supra) which is to say those 4429 candidates would be taken as additional appointments over and above the number of posts for which selection was undertaken. In its judgment dated 16.03.2016 [Ashish Kr. Pandey and 24 others vs. State of U.P. and 29 Others[2]], the High Court of Judicature at Allahabad observed that horizontal reservation was not properly worked and as such the State was directed to undertake the process of re-calculating horizontal reservation vacancies afresh. This case was also in relation to the process of selection for Sub-Inspectors. Around same time, another decision was rendered by the High Court in Manoj Kr. and Others, 2017 SCC OnLine ALL 2759 adopting the principle in Ashish Kr. Pandey (supra) in selection process for Constables. On 4.5.2018, a decision was rendered by the High Court of Judicature at Allahabad in Upendra and others vs. State of U.P. and Others[3] wherein challenge was raised to certain provisions of the Reservation Act. It was submitted that going by the concept of horizontal reservation, it would not be possible to carry forward the vacancies to the next selection, in case the appropriate number of candidates for horizontal reservation were not available. The High Court accepted the plea and directed that there shall not be any carry-forward of vacancies of horizontal reservation to the next selection. Thus the matter was clear that in case appropriate number of candidates for filling up seats meant for horizontal reservation were not available, there would not be any carry forward of such vacancies. The order shows that about 2312 vacancies were not filled up by the State adopting the idea of carry forward principle in horizontal reservation. Therefore, as a result of the directions issued by the High Court in Upendra's case, 2312 vacancies must enure to the advantage of the candidates concerning the present selection process itself. It is accepted by the learned counsel for the State that the State did not undertake any process of selection in respect of those 2312 vacancies. It is also accepted that apart from these 2312 vacancies, there are still 982 vacancies to be filled up in the original selection." [1] Writ A. No.67782 of 2014, (2015 SCC OnLine All 1250) [2] Writ A. No.37599 of 2015 (2016 SCC OnLine ALL 187) [3] Writ C. No.3417 of 2016; 2018 (7) ADJ 37 In the circumstances this Court directed the State to complete the process of selection in respect of 2312 + 982 vacancies in accordance with law. It was also directed that the principle of reservation would be followed while filling up these vacancies and that the State would adhere to the required minimum qualifying marks as devised during the process of selection and consider all eligible candidates in accordance with merit. It was also declared: - "It is clarified that no candidate shall be excluded from the selection process merely because he had used blade or whitener. In case his merit position otherwise demands and entitles him to be selected, no prejudice shall be caused to him merely for the use of blade and whitener." ;