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IN THE SUPREME COURT OF INDIA
UDAY UMESH LALIT, S. RAVINDRA BHAT, HRISHIKESH ROY, JJ.
SAURAV YADAV & ORS. – APPELLANTS
Versus
STATE OF UTTAR PRADESH & ORS. – RESPONDENTS
MISCELLANEOUS APPLICATION NO.2641 OF 2019 IN SPECIAL LEAVE PETITION (CIVIL)NO.23223 OF 2018, WITH W.P. (C) NO.237 OF 2020
Decided on : 18-12-2020
Per Uday Umesh Lalit, J.
Service Law – Reservation – A candidate belonging to any of vertical reservation categories, on the basis of his own merit, is entitled to be selected in Open or General Category and in such eventuality his selection is not to be counted against quota reserved for such vertical reservation category – Principle that candidates belonging to any of vertical reservation categories are entitled to be selected in “Open or General Category” is well settled – It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against quota reserved for categories for vertical reservation that they belong – Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit – Any selection which results in candidates getting selected against Open/General category with less merit than other available candidates will certainly be opposed to principles of equality – There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected – But converse can never be true and will be opposed to very basic principles which have all while been accepted by this Court – Any view or process of interpretation which will lead to incongruity must be rejected – Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in ‘Open/General Category’ and that they have not taken or availed of any special benefit which may disentitle them from being considered against ‘Open/General Category’ seat. (Paras 19, 22 and 35)
Per S, Ravindra Bhat, J. (assenting View)
(A) Reservation – Dimensions – Quota provided for women, as well as dependents of freedom fighters (DFF) and ex-servicemen, in present case are characterized as ‘horizontal’ whereas quotas for social groups (SCs, STs, OBCs) are characterized as ‘vertical’ – Horizontal reservations on other hand, by their nature, are not inviolate pools or carved in stone – They are premised on their overlaps and are ‘interlocking’ reservations – As a sequel, they are to be calculated concurrently and along with inviolate ‘vertical’ (or “social”) reservation quotas – They cannot be carried forward. – First rule that applies to filling horizontal reservation quotas is one of adjustment, i.e. examining whether on merit any of horizontal categories are adjusted in merit list in open category, and then, in quota for such horizontal category within particular specified/social reservation – Open category is not a ‘quota’, but rather available to all women and men alike. Similarly, there is no quota for men. (Paras 5, 10 and 11)
(B) Service Law – Reservation – Controversy that arises in present round of litigation is correct method of filling quota reserved for women candidates (horizontal quota) – It is complaint of applicants who are largely women belonging to Other Backward Class categories, that state has not correctly applied rule of reservation and denied such OBC women candidates benefit of migration, i.e. adjustment in general category vacancies – Reservations, both vertical and horizontal, are method of ensuring representation in public services – These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in open general category, is foreclosed – Doing so, would result in a communal reservation where each social category is confined within extent of their reservation, thus negating merit – Open category is open to all and only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him. (Paras 3 and 15)
Facts of the case:
Applicants had participated in 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. Aggrieved by the action on part of the State in not considering claim of OBC female and SC female candidates against the posts meant for General Category female candidates, this Miscellaneous Application is preferred. Controversy that arises in the present round of litigation is the correct method of filling the quota reserved for women candidates (horizontal quota). It is the complaint of the applicants, who are largely women, belonging to Other Backward Class categories, that the state has not correctly applied rule of reservation, and denied such OBC women candidates the benefit of “migration”, i.e. adjustment in the general category vacancies.
Findings of Court:
Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in ‘Open/General Category’ and that they have not taken or availed of any special benefit which may disentitle them from being considered against ‘Open/General Category’ seat. The entire discussion and analysis in the present case is, therefore, from said perspective.
Result : Writ Petition dismissed.
Key Points: - The judgment clarifies that horizontal reservations (e.g., for women, DFF, Ex-Servicemen) are interlocking with vertical reservations and must be applied concurrently with vertical quotas; open category remains merit-based and is not a fixed "slot" (!) (!) (!) . - The Court rejects the "second view" that would permit migration of reserved-category candidates into open category at the stage of horizontal reservations; instead, it upholds adjustment within respective social categories or in open category only to the extent Merits permit, ensuring horizontal reservations do not undermine merit (!) (!) (!) . - The judgment provides detailed methodological guidance (compartmentalized vs overall horizontal reservations) and endorses a first view aligning with the Gujarat/Bombay/Rajasthan/Uttarakhand approach, requiring adjustments within the reserved categories and ensuring open-category merit is preserved; it also cautions against premising horizontal reservations as rigid slots (!) (!) (!) .
JUDGMENT :
Uday Umesh Lalit, J.
MISCELLANEOUS APPLICATION NO. 2641 OF 2019
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 I.A. 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, Writ A. No. 67782 of 2014, (2015 SCC OnLine All 1250) 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 & 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 Kumar1. This Court, therefore, observed that those candidates who were selected as a result of directions in Saket Kumar1 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 Shukla2 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 Shukla2 which is to say those 4429 candidates would be taken as additional appointments over and above the number of posts for
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