JUDGMENT :

1. Heard Sri Anil Tiwari learned counsel for the petitioner, Sri Neeraj Tripathi learned Additional Advocate General representing the State of U.P. and Sri Ashok Khare learned Senior Advocate assisted by Sri Kamlesh Kumar Yadav, learned counsel appearing for the private respondents.

2. This Larger Bench has been constituted on a reference made by the Division Bench in Writ-A No.40695 of 2005 doubting the correctness of the judgment of the Division Bench in the case of Rajeev Kumar Vs. State of U.P., (2010) 7 ADJ 608 noticing that there are contrary judgments in the matter of adopting mechanism for application of horizontal reservation in respect of various categories such as women, dependents of freedom fighters, physically handicapped, Ex-servicemen in the State of U.P.

3. The Division Bench in the referral order has noticed that in Rajeev Kumar (supra) it has been observed that the "reservation for women has to be spread evenly for the representation of female category candidates to the extent of minimum 20% in each category". Taking note of the observations in Anil Kumar Gupta Vs. State of U.P., (1995) 5 SCC 173 as noted in Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & others, (2007) 8 SCC 785, and the conditions of the advertisement therein, it was held therein that the horizontal reservation for women has to be given category wise. Whereas, in Sheo Shankar Singh Vs. Public Service Commission,1996 AWC 1501 the Division Bench while dealing with the method of application of horizontal reservation of Ex-servicemen under the U.P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters & Ex-servicemen) Act' 1993 (hereinafter referred to as Act' 1993)' noticing the observations of the Apex Court in Indra Sawhney Vs. Union of India, (1993) AIR SC 477, has held as under:-

"Considerations and the basis of reservation under Article 16(1) different from what is contained in Article 16 (1) different from what is contained in Article 16(4), posts reserved for Ex-servicemen cannot be distributed, divided or allocated on the basis of the castes of the Ex-servicemen. Dividing vacancies reserved for Ex-servicemen and allocating them to Scheduled Castes, Scheduled Tribes, Backward Classes and general candidate is therefore, without jurisdiction. All Ex-servicemen, who applied against their reserved quota have to be treated as persons belonging to the one and the same class and all of them are to be considered against all the vacancies reserved for them strictly on the basis of the merit irrespective of the caste/class to which they belong. Claim of the petitioner is, therefore, liable to be considered on merit against all three vacancies reserved for Ex-servicemen."

4. In Bijendra Deo Mishra Vs. Public Service Commission, U.P. Allahabad, (1997) 1 AWC 84 the question that fell for consideration was whether quota for dependents of freedom fighters, physically handicapped and Ex-servicemen are to be calculated as a percentage of total vacancies in a particular service or as a percentage of the vacancies in the respective categories (i.e. SC, S.T. & OBC or General) to which the candidate belongs. Taking note of the provisions of sub section (1) of Section 3 of the Act' 1993, it was held therein as under:-

"A combined reading of sub-section (1) and (3) makes it clear that the quotas of the vacancies for physically handicapped, DFF and Ex-servicemen are to be as a percentage of total number of vacancies and it is after the persons are selected against the vacancies reserved under sub-section (1), they have to be placed in the respective caste category by making necessary adjustments."

5. The above observations made by the three Benches of this Court have been taken note of in the reference order dated 01.10.2015 to refer the following questions for consideration by the Larger Bench:-

"(a) Whet