Coram – U.U. Lalilt J. , Ravindra Bhatt J., Hrishikesh Roy J.
Fact of the case-
- Sonam Tomar (OBC-Female) and Rita Rani (SC-Female) applied for constable recruitment in UP police and secured 276.5949 and 233.1908 marks respectively.
- But their claim for the post was rejected and candidates with lower marks were selected for General Category –Female
- The state’s plea was that there was horizontal reservation for female constables for General, OBC and SC category. While drawing the impugned select list, the horizontal quota was already filled for OBC and SC category and hence, in the impugned list only woman for female category were given benefit of reservation.
- The last candidate who was selected as per General Female category secured – 274.8298 marks. Sonam Tomar had secured 276.5949 marks but her case was not considered. Twenty one other such candidates belonging to OBC category were present who had scored more marks than the last candidate selected under General-Female category
- The Government took the stand that the category was general-female category and hence OBC-female category students could not be selected
The following judgments of the Supreme Court were referred while deciding the case
|Indra Sawhney and Others vs. Union of India and others||Art. 16(4) – Vertical reservation Art. 16(1) – Horizontal reservation Horizontal reservation cuts across the vertical reservation and hence called as interlocking reservation|
|Swati Gupta (Ms.) vs. State of U.P. and others (1995) 2 SCC 560||All reservation vertical and horizontal put together should not be more than 50%. Same was held in Indra Sawheny too|
|Anil Kumar Gupta and others vs. State of U.P. and others (1995) 5 SCC 173||Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservationsout of the total 746 seats, 112 seats (representing fifteen per cent) should be filled by special reservation ( horizontal)candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for OBCs; if the 112 special reservation seats are also divided proportionately as between OC, OBC, SC and ST, 30 seats would be allocated to the OBC category; in other words, thirty special category students can be accommodated in the OBC category; but say only ten special reservation candidates belonging to OBC are available, then these ten candidates will, of course, be allocated among OBC quota but the remaining twenty seats cannot be transferred to OC category (they will be available for OBC candidates only)the special reservation would be a watertight compartment in each of the vertical reservation classes. This special reservation is horizontal reservation OC, OBC, SC and ST will not be altered|
|K. Krishna Murthy (Dr.) and others vs. Union of India and another (2010) 7 SCC 202||Horizontal reservations in favour of women are meant to intersect with the vertical reservations in favour of SCs/STs/OBCs, since one-third of the seats reserved for the latter categories are to be reserved for women belonging to the same. This means that seats earmarked for women belonging to the general category is not accounted for if one has to gauge whether the upper ceiling of 50% has been breached|
|Public Service Commission, Uttaranchal etc. vs. Mamta Bisht and others (2010) 12 SCC 204||Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of ‘Scheduled Caste women’. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.”|
|Rajesh Kumar Daria etc. vs. Rajasthan Public Service Commission and others||a candidate belonging to any of the vertical reservation categories, on the basis of his own merit, is entitled to be selected in the Open or General Category and in such eventuality his selection is not to be counted against the quota reserved for such vertical reservation category.|
|Union of India v. Virpal Singh Chauhan||while determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.|
|Shri V.V. Giri vs. Dippala Suri Dora and Others (1960) 1 SCR 426||a member of a Scheduled Caste or Tribe does not forego his right to seek election to the general seat merely because he avails himself of the additional concession of the reserved seat by making the prescribed declaration for that purpose. The claim of eligibility for the reserved seat does not exclude the claim for the general seat; it is an additional claim; and both the claims have to be decided on the basis that there is one election from the double-member constituency.|
Then the court followed some decisions of the High Courts
|Megha Shetty vs. State of Rajasthan||in the event of woman candidate belonging to OBC category on securing more marks than the woman candidate of general category finds a position in the select list of candidates of general category, the same cannot be treated as migration|
|Asha Ramnath Gholap vs. The President, District Selection Committee/Collector ( Bombay High Court)||We find the argument advanced as above to be fallacious. Once it is held that general category or open category takes in its sweep all candidates belonging to all categories irrespective of their caste, class or community or tribe, it is irrelevant whether the reservation provided is vertical or horizontal. There cannot be two interpretations of the words `open category’; one applicable for vertical reservation and other for horizontal reservation. Reservation prescribed may be `vertical’ or `horizontal’ if it relates to open category, the candidate belonging to backward class cannot be precluded from competing for the said posts on their own merit with rest of the candidates.|
|Kanchan Vishwanath Jagtap vs. Maharashtra Administrative Tribunal, Nagpur and others (Bombay High Court)||A situation would exist that a male candidate belonging to a reserved category would be entitled to be selected against an open category post if he is entitled on his own merit. However, a female candidate belonging to a reserved category, even though she is much more meritorious than a candidate belonging to open category women, would not be entitled to be selected against the said post. The said situation in effect would result in permitting a discriminatory treatment to the women reserved candidates as against the male reserved candidates. We find that such a situation is not permissible under the Constitutional scheme as interpreted by the Constitution Bench of the Apex Court in the case of Indra Sawhney|
- The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in “Open or General Category” is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong.
- 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.
- In a concurring judgement, Justice Ravindra Bhatt told
- 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.
- 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. 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.
- The open category is not a ‘quota’, but rather available to all women and men alike.
- 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, 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.