- (1.) HEARD learned counsel for applicant and Sri Pankaj Saxena, learned Standing Counsel.
(2.) THE present contempt application has been filed for alleged wilful disobedience of order dated 22.12.2006 passed in Special Appeal No. 910 of 2005 (Sanjeev Kumar Singh vs. State of U.P. and others) and Special Appeals No. 735 of 2002, 591 of 2006, 862 of 2002, 660 of 2002, 764 of 2002 and 818 of 2002.
(3.) THE matter relates to selection process of Sub -Inspectors in U.P. Police and Platoon Commander in P.A.C., for the year 1999. Applicants admittedly belong to General category. The state government incorrectly applied Government Order dated 26.02.1999 providing women reservation of 20% only to the extent of 10% and that too vertically and unfilled posts were not offered to applicants. Applicants individually and jointly filed several writ petitions claiming selection/ appointment. One such Writ Petition No. 25328 of 2001, Narendra Pratap Singh vs. Director General of Police, U.P., was dismissed, but Special Appeal no. 910 of 2005 allowed, but on appeal, the Apex Court set aside the judgment of the Division Bench. Paragraph 55 to 64 of the judgment of the Apex Court reads as under: - "55. In the appeal filed by the State of UP it was submitted that against the 67 posts of general category reserved for women only 15 qualified candidates were available. They were duly selected. 52 posts, which remained unfilled, were filled up from the male candidates in accordance with GO dated 26.02.1999. Therefore, there remained no unfilled vacancy in the general category. Therefore, the Division Bench erred in coming to the conclusion that 52 vacancies have been carried forward contrary to the aforesaid GO. It was further submitted that the learned Single Judge erred by directing the appellants to fill up the vacancy which were excluded from 2% sports quota from the aforesaid selection. According to the appellants, the advertisement clearly mentioned that the vacancies under the sports quota shall be filled separately. Therefore, the learned Single Judge was not justified in directing for filling up of these vacancies from this very selection. According to Mr. Dwivedi, the entire factual position was placed before the learned Single Judge in the counter affidavit which was duly noticed by the learned Single Judge as follows: - "In the counter affidavit the respondents have given details pertaining to the candidates belonging to different categories who were finally selected and the percentage of reservation fixed according to number of posts. According to the respondents total posts for Sub Inspector Civil Police were 1231 (male) + 148 female (ten per cent posts were referred to be reserved for women). According to the respondents the advertisement for 1634 posts was published containing 1231 male + 148 (female) Sub Inspector Civil Police and 255 Platoon Commander. It was stated that according to the police of the State 2% posts were reserved for sports men hence against 1478 posts of Sub Inspector 2% i.e. 29 posts of Sub Inspector were earmarked for sports men and five posts of Platoon Commander in sports quota. It was thus stated that 1350 posts were for Sub Inspector civil police and 250 posts were to be filled up by Platoon Commanders. The percentage of reservation against the aforesaid posts have been mentioned in paragraph 4 of the supplementary counter -affidavit which is extracted below. 1 -Posts 1350 for Sub Inspector, Civil Police Sl.No Caste/Class Percentage of reservation Male Female 10% Total 1 General Caste (Unreserved) 50% 608 67 675 2 8 Backward Class (reserved) 27% 328 37 365 3 8 Scheduled Caste (reserved) 21 % 255 28 283 4 84 Scheduled Tribe 2% 24 03 27 1005 1215 135 1350 5 Dependent of Freedom Fighters 2% 24 03 27 6. Ex -servicemen 1% 12 01 13 (2) 250 Posts for Platoon Commander, PAC Sl.No Caste/Class Percentage of reservation Male 1 General Caste (Unreserved) 50% 125 2 Backward Class (reserved) 27% 67 3 8 Scheduled Caste 21% 53 59 4 84 Scheduled Tribe 2% 05 100% 250 It has been stated in the supplementary counter affidavit that 608 male belonging to general category were selected, against 67 posts of general category for women only 15 women were available who were selected rest of 52 posts were filled up on merit from male candidates in accordance with the Government order dated 26.02.1999. It was stated that the total 675 posts in general category were filled up and no post of general category is vacant. " 56. Mr. Dwivedi further submits that the learned Single Judge took note of the averments made in paragraph 4 of the supplementary counter affidavit, and yet issued a direction to recalculate the number of posts of general category candidates by applying 2% reservation for sportsmen horizontally and adding 2% posts of sportsmen also while calculating the number of vacancy of general category candidates. Mr. Dwivedi further submits that the learned Single Judge erred in holding that the Government order dated 26.02.1999 does not specifically provide that the post which are not filled up by women candidates are to be filled up from the male candidates. The Division Bench was, therefore, justified that the aforesaid view of the learned Single Judge was apparently erroneous and inconsistent to the specific provisions contained in paragraph 4 of GO dated 26.02.1999. The Division Bench, however, committed a factual error in recording the following conclusion "we are constrained to hold that the authorities erred in law by leaving the vacancies kept for reserved women candidates unfilled instead of selecting and recommending suitable male candidates of respective category of the same selection". 57. Aggrieved against the aforesaid observations, the appellants sought review of the aforesaid judgement which has been erroneously dismissed by simply recording: - "We have head Sri G.S. Upadhyay, learned Standing counsel appearing for the applicant. It is submitted that this Court's observation at page 65 and 66 in respect of vacancies reserved for woman and sports quota which remain unfilled needs clarification. We are of the view that our judgement is clear and it does not suffer from any ambiguity and thus does not require to be clarified or recalled." 58. As noticed earlier, Mr. L.N. Rao and Dr.Dhawan had submitted that the vacancies reserved for women and for the outstanding sportsperson had to be filled by applying "horizontal reservation". No carrying forward of the vacancies was permissible. 59. We have considered the submissions made by the learned counsel. It is accepted by all the learned counsel for the parties that these vacancies had to be filled by applying the principle of horizontal reservation. This was also accepted by the learned Single Judge as well as by the Division Bench. This in consonance with the law laid down by this Court in the case of Indra Sawhney case: - "812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture; 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 this quota will be placed in the appropriate category; if he belongs to SC category he 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. This is how these reservations are worked out in several States and there is no reason no to continue that procedure." 60. The aforesaid principle of law has been incorporated in the instructions dated 26.02.1999. Paragraphs 2 and 4 of the aforesaid instructions which are relevant are hereunder: - "2. The reservation will be horizontal in nature i.e. to say that category for which a women has been selected under the aforesaid reservation policy for posts for women in Public Services and on the posts meant for direct recruitment under State Government, shall be adjusted in the same category only; XXX XXX XXX If a suitable women candidate is not available for the post reserved for women in Public Services and on the posts meant for direct recruitment under State Government, then such a post shall be filled up from amongst a suitable male candidate and such a post shall not be carried forward for future;" 61. The Learned Single Judge whilst interpreting the aforesaid, has observed that it does not specifically provide for posts which are not filled up by women candidates to be filled up from the male candidates. This view is contrary to the specific provision contained in Paragraph 4. The aforesaid provision leaves no matter of doubt that any posts reserved for women which remain unfilled have to be filled up from amongst suitable male candidates. There is a specific prohibition that posts shall not be carried forward for future. Therefore, the view expressed by the Learned Single Judge cannot be sustained. 62. We may also notice here that in view of the aforesaid provisions, the State has not carried forward any of the general category posts reserved for women and outstanding sportspersons. Furthermore, all the posts remaining unfilled, in the category reserved for women have been filled up by suitable male candidates, therefore, clearly no post has been carried forward. Therefore the mandate in Indra Sawhney and the G.O. Dated 26.2.1999, have been fully coupled with. We are also of the opinion that the conclusion recorded by the Division Bench is without any factual basis. The factual position was brought to the notice of Division Bench in the recall/modification application No.251407 of 2007. However, the recall/modification application was rejected. We are, therefore, of the opinion that the Division Bench erred in issuing the directions to the appellants to fill in the unfilled vacancies reserved for women candidates from suitable male candidates. This exercise had already been completed by the appellant -State. 63. As noticed earlier, the learned Single Judge despite taking note of the averments made in the supplementary counter affidavit by the State, erroneously issued directions to recalculate the vacancies reserved for outstanding sportspersons. It was specifically pointed out that a separate advertisement had been published for recruitment on the post reserved for outstanding sportsperson. It was also pointed out that all the posts available in the category of sportsmen were filled up in the subsequent selection. No post remained unfilled. Therefore, the conclusion of the learned Single Judge that the (29 SICP) + (5 PC) i.e. 34 posts ought not to have been deducted from the available 1478 posts for the purposes of calculating the number of vacancies available to the general category, was factually erroneous. It is not disputed before us that the principle of horizontal reservation would also apply for filling up the post reserved for outstanding sportsperson. It is also not disputed before us that there could have been no carry forward of any of the post remaining unfilled in the category of outstanding sportsperson. As a matter of fact, there was no carry forward of the vacancies. They were filled in accordance with the various instructions issued by the Government from time to time. In our opinion the Division Bench erred in law in concluding that since the advertisement did not mention that a separate selection will be held, for the post reserved for sportsmen, the same would not be permissible in law. The deduction of 34 posts for separate selection would not in any manner affect the overall ratio of reservation as provided by law. Furthermore, there is no carry forward of any post. The separate selection is clearly part and parcel of the main selection. In view of the factual situation, we are of the opinion, that the conclusions recorded by the learned Single Judge and the Division Bench with regard to the 34 posts reserved for the outstanding sportsmen category i.e. (29 SICP) + (5 PC) also cannot be sustained. 64. Therefore, the aforesaid appeals filed by the State and the Director General of Police are allowed. The direction issued by the learned Single Judge in the final paragraph as well as the directions issued by the Division Bench in modification of the order of learned Single Judge are set aside. 4. The issue now in so far contempt is concerned relates to filling up of unfilled vacancies belonging to women in O.B.C./ S.C./ S.T. category.;