- (1.) BY the Court.-The petitioner - appellant (hereinafter referred to as the 'appellant') has filed this appeal against the order of dismissal of the writ petition filed by him, wherein the prayer made by the appellant was to quash the final result dated 17th May, 2010 of the selections in relation to the posts of Police Constables in Uttar Pradesh Police. The contention raised by the appellant was rejected on the ground that the appellant, being a candidate of Other Backward Class, has secured lesser marks than the minimum cut-off marks fixed for the said category and, therefore, no relief can be granted.
(2.) SHRI Hari Om Khare, learned counsel for the appellant, submits that the learned Single Judge did not appreciate the controversy in correct perspective, inasmuch as the selections have been held by applying the provisions of vertical and horizontal reservations in a way that prejudices the candidature of the appellant as against the lesser meritorious candidates of the female category. He submits that, in order to accommodate female category candidates, results have been prepared in a way that contravenes the maximum permissible limit of 20 percent reservation for women category-wise, which aspect has been completely overlooked by the learned Single Judge and, hence, the impugned order is liable to be set aside and the writ petition deserves to.be allowed. The appeal was entertained and the learned Standing Counsel was called upon to obtain instructions with regard to the aforesaid issues raised on behalf of the appellant, as taken in Ground No, 13 of the appeal, which is as follows : "(13) BECAUSE according to the terms and conditions of Advertisement, 27% seats for O.B.C. category are reserved out of total 35000 total seats, which comes 9450 seats in which 20% seats are reserved for female O.B.C. Candidates, thus total Female OBC seats comes 1890 but only 2744 female O.B.C. candidates have been selected which is beyond the conditions of the Advertisement and as such the respondents have wrongly and illegally selected 854 extra Female Constables, due to which the Cut-off Marks of O.B.C. Male candidates upheld to the extent of 111.9517 and if the respondents would have selected only 1890 Female O.B.C. candidates then Cut-off Marks must become beneath 111.9517 and the appellant would have been selected but Hon'ble Single Judge has not looked into the matter properly and dismissed the writ petition ignoring the same." A short counter-affidavit has been filed by one Habibul Hasan on behalf of respondent No. 2, wherein it has been stated that the horizontal reservation meant for female category candidates has been applied on overall basis by cumulatively taking into account all the 35000 posts advertised and, hence, according to the said calculation, 7000 posts stand reserved for females candidates out of said vacancies. On the strength of such calculation, it is contended on behalf of the respondents, that the selections, which have been made of 5345 female candidates, is still less than the permissible limit of 20 percent. A chart has been prepared disclosing the vertical and the horizontal reservations, as indicated in the communication dated 17th May, 2010, which is part of the record. The said chart indicates that, as per vertical reservation, 9450 candidates are to be accommodated from the Other Backward Class category, in which the appellant has claimed his entitlement. This includes both male and female candidates. Applying 20 percent horizontal reservation for female category candidates, the figure comes to 1890. From a perusal of the horizontal reservation chart, as disclosed in the said document of the respondents, it is evident that 2744 candidates of female category of Other Backward Class have been selected.
(3.) A rejoinder affidavit has been filed by the appellant contending that from the own showing of the respondents, 854 extra female candidates of Other Backward Class have been selected instead of 1890 as per the reservation provided thereby edging out meritorious candidates like the appellant. Learned counsel for the appellant has also invited the attention of the Court to paragraphs 7 and 9 of the judgment of the Supreme Court in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission and others, (2007) 8 SCC 785, which read as under : "7. A 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 U.P., thus : (SCC p.185, para 18) "The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; 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 compartmentalised 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 per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)" (emphasis supplied) 9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Glass, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, there number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L Yamul). But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates, among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example: If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)" On the strength of the aforesaid judgment, it is urged on behalf of the appellant, that the learned Single Judge, without examining the aforesaid aspect of the matter, committed an error by proceeding to dismiss the writ petition.;