The court established that horizontal reservations must ensure that women candidates fulfilling merit criteria cannot be displaced by category claims if they satisfy reservation requirements.

ORDER :

Vinay Saraf, J.

1. The instant writ petition has been preferred by the petitioner assailing the action of the respondent whereby the respondent had cancelled the appointment of the petitioner on the post of Peon (open category) on 09.11.2017.

2. With the consent of parties, the matter is heard finally.

3. The facts of the case are that an advertisement was issued by the High Court of M.P. Jabalpur for various posts interalia three posts of Peons in open category for the District Court, Katni out of which one post was reserved for woman (unreserved category). In the advertisement, it was mentioned that reservation of the post for women shall be horizontal and compartmentalised. As per advertisement, last date for application was 27.10.2016. The petitioner applied for the post of Peon and secured the third position in merit list. Consequently, he was appointed on 17.03.2017 by District and Sessions Judge, Katni. He joined on the same day.

4. It appears that thereafter the objections were submitted by respondent no.3, Smt. Deepshikha Kesharwani that respondent no.5, Smt. Shashi Kumari Vishwakarma had applied under the OBC category and was appointed against the open seat, therefore, her appointment cannot be considered against the seat reserved for woman (unreserved). She claimed that as she scored 21 marks in selection process, she be appointed against the reserved post for women (unreserved) and appointment of respondent no.5 be treated against unreserved seat. Learned OSD (District Establishment) issued a letter to District and Sessions Judge, Katni on 08.11.2017 on the basis of the amended wait list dated 29.07.2017 and directed to consider the appointment of respondent no.5 Smt. Shashi Kumari Vishwakarma in OBC category and to cancel the appointment order of petitioner after affording opportunity of hearing.

5. Consequently on the next day, District and Sessions Judge Katni terminated the services of the petitioner by order dated 09.11.2017. However, it is mentioned in the order that sufficient opportunity was granted to the petitioner.

6. The respondent no.3 was appointed by order dated 18.05.2017 against the reserved seat for woman (unreserved) as the respondent no.5 Smt. Shashi Vishwakarma, who secured top position in merit list was treated as OBC candidate. The order of cancellation of appointment of the petitioner and process adopted for reservation are challenged by the petitioner as well as the appointment order of respondent no.3 dated 18.05.2017.

7. Learned counsel for the petitioner submits that process adopted by the employer was erroneous as only three posts for the peon at Katni were advertised and out of three posts, two were open and one was reserved for woman of unreserved category and the reservation was horizontal therefore, the appointment of respondent no.5 could not be considered against OBC category as no posts for OBC was advertised. He further submits that when one post of open category was horizontally reserved for the woman, the respondent no.5 who secured top position in merit list, her appointment ought to have been considered against the reserved seat of woman in open category and therefore, the respondent no.3 who was not in top three candidates of merit list could not be appointed against reserved seat of woman and the cancellation of the appointment of the petitioner on the said ground was erroneous, incorrect, arbitrary and is liable to be set aside.

8. Learned counsel for the petitioner relied on the judgment delivered by the Supre