ORDER

1. This writ petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :--

“(i) That, the present petition filed by the petitioner may kindly be allowed;

(ii) That, the order dated 20.1.2017 Annexure P/1 passed by the respondent-Registrar may kindly be directed to be set aside.

(iii) That, the respondent may kindly be directed to appoint the petitioner against the post of Sub-Engineer (Civil) in Open Category on the basis of her merit and to grant her all consequential benefits from the date 9.8.2016 the other persons have been granted benefit.

(iv) That, any other just, suitable and proper relief, which this Hon’ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner.”

2. It is the case of the petitioner that she is holding the degree of Bachelor of Engineering (Civil). The respondent University advertised certain posts of Sub Engineer (Civil) by issuing an advertisement on 11.1.2012. As per this advertisement, four posts of Sub Engineer (Civil) were kept in unreserved category, whereas two posts were reserved for ST category and one post was reserved for SC category and one post was reserved for OBC category. As per the advertisement, 30% reservation for women was prescribed. The petitioner also participated in the aforesaid advertisement against women unreserved category. The result was declared, according to which, Ku. Aarti Kaithwas was placed at serial No.1 in SC category, whereas the petitioner had obtained 49 marks and she was placed at serial No.1 in the women unreserved category. However, thereafter the final select list was issued and out of 8 posts, only 7 posts were filled. Although the petitioner was at serial No.1 in the women unreserved category, but still she was not given the appointment.

3. The respondents filed their return and submitted that the reservation was horizontal in nature. It is well established principle of law that if a candidate belonging to reserved category succeeds in getting more marks than the cut off marks of general category, then he or she shall be treated as a general category candidate. Furthermore, the petitioner could not score minimum cut off marks fixed by the selection committee.

4. In reply, it is submitted by the counsel for the petitioner that in the case of horizontal reservation, migration of a candidate from one category to another category is not permissible. There was no provision for providing minimum cut off marks and the selection committee on its own cannot make such provision.

5. Heard learned counsel for the parties.

6. The question for consideration is that “in case of horizontal reservation whether the candidate belonging to a reserved category can be given appointment against unreserved quota on the ground that he or she is more meritorious or not?”

7. The counsel for the petitioner has relied upon the order dated 30.11.2017 passed by the Division Bench of this Court in the case of Surendra Singh Yadav v. State of M.P. and others (Writ Appeal No.414/2017) and the order dated 30/11/2017 passed in the case of Madhya Pradesh Public Service Commission v. Dr. Nabhikishor Chaudari and others (Writ Appeal No.940/2017) and submitted that in case of horizontal reservation, migration from one category to another category is not permissible.

8. The first question for consideration is “as to whether in case of horizontal reservation, migration from one category to another category is permissible or not?”

9. Unreserved category is not a quota and cannot be treated as a separate independent category reserved for those candidates only who does not belong to other reserved category. Unreserved category is an open category available to all the candidates, even to those who are belonging to other reserved categories. Therefore, if a candidate belonging to a reserved class is given appointment against the unreserved quota for having secured more marks, then it would not