Saurav Yadav & Ors. vs State of Uttar Pradesh & Ors.

Constitution of India – Reservations – Horizontal reservation and vertical reservation – Held: 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 the open general category, is foreclosed – Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit – The open category is open to all, and the 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.

Constitution of India – Reservations – Difference between Horizontal reservation and vertical reservation – discussed. Partly allowing the Miscellaneous Application No. 2641 and I.A.No. 25611 of 2019 and dismissing the W.P.(C) No. 237 of 2020, the Court

HELD: Per UDAY UMESH LALIT, J. [for himself, S. RAVINDRA BHAT and HRISHIKESH ROY, JJ.]

1. The second view (view of High Court of Allahabad and Madhya Pradesh) is neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. 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 the 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 the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity, must be rejected. [Para 31][333-D-G]

2. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open/General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court. [Para 32][333-G-H]

3. This Court, therefore, does not approve the second view and reject it. The first view which weighed with the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is correct and rational. [Para 33][334-A]

4. It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before the Single Judge of the High Court were absolutely correct. The Single Judge and the Division Bench of the High Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of Bombay in Charushila vs. State of Maharashtra 2019 SCC Online Bom 1519 was correct. [Para 34][334-A-D]

5. This Court must also clarify at this stage that it is not disputed that the 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. [Para 35][334-D-E]

6. Finally, this Court must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai [R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018] contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but this Court may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity. [Para 36][334-E-H]

7. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in ‘Open/General Category’, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us. However, considering the facts that those selected candidates have actually undergone training and are presently in employment and that there are adequate number of vacancies available, this Court mould the relief and direct as under:- a) All candidates coming from ‘OBC Female Category’ who had secured more marks than 274.8929, i.e. the marks secured by the last candidate appointed in ‘General Category– Female’ must be offered employment as Constables in Uttar Pradesh Police. b) Appropriate letters in that behalf shall be sent to the concerned candidates within four weeks. c) If the concerned candidates exercise their option and accept the offer of employment, communications in that behalf shall be sent by the concerned candidates within two weeks. d) On receipt of such acceptance, the codal and other formalities shall be completed within three weeks. e) Letters of appointment shall thereafter be issued within a week and the concerned candidates shall be given appropriate postings. f) For all purposes, including seniority, pay fixation and other issues, the employment of such candidates shall be reckoned from the date the appointment orders are issued. g) The employment of General Category Females with cut off at 274.8929 as indicated by the State Government in its affidavits referred to in paragraphs 5 and 8 hereinabove are not to be affected in any manner merely because of this judgment. Since it has been accepted that none of the candidates coming from ‘SC Female Category’ had secured more marks than 274.8298, the claims of the Applicant no.2 and all similarly situated candidates are rejected. [Para 37, 38][335-A-F] Per S. RAVINDRA BHAT, J.

1. The features of vertical reservations are: (i) They cannot be filled by the open category, or categories of candidates other than those specified and have to be filled by candidates of the concerned social category only (SC/ST/OBC); (ii) Mobility (‘migration’) from the reserved (specified category) to the unreserved (open category) slot is possible, based on meritorious performance; (iii) In case of migration from reserved to open category, the vacancy in the reserved category should be filled by another person from the same specified category, lower in rank, (iv) If the vacancies cannot be filled by the specified categories due to shortfall of candidates, the vacancies are to be ‘carried forward’ or dealt with appropriately by rules. [Para 9][341F-H; 342-A]

2. Horizontal reservations on the 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 the inviolate ‘vertical’ (or “social”) reservation quotas, by application of the various steps laid out with clarity in paragraph 11 of Justice Lalit’s judgement. They cannot be carried forward. The first rule that applies to filling horizontal reservation quotas is one of adjustment, i.e. examining whether on merit any of the horizontal categories are adjusted in the merit list in the open category, and then, in the quota for such horizontal category within the particular specified/social reservation. [Para 10][342-A-C]

3. The open category is not a ‘quota’, but rather available to all women and men alike. Similarly, as held in Rajesh Kumar Daria v. Rajasthan Public Service Commission, 2007 (8) SCC 785, there is no quota for men. If the second view is accepted [as held by the Allahabad High Court in Ajay Kumar v. State of UP (2019)

5 ALJ 466 and the Madhya Pradesh High Court in State of Madhya Pradesh & Anr. v. Uday Sisode & Ors. (2019) SCC Online MP 5750, referred to in paragraph 20 of Justice Lalit’s judgement], the result would be confining the number of women candidates, irrespective of their performance, in their social reservation categories and therefore, destructive of logic and merit. The second view, therefore – perhaps unconsciously supports- but definitely results in confining the number of women in the select list to the overall numerical quota assured by the rule. [Para 11][342-A-E]

4. In my opinion, the second view collapse completely, when more than the stipulated percentage 20% (say, 40% or 50%) of women candidates figure in the most meritorious category. The said second view in Ajay Kumar and Uday Sisode thus penalizes merit. The principle of mobility or migration, upheld by this court in Union of India v. Ramesh Ram (2009) 6 SCC 619 and other cases, would then have discriminatory application, as it would apply for mobility of special category men, but would not apply to the case of women in such special categories (as glaringly evident from the facts of this case) to women who score equal to or more than their counterparts in the open/ general category. [Para 12][342-A-F; 343-A]

5. 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 the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the 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. [Para 15][344-A-G]

In the Judgment of Uday Umesh Lalit, J.

Shri V.V. Giri v. Dippala Suri Dora and Others [1960]

1 SCR 426 – followed.

Megha Shetty v. State of Rajasthan 2013 (4) RLW 3227 (Raj.); Neelam Sharma v. State of Rajasthan and Ors. (2015) SCC OnLine Raj 1391; Asha Ramnath Gholap v. The President, District Selection Committee/Collector (2016) SCC OnLine Bom 1623-20; Kanchan

Vishwanath Jagtap v. Maharashtra Administrative Tribunal, Nagpur and Others (2016) 1 Mah. L.J. 934; Tejaswini Raghunath Galande v. Chariman,

Maharashtra Public Service Commission, Mumbai and Others (2019) 4 Mah L.J. 52-207; Charushila v. State of Maharashtra (2019) SCC OnLine Bom 1519;

Shantabai Laxman Doiphode v. State of Maharashtra (2020) SCC OnLine Bom 1659; Uttarakhand

Subordinate Service Selection Commission and Another v. Ranjita Rana and Another (2019) SCC OnLine Utt 481; Sudhir Kumar v. State of Uttarakhand and Others Writ Petition (S/B) No.392 of 2017 dated 11.12.2018; Tamannaben Ashokbhai Desai v. Shital Amrutlal Nishar R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020 – approved.

Ajay Kumar v. State of U.P. and Others (2019) 5 ALJ 466; State of Madhya Pradesh and Another v. Uday Sisode and Others (2019) SCC OnLine MP 5750 – disapproved.

State of UP & Ors. v. Ashish Kumar Pandey & Ors. (2016) SCC OnLine All 2611; Pramod Kumar Singh and Others v. State of U.P. and Others Writ A. No.18442 of 2018; Indra Sawhney and Others v. Union of India and Others (1992) 3 Suppl. SCC 217; Swati Gupta (Ms.) v. State of U.P. and Others (1995) 2 SCC 560; [1995] 1 SCR 827; Anil Kumar Gupta and others v. State of U.P. and Others (1995) 5 SCC 173; [1995] 2 Suppl. SCR 396; Rajesh Kumar Daria Etc. v. Rajasthan Public Service Commission and Others (2007) 8 SCC 785; [2007] 8 SCR 972; K. Krishna Murthy (Dr.) and Others v. Union of India and Another (2010) 7 SCC 202; [2010] 6 SCR 972; Public Service Commission, Uttaranchal Etc. v. Mamta Bisht and Others (2010) 12 SCC 204; [2010] 7 SCR 289; Alok Kumar Singh and Others v. State of Uttar Pradesh and Others; (2019) 14 SCC 692; [2018] 14 SCR 328 – referred to.