JUDGMENT :

R.M. BORDE, J.

1. In this group of petitions, the question, that arises for consideration, is as regards methodology of filling in the vacancies prescribed for horizontal reservation which flows from Article 16(1) of the Constitution of India. Another question, that would be required to be considered is, as to whether rule of migration/shifting can be applied and to what extent.

2. In Writ Petition No. 4159 of 2018, the petitioners are objecting to the Government Circular dated 13.08.2014 and are also praying to quash Clause 19 recorded in the call letters issued to them. The petitioners participated in the process of selection conducted by the Maharashtra Public Service Commission for filling up vacancies for the posts of Deputy Collector, Deputy Superintendent of Police, Assistant Commissioner of Police and such other posts. The posts have been earmarked under the advertisement for various vertical and horizontal reservation categories. The petitioners appeared for main examination and have been declared qualified for the interview, which was scheduled on 09.04.2018. It is recorded in the call letters issued to the petitioners, “while filling up the posts from horizontal reservation from general category, firstly the selection of the candidates should be made on the basis of merit amongst all the candidates including the backward category candidates also.” The candidates were directed to bring their school leaving certificate at the time of interview for verifying as to which category they belong to and from which category they have filled in their application forms.

3. The petitioners contend that though they belong to reserved category, they have filled in their application forms as a general category candidates and have not claimed any benefit as a member belonging to reserved category. In view of the Circular dated 13.08.2014, issued by the State of Maharashtra, the petitioners apprehend that since they belong to reserved category, though they have not claimed any benefits of reservation, they will not be considered for the unreserved vacancies even if they are qualified on the basis of their individual merit.

4. In an affidavit-in-reply presented on behalf of Respondent-Maharashtra Public Service Commission, it is recorded that the Circular dated 13.08.2014 is founded on the earlier circular issued on 16.03.1999. The circular dated 16.03.1999 is based on the judgment delivered by the Hon'ble Supreme Court in the matter of Anil Kumar Gupta vs. State of U.P. and Others, (1995) 5 SCC 173. It is recorded in clause 5 of the Circular dated 16.03.1999:

The first step is to prepare the select list of open general competition category and then to identify the available candidates in the list claiming horizontal reservation. If the candidates are available in the general select list in adequate number claiming horizontal reservation, then no need to select additional candidates claiming horizontal reservation. If there is short fall of the candidates claiming horizontal reservation, then candidates from respective categories are to be included in the list.

The second step is to prepare the select list of respective social reservation categories and adopt the same procedure prescribed in Step 1 to accommodate the candidates belonging horizontal reservation, if there is shortfall.

5. According to Respondent-Maharashtra Public Service Commission, in view of the Circular dated 13.08.2014, only the candidates belonging to open (Non-reserved) category can be considered for open horizontally reserved posts meaning thereby, the reserved category candidates cannot be considered for open horizontally reserved post. Reference is made to a communication issued by the Additional Chief Secretary (Service) of the State of Maharashtra dated 26.07.2017, whereunder it is prescribed that a female candidate belonging to any reserved category, even if tenders application form seeking employment as an open category candidate, the name of such candi