K.G.BALAKRISHNAN, CJI. - (1.) THE appellant in this appeal, as also the appellants in the connected appeal, were candidates for selection to the posts of Munsiff - Magistrate, in the Rajasthan Judicial Service. Rajasthan Public Service Commission (for short 'RPSC'), entrusted with the responsibility of selection, issued an advertisement dated 17.5.2001 inviting applications for filling up 116 vacancies of Munsiff - Magistrates. THE details of the vacant posts were shown as under: JUDGEMENT_154_JT10_2007Html1.htm THE RPSC conducted the written examination followed by interviews. 261 candidates were successful. Only 97 of them could be appointed, as some vacancies earmarked for SC and ST categories could not be filled for want of suitable candidates.
(2.) THE appellant in this appeal (Rajesh Kumar Daria) and the third appellant in the connected appeal (Mohan Lal Soni) were OBC candidates. THE other five appellants in the connected appeal were general category candidates. THEy were not selected. According to them, women candidates were selected in excess of their reservation quota, contrary to the Rules. THEy contended that though the Rules provided for horizontal reservation of 20% for women category-wise, RPSC while preparing the selection list, had wrongly applied the principles of vertical reservation and had selected women in excess of the quota, thereby denying selection of the appellants and other male candidates. It was contended that they had secured higher marks than the selected women candidates and but for the excess selection of women candidates, they would have been selected. THE appellants in these appeals along with some other aggrieved candidates therefore filed W.P. No.4150/2002 seeking a declaration that the selection list dated 30.12.2001, was bad in law to the extent of excess selection of women candidates and for a consequential direction to fill those vacancies with male candidates. THEy (writ petitioners) also sought a direction that they should be appointed if it was found that they had secured the necessary marks. The said writ petition was resisted by RPSC. It contended that the process of listing the selected candidates* was in accordance with the provision for reservation. The High Court dismissed the writ petition by holding that the principles of reservation were correctly followed and applied by RPSC. The decision of the Division Bench of the High Court of Rajasthan is challenged before this Court. We have heard learned counsel for the appellants as well as learned counsel for the RPSC. Rule 9(3) of the Rajasthan Judicial Service Rules, 1955 ('Rules' for short) which is relevant, reads as follows : "Reservation for women candidates shall be 20% category-wise in the direct recruitment. In the event of non-availability of the eligible and suitable women candidates in a particular year, the vacancies so reserved for them shall be filled in accordance with the normll procedure and such vacancies shall not be carried forward to the subsequent year and the reservation treated as horizontal reservation, i.e. the reservation of women candidates shall be adjusted proportionately in the respective category to which the women candidate belongs."
(3.) BEFORE examining whether the reservation provision relating to women, had been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney v. Union of India, the principle of horizontal reservation was explained thus (Pr.812): "all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [(under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same." A special provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of UP. thus: "...The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., ST. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : "For SC : 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus : "For SC : 21 posts for men and 9 posts for women, in all 30 posts". Obviously, there is, and there can be, no reservation category of 'male' or 'men'.;