Ajit Singh, J. - (1.) ON 21.09.2010, Rajasthan Public Service Commission (in short 'RPSC') issued an advertisement inviting applications for filling up 42 posts of Lecturer (History). The details of the vacant posts were shown as under: - -
(2.) IN response to the advertisement, large number of candidates participated in the selection process where after merit list of selected candidates was prepared. For the 23 posts of general category/open category including male and women, a merit list was prepared on the basis of their marks. In the result, the women candidates belonging to OBC category were also shown selected in the open category. And the women candidates of open category despite having secured less marks felt aggrieved with the inclusion of women candidates belonging to OBC category against the quota of open category. They, therefore, challenged the select list by filing separate writ petitions on the ground that women candidates of OBC category could not be allowed to fill -up the posts of open category irrespective of they being more meritorious. The learned Single Judge by the common impugned order dated 15.03.2013 has allowed their writ petitions. The learned Single Judge has held that women candidates belonging to reserve category cannot be migrated to general category as principle applicable to reservation under Article 16(4) is not applicable to special provision created under Article 15(3) of the Constitution. It is in this background, the selected women candidates belonging to OBC as well as the RPSC and State Government have filed the present bunch of writ appeals challenging the impugned order dated 15.03.2013. The principle relating to horizontal reservation was explained by the Supreme Court in Indra Sawhney v. Union of India : 1992 Supp (3) SCC 217 (para 812) as under: - - "[A]II 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."
(3.) A special reservation for women in respect of employment is made under Article 15(3). It is different from social reservation made under Article 16(4). The method of implementing special reservation, which is a horizontal reservation has been well explained by the Supreme Court in Anil Kumar Gupta v. State of UP : (1995) 5 SCC 173. (Para 18) as under: - - " The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. 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 over -all 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 percent in favour of special categories, overall, may be satisfied or may not be satisfied.)";