# Abhishek Kumar Singh & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-24
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-kumar-singh-ors-v-state-of-u-p-ors-44255
- **Pages:** 33

## Text

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36 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 36
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 5158 Of 2015
&
Connected With Other Cases

Abhishek Kumar Singh & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Vidhu Bhushan Kalia, Ankit Pande, Birendra Pratap Singh, Laxmi Kant Pathak, Rajat Rajan Singh, Ravi
Pratap Singh

Counsel for Respondents:
C.S.C., Abhishek Bose, Amit Bose, Dr L P Mishra, P.D.Verma, Pushkar Baghel, Vijay Kumar

Held

The writ petitions are maintainable; participation in the selection does not bar challenge where illegality
lies in the manner of selection, not in the prescribed rules.
Rounding off of marks in the preliminary examination is illegal, as:
No provision exists in the Service Rules, 2008 or Instructions Manual.
It allowed ineligible candidates (<50%) to participate further.
Statutory eligibility criteria must be strictly adhered to.
Horizontal reservation was wrongly applied:
Candidates selected under horizontal categories (women, ex-servicemen, etc.) were wrongly placed en
masse in the unreserved category.
This violates Section 3(3) of the U.P. Act, 1993.
Horizontal reservation must be category-wise (compartmentalized).
Calling more than 3 times candidates for Group Discussion:
Violates Rule 15(f) of the 2008 Rules.
Excess candidates must be excluded.
Use of whitener in OMR sheets:
Cannot be a ground for disqualification (as per Supreme Court).
Such candidates are validly considered.
Reserved category candidates on merit:
Can be selected against unreserved posts under Section 3(6).
State must periodically review adequacy of representation.
The selection process is vitiated due to:
Illegal rounding off,
Wrong application of horizontal reservation,
Violation of Rules in shortlisting.
8 All. Abhishek Kumar Singh & Ors. Vs State Of U.P. & Ors.
37
Government Order dated 25.03.1994 is valid (intra vires):
Relaxation in age/fees does not affect merit-based selection.
Does not violate Articles 14 or 16.
The entire selection from the stage of main written result onwards is quashed.
Direction:
Re-evaluation and fresh selection to be conducted strictly as per law.
To be completed within 4 months.

CASE LAW CITED

Om Prakash Shukla v. Akhilesh Kumar Shukla
Chandra Prakash Tiwari v. Shakuntala Shukla
H.C. Pradeep Kumar Rai v. Dinesh Kumar Pandey
Raj Kumar v. Shakti Raj
Madan Lal v. State of J&K

(Delivered by Hon'ble Rajan Roy, J.)

1. This is a bunch of writ petitions involving similar facts and issues relating to a challenge
to the select list dated 25.06.2015 pertaining to selection to the post of Sub Inspector Civil Police
and Platoon Commander held in pursuance to an advertisement issued on 19.05.2011 and also a
challenge to paragraph 4 of the Government order dated 24.03.1994.

2. For convenience writ petition no. 5158 (SS) of 2015 has been treated as the leading writ
petition and the facts mentioned hereinafter are based on its records.

3. Learned Advocate General initially contended that hearing of the matter be deferred on
account of the reference made by a Division Bench of this Court in Writ-A No. 40695 of 2005
(Ajay Kumar vs. State of U.P. And others) as to what should be the mechanism for application of
horizontal reservation in respect of various categories provided therein namely women, dependents
of freedom fighter /physically handicapped etc. in the State of U.P. noticing a conflict in the ratio
of Rajeev Kumar vs State of U.P. reported in (2010) 7 SCC 708. As this pleas was negatived by a
Coordinate Bench while deciding the case of Writ-A 37599 of 2015 (Ashish Kumar Pandey and
others vs. State of U.P. and others) which has been upheld in Special Appeal and the mechanism
for horizontal reservation is already mentioned in rule 3(3) of the Act, 1993 and clause 2.5 of the
Instructions Manual as also the Government orders on the subject, including women reservation,
and as the grounds of challenge in these petitions go beyond the question of application of
horizontal reservation, therefore, this Court does not find any reason to defer the hearing of these
writ petitions.

4. The selection in question was regulated by the Rules known as U.P. Sub-Inspector and
Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as the 'Service Rules of 2008).
As per the said Rules the selection was to comprise of a Physical Standard test [Rule 15(c)];
Preliminary Written test [(Rule 15(d)]; Physical Efficiency Test [Rule 15(e)], Main written
examination [Rule 15 (f); Group Discussion (Rule 15(g); Tentative Select List [Rule 15(h)];
38 INDIAN LAW REPORTS ALLAHABAD SERIES

Medical Test [Rule 15(i)]; and Character verification [Rule15(j)]. Thereafter the appointment
orders were to be issued. The physical standard test, preliminary written test, physical efficiency
test, were to be of a qualifying nature and their marks were not to be added in the final merit.

5. Preliminary written test was to comprise of 200 marks. The candidate was required to
secure 50% marks in the said test in order to be successful and for being called for the Physical
Efficiency Test. In the physical efficiency test the male candidates were required to complete a run
of 4.8 kilometers in 35 minutes female candidates were required to complete a run of 2.4
kilometers in 20 minutes. The main written examination was to comprise of 400 marks in various
subjects and minimum fifty percent marks in each subject was necessary for being eligible for
consideration for further selection. Having regard to the need for securing due representation of the
candidates belonging to the Scheduled Castes, Scheduled Tribes and others under Rule 6, the Board
was to prepare a list of successful candidates on the basis of marks obtained by them in the main
written examination. The number of candidates selected in the main written examination as
aforesaid were to appear in Group discussion to the extent of three times of the number of
vacancies. The marks obtained by each candidate in main examination were to be added to the
marks obtained by him in the Group discussion and on the basis of total marks obtained by each
candidate as aforesaid, keeping in view the reservation policy, a tentative select list of each
category of candidates in respect of vacancies was to be prepared and sent to the head of the
department
with
recommendation,
subject
to
medical
test
and
verification
of
Testimonials/character, who was to undertake further action.

6. In the instant case the advertisement for the aforesaid selection was issued on
19.05.2011. The preliminary test was held on 11.12.2011. Its result was declared on 01.12.2013.
The physical efficiency test was held between 05.02.2014 to 17.02.2014. On 14.09.2014 the main
examination was held. Its result was declared on 23.04.2014 in which the petitioners were declared
successful. Thereafter group discussion was held on different dates and the select list was issued
wherein the names of the petitioners did not figure.

7. One writ petition was filed at Allahabad by Ashish Kumar Pandey and others (supra)
challenging the same selection on the ground of erroneous application of horizontal reservation,
wherein an interim order was passed staying the selection which was subsequently modified. The
said writ petition was allowed on 16.03.2016 and the selection in question was quashed on the
aforesaid ground. The opposite parties were directed to re-determine the merit list in terms of the
direction issued therein. The aforesaid judgment was put to challenge by the State in Special
Appeal No. 310 of 2015 wherein judgment was reserved. Subsequently it has been pronounced and
the judgment of Hon'ble Single Judge has been upheld except to the extent, certain observations
made therein unrelated to merits of the controversy, have been expunged. This development has
taken place after the judgment was reserved in this case. As, in this writ petition the selection has
been challenged on a number of grounds including those which were not raised in the aforesaid
proceedings at Allahabad, therefore, it is necessary to decide these petitions on merits.
8 All. Abhishek Kumar Singh & Ors. Vs State Of U.P. & Ors.
39
8. The total number of posts of Sub Inspector Civil police which were advertised for
selection were 3698 out of which 777 were reserved for Scheduled caste, 74 were reserved for
Scheduled Tribe, 998 were reserved for other backward class category and 1849 were for
open/unreserved/general category. Total number of posts of Platoon Commander for selection were
312 out of which 66 were reserved for Scheduled caste, 6 were reserved for Scheduled tribe, 84
were reserved for other backward class category and 156 were for open/unreserved/general
category. Thus the total number of posts advertised were 4010 out of which 843 were reserved for
Scheduled caste, 80 for Scheduled tribe, 1082 for other backward class category and 2005 were for
open/unreserved/general category.

9. Horizontal reservation for dependents of freedom fighter and ex-servicemen was 2% and
5% respectively. Under the Government orders such reservation for women was 20%.

10. The compartmentalized breakup of horizontal reservation provided for, in each social
category, as worked out by the Board was as under:-

 Open Category:

1. Women

 370

2. Dependent of Freedom Fighter

 37

3. Ex-Servicemen

 92

 OBC Category:

1. Women.

 200

2. Dependent of Freedom Fighter

 20

3. Ex-Servicemen

 50

 Scheduled Caste Category:

1. Women

 155

2. Dependent of Freedom Fighter

 16

3. Ex-Servicemen

 39

 Scheduled Tribe Category:

1. Women

 15

2. Dependent of Freedom Fighter

 1

3. Ex-Servicemen

 5

11. The cut off marks of the respective categories at the final selection i.e. OC/OBC/SC/ST
was as follows:-
40 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Open category

 - 328.5

2. OBC category

 -316.0833

3. Scheduled Caste

 -271.5

4. Scheduled Tribe

 -235.4167.

12. 19 women candidates ( 9-General Category and 10-OBC) having obtained marks above
the cut off marks for the open category were selected on open merit. Out of a total quota of 740
posts for women only 261 candidates could be selected, therefore, they were to be adjusted
horizontally under the women quota. Likewise, candidates belonging to dependent of freedom
fighter and ex-servicemen were to be adjusted horizontally.

13. As against 740 posts/vacancies reserved for women only 261 female successful
candidates were available. As, except one all of them were, according to opposite parties,
meritorious enough for appointment in the unreserved category and the 370 seats meant for the said
category all of them were placed in the said category. Out of 200 seats for dependents of exservicemen based on horizontal reservation only 17 were available. Out of 200 posts 100 such posts
fell for reserved category candidates whereas remaining 100 for unreserved category. As all 17
were meritorious enough to be appointed in General category, therefore, they were put in the said
category. Similarly 37 dependents of Freedom Fighter were successful in the Sub-Inspector merit
list against total seats of 80 (40 for unreserved and 40 for Scheduled Caste/Scheduled Tribe &
Other Backward Class category), therefore, as all these were meritorious enough to be placed in
unreserved category they were placed accordingly in the said category. Thus, all the candidates
selected on the basis of horizontal reservation were adjusted against unreserved/open/general
category and equal number of general candidates were ousted as a consequence thereof from the
said category.

14. This Court on 04.11.2015 had recorded the points/questions which fell for
consideration in these writ petitions, they are as under:-

1. Locus standi of the petitioners to maintain this writ petition challenging the
criteria of recruitment after having participated in the selection process, specially the challenge to
the government order dated 25.3.1994.

2. The permissibility of rounding off the percentage of marks for the purpose of
eligibility for the main written examination, based on the marks secured in the preliminary
examination, in the light of the pronouncement of the Supreme Court reported in (2011) 8 SCC
108.

3. Applicability of horizontal reservation for women dependents of Freedom
Fighters and Ex-servicemen in the selection.
8 All. Abhishek Kumar Singh & Ors. Vs State Of U.P. & Ors.
41
4. The calling of more than three times candidates for the purposes of groupdiscussion in alleged contravention of U.P. Sub-Inspector and Inspector (Civil Police) Service
Rules 2008 as well as the instructions issued in this regard, for the O.B.C. Category.

5. The alleged inclusion of candidates who had used Whitener in the O.M.R.
Sheets, allegedly in contravention of the judgment of this court in the Case of Saket Kumar & ors.
v. State of U.P.

6. The number of O.B.C. and other reserved category candidates who were called
for recruitment under the unreserved category based on their merit, bereft of reservation, and its
effect on the application of reservation, to the recruitment in the light of the dictum of a
Constitution Bench of the supreme court in the case of R.K. Sabbarwal v. State of Punjab, 1995
SCC (2) 745.

7. Whether any prejudice is being caused to the petitioners assuming the aforesaid
infractions, apart from the alleged illegalities.

8. Subject to the locus standi of petitioners, as referred above, the validity of the
G.O. Dated 25.3.1994 and the application of the judgment of the Supreme Court rendered in the
case of Jitendra Kumar v. State of U.P., 2010 3 SCC 119.

15. The parties have exchanged their pleadings which have been perused. They have also
filed written arguments which have also been perused. The parties were heard at length. Interveners
and those seeking impleadment have also been heard through their counsel. As the stand of
applicants seeking intervention or impleadment is the same as that of the official opposite parties,
therefore, all such applications are disposed of with such right of hearing.

Point No. 1:

Locus standi of the petitioners to maintain this writ petition challenging the criteria of
recruitment after having participated in the selection process, specially the challenge to the
government order dated 25.3.1994.

16. The contention of the respondents herein is that the petitioners having participated in
the selection in question unsuccessfully cannot turn around and challenge the same in view of the
law declared by the Supreme Court in the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla
reported in 1986 (suppl) SCC 285; Chandra Prakash Tiwari vs. Shakuntala Shukla reported in
(2002) 6 SCC 127; H.C. Pradeep Kumar Rai and others vs. Dinesh Kumar Pandey and others,
(Civil Appeal No. 6549 of 2014) nor can they challenge the Government order dated 25.03.1994 as
the same was in existence and was applicable to the recruitment in question prior to their appearing
in the same but was not challenged by them earlier. In this regard they also relied upon the
judgment of the Supreme Court in the case of Jitendra Kumar Singh and another vs. State of U.P.
42 INDIAN LAW REPORTS ALLAHABAD SERIES

and others reported in (2010) 3 SCC 119 as far as validity of paragraph 4 of the said Government
order was concerned.

17. The petitioners on the other hand contend that considering the grounds on which the
select list is being challenged, as, they relate to the manner in which the selection had been held in
violation of the relevant Service Rules namely; U.P. Sub Inspectors and Inspectors (Civil Police)
Service Rules, 2008 and the terms and conditions of recruitment contained in the Instructions
Manual, as also other statutory provisions applicable to the selection, even a participant can
challenge the same.

18. Having heard the parties and perused the record, the court finds that the petitioners
have not challenged the criteria of selection as mentioned in the Service Rules, 2008 nor the terms
and conditions of recruitment mentioned therein or in the Instructions Manual or in the
advertisement. The petitioners have challenged the manner in which the selection has been held
allegedly in violation of the said Service Rules, 2008, Instructions Manual as also the law declared
by the Courts.

19. The decisions relied upon by the respondents to assail the maintainability of these writ
petitions to assert absence of locus standi of the petitioners in this regard apply in cases where
participants raise a challenge to a rule, criteria or procedure known to them prior to appearing in
such selection and where the selection, based thereon, is challenged. This is not the case here. To
illustrate, the petitioners inter-alia are aggrieved by the manner in which horizontal reservation has
been applied while preparing the select list contrary to the Service Rules, 2008, clause 3.3(3) of the
Instructions Manual and the law laid down by the courts. They are aggrieved by the application of
rounding off marks without there being any provision for the same in the Service Rules, 2008 or in
the Instructions Manual. They are aggrieved by selection of unqualified and ineligible persons
contrary to the Rules. They are aggrieved by calling of more than three-times candidates for the
purpose of Group-discussion in violation of Rule 15(f) of the Service Rules, 2008 and Clause 2.7 of
the Instructions Manual. They are aggrieved by lack of transparency and fairness in the selection.
They have also challenged the correctness of answers to questions. They have alleged violation of
Articles 14 and 16 of the Constitution as well as Service Rules, 2008 etc. Many of the illegalities
are alleged to have come to their knowledge only after the result of the selection was declared such
as, those relating to application of horizontal reservation, rounding off the marks, manner of
preparation of selection list etc.

20. These are the grounds on which even a participant to a selection can challenge the same
and there is no question of estoppel or acquiescence as there is no challenge to the procedure or
criteria already prescribed. The challenge in fact is to the manner in which the selection has been
held in violation of settled criteria or procedure.

21. In this regard reference may be made to the judgment of the Supreme Court in the case
of Raj Kumar and another vs. Shakti Raj and others reported in (1997) 9 SCC 527 wherein after
considering the earlier decision of the Supreme Court in the case of Madan Lal vs. State of Jammu
8 All. Abhishek Kumar Singh & Ors. Vs State Of U.P. & Ors.
43
& Kashmir reported in (1985) 3 SCC 486 and other decisions referred therein including some of
those relied by the respondents, the Supreme Court observed that the Government had committed
glaring illegalities in the procedure to get the candidates for examination under 1955 Rules, so also
in the method of selection and exercise of power in taking out from the purview of the Board and
also conduct of selection in accordance with the Rules, therefore, the principle of estoppel by
conduct and acquiescence had no application to the facts in the said case.

22. As far as the challenge to the Government order dated 25.03.1994 is concerned the
maintainability of the writ petition at the behest of petitioners in this respect shall be considered
while considering point no.8.

23. For the reasons aforesaid point no.1 (excluding challenge to Govt. order dated
25.03.1994) is decided in favour of petitioners and against the respondents.

Point No.2

The permissibility of rounding off the percentage of marks for the purpose of eligibility
for the main written examination, based on the marks secured in the preliminary examination,
in the light of the pronouncement of the Supreme Court reported in (2011) 8 SCC 108.

24. In this regard contention of the petitioners was that under Rule 15(f) of the Service
Rules, 2008 and clause 2.5 of the Instructions Manual 50% minimum marks were prescribed as a
benchmark for being successful in the preliminary written examination and there was no provision
for rounding off such marks, therefore, the Board exceeded its authority in doing so and acted in
violation of statutory provisions.

25. The contention of the official respondents on the other hand was that there was no
provision in the Rules to the contrary thereby prohibiting such rounding off, secondly, as has been
mentioned in the written arguments, a minimum of eighteen-times candidates vis-a-vis number of
vacancies were to be selected on the basis of the preliminary written examination whereas without
rounding off, the said number was only about nine-times, therefore, considering the aforesaid, the
Board vide its resolution dated 28.12.2012 and 15.01.2013 decided to round off the marks to two
decimal points and based on such rounding off declared the candidates successful. This decision
was not taken before holding of the selection but after holding the said examination when it was
found that total successful candidates were only nine times of the vacancies, whereas, required
minimum was eighteen-times of vacancies. It was also contended that in the case of some of the
petitioners also, the marks were rounded off. The petitioners never raised this objection when the
result of the said examination was declared. The said examination was only of a preliminary
qualifying nature. Benefit of rounding off marks was extended to all the candidates unanimously
and not to only few. No prejudice was caused to the petitioners.
44 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The recruitment Board admittedly resorted to rounding off the marks obtained in the
pre-qualifying examination. The question is whether such rounding off was permissible and is it
sustainable in law.

27. As already mentioned the terms of recruitment were contained in the Service Rules,
2008 and the Instructions Manual, a copy of which is annexed as part-II of Annexure No.2 to the
writ petition. Rule 15(d) of the Service Rules, 2008 reads as under:-

"15(d). Preliminary Written Test:-

The candidates who are declared successful in the Physical Standard Test under
Clause (c) shall be required to appear an objective type/Preliminary Written Test of qualifying
nature. This test shall carry 200 marks.

It shall comprise three sections, namely General Knowledge (Current Affairs,
History, Geography, Constitution of India, Freedom Struggle etc.) of 100 marks, Numerical Ability
Test of 50 marks and Reasoning of 50 marks. The candidates who secure a minimum fifty percent
marks in the said test shall be declared successful."

28. In view of the above Rule, out of 200 marks prescribed for preliminary written
examination, a candidate had to secure minimum 50% marks in order to be successful and to be
eligible for appearing at the next stage of selection i.e. Physical Efficiency Test.

 Clause 2.5 of the Instructions Manual reads as under:-

"प्रारंभिक भिभित परीक्षा - प्रारंभिक भिभित परीक्षा अहकाारी होगी न्यूनतम ५० प्रभतशत अंक प्राप्त करने वािे अभ्यर्थी ही इस
परीक्षा में सफि घोभित भकये जाएंगे 1इन सफि अभ्यभर्थायों में से प्राप्तांकों की श्रेष्ठता के आधार पर ररभियों की संख्या के अभधकतम 18 गुना अभ्यर्थी ही
शारीररक दक्षता परीक्षा में सम्मभित होने के भिए अहया होंगे1 प्रारंभिक भिभित परीक्षा का पाठ्यक्रम (भनदेश पुभततका भ ंदु ४.१) भनदेश पुभततका में अंभकत
है1

यह परीक्षा वततुभनष्ठ प्रकार की २०० अंकों की होगी भजसमे भनम्नभिभित तीन िंड होंगे1

(१) सामान्य ज्ञान -१०० अंक

(२) संख्यात्मक योग्यता परीक्षा - ५० अंक

(३) ताभकाक परीक्षा -५० अंक "

29. Clause 2.5 of the Instructions Manual also speaks of a minimum 50% marks being the
cut off for qualifying the preliminary written examination. It also states that a maximum number of
successful candidate to the extent of eighteen times the number of vacancies alone shall be eligible
8 All. Abhishek Kumar Singh & Ors. Vs State Of U.P. & Ors.
45
for appearing in the physical efficiency test based on merit obtained in the preliminary
examination.

30. On a bare reading of the aforesaid provisions it is evident that rule 15(f) and clause 2.5
of the Instructions Manual prescribe a minimum of 50% marks, out of 200, as the benchmark. The
provisions of the Rules and the Instructions Manual in this regard are unambiguous. The Service
Rules, 2008 having been made under Section 46 (3) read with Section 2 of the Police Act, 1861,
ergo, they have statutory character and are binding upon the respondents also. The rules do not
contain any provision of rounding off the marks. They do not confer any power on the recruitment
Board to round off the marks nor does the Instruction Manual.

31. In view of the aforesaid factual scenario the decision of the Board to round off the
marks is apparently in the teeth of the statutory provisions and is not sustainable in law. Reference
may be made in this regard to the decisions of the Supreme Court in the case of Orrisa Public
Service Commission vs. Roopashree Chowdhary reported in (2011) 8 SCC 108 and Registrar,
Rajeev Gandhi University of Health Sciences, Bangalore vs. G. Hemlatha reported in (2012) 8
SCC 568 and the West Bengal Joint Entrance Examination Board & others vs. Sarit
Chakraborty reported in J.T. 2015(2) SC 220 which support the view being taken by the court
herein. In Roopashri Chowdhary (supra), after distinguishing the earlier judgments pertaining to
rounding off on the ground that those decisions related to rounding off of posts which obviously
could not exist in a fraction, their Lordships in paragraph 10 and 13 of the report held that when
statutory rule itself prescribed the minimum marks to be obtained there cannot be a question of
relaxing or rounding off in the absence of any rule permitting the same. In the instant case the
respondents have not referred to any rule permitting such relaxation or rounding off.

32. In G. Hemlatha (supra) the examination in question was of a qualifying nature, as in
this case, and their Lordships in paragraph 12 of the judgment held as under:

"No provision of any statute or any rules framed thereunder have been shown to us,
which permit rounding-off of eligibility criteria prescribed for the qualifying examination for
admission to the PG course in M.Sc. (Nursing). When the eligibility criteria is prescribed in a
qualifying examination, it must be strictly adhered to. Any dilution or tampering with it will work
injustice on other candidates. The Division Bench of the High Court erred in holding that the
learned Single Judge was right in rounding-off 54.71% to 55% so as to make Respondent 1 eligible
for admission to the PG course. Such rounding-off is impermissible."

33. In view of above, the contention of respondents that the examination was only of a
qualifying nature and the petitioners, all of whom had qualified, they were not prejudiced in any
manner, is misconceived. what is the relevant is the im-permissibility of such action in law. The
opposite parties have missed the woods for the trees. As a consequence of rounding off by the
Board in the teeth of statutory rules ineligible persons were allowed to appear in the selection,
many of whom are said to have been selected finally, as is mentioned in the rejoinder affidavit of
the petitioners dated 13.12.2015, Annexure No. R.A.1 thereto. As observed in G. Hemlatha
46 INDIAN LAW REPORTS ALLAHABAD SERIES

(supra) any dilution or tampering with respect to eligibility criteria/cut of marks will work injustice
on other candidates. When an eligibility criteria is prescribed it must be strictly adhered. The Board
acted in excess of its jurisdiction.

34. The justification for such action as put forward in the counter affidavit and the written
arguments of the respondents is quite misleading and false as there is no such requirement either in
rule 15(d) or in clause 2.5 of the Instruction Manual that a minimum of candidates eighteen-times
the vacancies are required for further consideration, based on the preliminary written examination.
The word used in Clause 2.5 is 'maximum' of eighteen-times and not 'minimum', that too, from
those selected on the basis of the cut off percentage of marks of 50%, not otherwise. Thus, the
successful candidates who were nine-times the number of vacancies were sufficient as per Rule
15(d) read with clause 2.5 of the Instructions Manual and there was no valid justification for
rounding off marks, based on such reasoning.

35. The prescription of minimum marks in Rule 15(d) of the Service Rules, 2008 and
clause 2.5 of the Instructions Manual clearly prohibited rounding off, therefore, assertion to the
contrary is again misleading and false.

36. As far as rounding of the marks of some of the petitioners is concerned, all of them had
secured minimum 50% of the marks and the total number of successful candidates being less than
eighteen times (9 times) the vacancies, all of them were entitled to appear in the next selection,
therefore, the rounding off, in their case, was superfluous and inconsequential. Rounding off marks
in the case of others who had secured less than 50% marks allowed ineligible person to appear at
the next stage of selection contrary to Rules thereby vitiating the selection. Those who had secured
less than 50% marks in the Preliminary Written Test are liable to be excluded from consideration
for selection/appointment.

Point No.3

Applicability of horizontal reservation for women, dependents of Freedom Fighters and
Ex-servicemen in the selection.

37. In this regard the petitioners contention was that instead of applying horizontal
reservation category-wise (unreserved category, scheduled caste, scheduled tribes and other
backward classes) the respondents put all the candidates selected on the basis of horizontal
reservation in the unreserved category. None of them were placed in the reserved categories, which
was clearly in violation of Section 3(3) of the U.P. Public Services (Reservation of Dependents of
Freedom Fighter, Physically handicapped and Ex-Servicemen) Act, 1993 as also Articles 14 and
16(1) of the Constitution of India and the law declared by the Supreme Court in the case of Indira
Shahney vs. Union of India and others reported in AIR 1993 (3) 427 (paragraphs 430,513,514,733
and 742) and para 3.3 of the Instructions Manual.
8 All. Abhishek Kumar Singh & Ors. Vs State Of U.P. & Ors.
47
38. In this regard they have also stated that this issue, pertaining to this very selection, has
already been considered by a Coordinate Bench of this Court in Writ-A No. 37599 of 2015 (Ashish
Kumar Pandey and others vs. State of U.P. And others) and connected writ petitions wherein, the
manner in which horizontal reservation was applied in the selection in question, has been held to be
illegal and the selection has been quashed on this ground alone. In the said case it has also been
held that women reservation which is also a horizontal reservation had also been applied illegally.
As noted earlier, the judgment in Ashish Kumar Pandey (supra) has been upheld by the Division
Bench on the issue aforesaid.

39. On the other hand respondents' contention is that the application of horizontal
reservation to the selection in question does not suffer from any illegality. Unreserved category
seats for horizontal reservation were required to be first saturated before filling seats of scheduled
caste, scheduled tribes and other backward classes, as, if this was not done, then the candidates of
scheduled caste, scheduled tribes and other backward classes obtaining higher marks than
unreserved category candidates claiming horizontal reservation may not be selected, as had
happened in Constable Recruitment of 2013. The merit list prepared for horizontal reservation
applies to the unreserved category also, as much as it applies to the other categories. As in the
matter of vertical reservation, so also in the case of horizontal reservation, meritorious candidates,
even if, belonging to reserved category are entitled to be included in the merit list of unreserved
category if they fulfill the benchmark. The respondents have placed reliance upon the judgment of
the Supreme Court in the case of Anil Kumar Gupta vs. State of U.P. reported in (1995) 5 SCC
173, especially on paragraphs 18 and 20 thereof. It was also contended that open competition
category i.e. unreserved category, even in the matter of horizontal reservation, is not meant for
upper caste alone but all candidates who have applied are to be considered in this category,
therefore, it includes scheduled caste, scheduled tribes and other backward classes candidates also.
In this regard the respondents placed reliance on paragraph 20 of the judgment in the case of Anil
Kumar Gupta (supra) as also the judgment of the Supreme Court in the case of R.K. Subbarwal vs.
State of Punjab reported in (1995) 2 SCC 745

40. It was contended that first of all the candidates successful on the basis of horizontal
reservation were put in unreserved category and as their percentage was less than the maximum
permissible limit under the said category, therefore, they were all included in the select list of
unreserved category and the occasion to shift them or adjust them under other categories did not
arise. It was denied that women, ex-servicemen etc. had been placed in the unreserved
category/open category en-mass. Out of 740 posts reserved for women, 370 fell in the
open/unreserved category, 165 in scheduled castes category, 15 in scheduled tribes and 200 in other
backward classes category. According to them the State filled up only 260 vacancies under women
quota out of 370 available vacancies in open/unreserved category. It was also contended that
horizontal reservation, after Division Bench judgment in the case of Rajeev Kumar again which
[Special Leave Petition (Civil) No. 32344 of 2014] which was dismissed by the Supreme Court in
the year 2015, is compartmentalized application of horizontal reservation and not an over all
reservation. The application of horizontal reservation does not lead to 50% limit in vertical
reservation being exceeded.
48 INDIAN LAW REPORTS ALLAHABAD SERIES

41. This question has already been considered by a Coordinate Bench in Ashish Pandey's
case (supra) decided on 16.03.2016 wherein application of horizontal reservation has already been
held to be in contravention of the Act, 1993, Government order dated 26.02.1999( Women
reservation) and 09.01.2007, as also the pronouncements of the Supreme Court and this Court.
Based thereon the selection in question has already been quashed with a direction to the State to redraw the select list in the light of the observations/directions contained therein. Against the said
judgment a Special Appeal had been preferred by the State which has been dismissed, as noted
earlier.

42. As already stated above, the terms of recruitment in question were to be regulated by
the Service Rules, 2008. Rule 6 thereof, inter-alia, provides that horizontal reservation shall be in
accordance with the Act, 1993 as amended from time to time and the orders of the Government at
the time of recruitment in force. Rule 29 provides that nothing in this rule shall effect reservation
and other concessions required to be provided for the candidates belonging to scheduled castes,
scheduled tribes and other special categories of person in accordance with the orders of the
Government issued from time to time in this regard. Section 3 of the Act, 1993 reads as under:-

"3. Reservation of vacancies in favour of physically handicapped etc.

[(1) There shall be reserved at the stage of direct recruitment.--

(i) in public services and post two per cent of vacancies for dependents of freedom
fighter and one per cent of vacancies for ex-servicemen;

(ii) in such public services and posts as the State Government may, by notification,
identify one per cent of vacancies each for the persons suffering from.--

(a) blindness or low vision;

(b) hearing impairment; and

(c) loco-motor disability or cerebral palsy]

(2) Omitted 31.07.1997.

(3) The persons selected against the vacancies reserved under sub-section (1) shall
be placed in the appropriate categories to which they belong. For example, if a selected person
belongs to Scheduled Castes category he will be placed in that quota by making necessary
adjustments; if he belongs to other Backward Classes of citizens category, he will be placed in
that quota by making necessary adjustments. If be belongs to Scheduled Tribes category, he will
be placed in that quota by making necessary adjustment; if he belongs to (other Backward
Classes of Citizens), category, he will be placed in that quota by making necessary adjustment.
8 All. Abhishek Kumar Singh & Ors. Vs State Of U.P. & Ors.
49
Similarly, if he belongs to open competition category he will be placed in that category by
making necessary adjustments.

(4) Omitted 31.07.1997.

(5) Where, due to non-availability of suitable candidates any of the vacancies
reserved under sub-section (1) remains unfilled it shall be carried over to the next recruitment."]

43. Sub section 3 of Section 3 of the Act, 1993 clearly indicates that horizontal (special)
reservation shall be made for the aforesaid three categories of candidates namely dependents of
freedom fighter, physically disabled and Ex-servicemen category, by placing them in the
appropriate categories to which they belong i.e. other backward classes category, scheduled castes
and scheduled tribe and open competition category (General category).

44. As far as women reservation is concerned, the same is governed by the Government
orders dated 26.02.1999 and Government order dated 09.01.2007. Women reservation is also
horizontal/special reservation.

45. In the case of Public Service Commission vs. Mamta Bishth and others reported in
AIR 2010 SC 2613 the Supreme Court repelled the contention that a women candidate belonging to
Uttranchal, as she had secured higher marks than the last women candidates in the unreserved/open
competition category, was entitled to be placed in the latter category, even though she had been
selected by horizontal reservation for Uttranchal women. It also observed that the High Court erred
in allowing the writ petition only on the ground that horizontal reservation is also to be applied as
vertical reservation in favour of reserved category candidate. It reiterated the law laid down in
Rejesh Kumar Daria vs Rajasthan Public Service Commission reported in AIR 2010 SC 3127
wherein it was observed as under:-

"Para.(13)..........The second relates to the difference between the nature of vertical
reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under
Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped,
women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical
reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to
such Backward Class, may compete for non- reserved posts and if they are appointed to the non-
reserved posts on their own merit, their number will not be counted against the quota reserved for
respective Backward Class.