# State Of U.P. & Ors v. Ashish Kumar Pandey & Ors

- **Citation:** (2016) 7 ILRA 373
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-29
- **Bench:** V.K. Shukla, Acting Chief Umesh Chandra Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ashish-kumar-pandey-ors-44074
- **Pages:** 20

## Headnote

Seemant Singh, Dilip Kumar Kesharwani, Gaurav Singh, Kripa Shanker Singh, Rajeev Tripathi

Special Appeal-Advertisement dated 19.05.2011 - Sub-Inspector in Civil Police (SICP) - Platoon
Commanders (PC) (PAC) - Horizontal reservation - Women - Ex-servicemen - Dependents of freedom fighter
- Selected under the special/horizontal reservation would be adjusted in the category to which they belong -
Women candidates would have to be adjusted in their respective category to which they belong - Horizontal
reservations cut across the vertical reservations - Candidates shall be adjusted in the category to which they
belong - Percentage would not exceed 50% reservation - Candidate selected under the women quota would
be placed in appropriate category - Reserve category candidate cannot ask for placement against open
category by claiming that they have higher merit - Both the Special Appeals are partly allowed.

Brief background of the case is that an advertisement dated 19.05.2011 was issued by Additional Secretary
(Recruitment) U.P. Police Recruitment and Promotional Board U.P. (hereinafter in short called 'Board') for
filling up post of Sub-Inspector in Civil Police (SICP) and Platoon Commanders (PC) in Provincial Armed
Constabulary PC (PAC). In Writ Petition No.37599 of 2015 (Ashish Kumar Pandey and 24 others vs. State of
U.P. and 29 others), the petitioners-opposite party claimed that they have applied pursuant to the
aforementioned advertisement in question and succeeded at each stage of the proceedings but when the final
374 INDIAN LAW REPORTS ALLAHABAD SERIES

result has been declared by the Board on 25.06.2015, therein in spite of the fact that their names ought to
have been there in the select list, on account of wrong application of the provisions of Horizontal Reservation,
the merit list in question has been totally disturbed and the said action of the Board impelled the petitionersopposite parties to be before this Court. On the presentation of the Writ Petition in question, this Court has
proceeded to entertain the matter and thereafter after exchange of pleadings the writ petition in question has
been allowed and thus giving cause to the State of U.P. as well as private opposite parties to prefer the
Special Appeal as already mentioned above.(Para 4)

Shri P.S. Patwalia, learned Senior Advocate appearing with Shri Chandra Shekhar Singh, Additional Chief
Standing Counsel as well as Shri U.P. Singh, learned Standing Counsel for State of U.P. submitted before this
Court that the learned Single Judge, in the present case, has totally misdirected himself, at the point of time
when he has proceeded to advert to the issues ignoring the bonafide action of State Respondents whereas
women category candidates have been adjusted on the basis of their inter-se merit and open category is
inclusive of all categories and in view of this, there has been no infirmity in the matter of selection, further the
directions that have been so issued are impracticable to be complied with and lastly the Learned Single Judge
without any foundation and basis, even without caring to the fact that private incumbents were not impleaded
as party, has proceeded to award stricture and in view of this, award of stricture and awarding of cost is perse bad. (Para 5)

Shri Anoop Trivedi, Advocate submitted with vehemence that only 261 Female candidates were declared
selected, out of which 19 female candidates were selected in their respective category and as such remaining
242 women candidates were required to be accommodated by taking aid of horizontal reservation and the
contingency that has emerged, in the present case, has rightly been addressed by keeping in view the object
of providing horizontal reservation and to see and ensure that inter-se horizontal reservation candidates, merit
is not breached and as such, opinion that has been formed by learned Single Judge is per-se bad and totally
running counter to the rule

## Text

_Characters 0–39,979 of 64,430. This is a partial read: ask again with offset=39979 for what follows._

7 All. State Of U.P. & Ors. Vs Ashish Kumar Pandey & Ors.
373

(c) In case the University is unable to identify the students who had indulged in mass
copying from those who had not indulged in mass copying, it shall be open to it to hold a reexamination of all the examinees as per the undertaking given before this Court.

(d) The holding of the re-examination of the examinees is without prejudice to any
action which the University is competent to take against the institution in case the charge of mass
copying is found to be established against it.

29. The writ petition stands disposed of with the aforesaid directions.
-------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE V.K. SHUKLA, ACTING CHIEF JUSTICE
THE HON'BLE UMESH CHANDRA SRIVASTAVA, J.

Special Appeal Defective No.- 338 Of 2016
&
Special Appeal No.- 291 Of 2016

State Of U.P. & Ors. ...Appellants
Versus
Ashish Kumar Pandey & Ors. ...Respondents

Counsel for the Appellants:
Chandra Shekhar Singh

Counsel for the Respondents:
Seemant Singh, Dilip Kumar Kesharwani, Gaurav Singh, Kripa Shanker Singh, Rajeev Tripathi

Special Appeal-Advertisement dated 19.05.2011 - Sub-Inspector in Civil Police (SICP) - Platoon
Commanders (PC) (PAC) - Horizontal reservation - Women - Ex-servicemen - Dependents of freedom fighter
- Selected under the special/horizontal reservation would be adjusted in the category to which they belong -
Women candidates would have to be adjusted in their respective category to which they belong - Horizontal
reservations cut across the vertical reservations - Candidates shall be adjusted in the category to which they
belong - Percentage would not exceed 50% reservation - Candidate selected under the women quota would
be placed in appropriate category - Reserve category candidate cannot ask for placement against open
category by claiming that they have higher merit - Both the Special Appeals are partly allowed.

Brief background of the case is that an advertisement dated 19.05.2011 was issued by Additional Secretary
(Recruitment) U.P. Police Recruitment and Promotional Board U.P. (hereinafter in short called 'Board') for
filling up post of Sub-Inspector in Civil Police (SICP) and Platoon Commanders (PC) in Provincial Armed
Constabulary PC (PAC). In Writ Petition No.37599 of 2015 (Ashish Kumar Pandey and 24 others vs. State of
U.P. and 29 others), the petitioners-opposite party claimed that they have applied pursuant to the
aforementioned advertisement in question and succeeded at each stage of the proceedings but when the final
374 INDIAN LAW REPORTS ALLAHABAD SERIES

result has been declared by the Board on 25.06.2015, therein in spite of the fact that their names ought to
have been there in the select list, on account of wrong application of the provisions of Horizontal Reservation,
the merit list in question has been totally disturbed and the said action of the Board impelled the petitionersopposite parties to be before this Court. On the presentation of the Writ Petition in question, this Court has
proceeded to entertain the matter and thereafter after exchange of pleadings the writ petition in question has
been allowed and thus giving cause to the State of U.P. as well as private opposite parties to prefer the
Special Appeal as already mentioned above.(Para 4)

Shri P.S. Patwalia, learned Senior Advocate appearing with Shri Chandra Shekhar Singh, Additional Chief
Standing Counsel as well as Shri U.P. Singh, learned Standing Counsel for State of U.P. submitted before this
Court that the learned Single Judge, in the present case, has totally misdirected himself, at the point of time
when he has proceeded to advert to the issues ignoring the bonafide action of State Respondents whereas
women category candidates have been adjusted on the basis of their inter-se merit and open category is
inclusive of all categories and in view of this, there has been no infirmity in the matter of selection, further the
directions that have been so issued are impracticable to be complied with and lastly the Learned Single Judge
without any foundation and basis, even without caring to the fact that private incumbents were not impleaded
as party, has proceeded to award stricture and in view of this, award of stricture and awarding of cost is perse bad. (Para 5)

Shri Anoop Trivedi, Advocate submitted with vehemence that only 261 Female candidates were declared
selected, out of which 19 female candidates were selected in their respective category and as such remaining
242 women candidates were required to be accommodated by taking aid of horizontal reservation and the
contingency that has emerged, in the present case, has rightly been addressed by keeping in view the object
of providing horizontal reservation and to see and ensure that inter-se horizontal reservation candidates, merit
is not breached and as such, opinion that has been formed by learned Single Judge is per-se bad and totally
running counter to the rule of fair play. Attempt has also been made to demonstrate that directives issued by
this Court if insisted upon to be complied with would lead to an anomalous situation.(Para 6)

Held:(Paras 35,37-41)

1. Appellants are labouring under misconception, inasmuch as, as far as the application of Horizontal
Reservation is concerned, it has to be applied as per its spirit and then the consequence are required to be
seen and on mere apprehension, the view point of learned Single Judge cannot be non suited.

2. Suffice is to mention that even without commenting on their conduct, the case in question could have been
decided. It may be true that arguments advanced on behalf of State may not be finding favour of the Court
but that does not ipso facto mean that same invites stricture, inasmuch as, the State has every right to
defend its action and it is for the Courts to take a final call as to whether the stand taken is correct or
incorrect.

3. In the facts of the present case what we find that strictures have been given to learned Advocate General
and the Senior Officials of the State of U.P. whereas Superior Officials were not impleaded in person.

4. The law on the subject is clear that such strictures should be avoided. See Om Prakash Chautala vs.
Kanwar Bhan 2014 (5) SCC 417, wherein following parameters have been laid down:

"12. At this juncture, it may be clearly stated that singularly on the basis of the aforesaid principle the
disparaging remarks and directions, which are going to be referred to hereinafter, deserve to be annulled but
we also think it seemly to advert to the facet whether the remarks were really necessary to render the
decision by the learned single Judge and the finding recorded by the Division Bench that the observations are
7 All. State Of U.P. & Ors. Vs Ashish Kumar Pandey & Ors.
375
based on the material on record and they do not cause any prejudice, are legally sustainable. As far as finding
of the Division Bench is concerned that they are based on materials brought on record is absolutely unjustified
in view of the following principles laid down in Mohammad Naim (supra): -

"It has been judicially recognized that in the matter of making disparaging remarks against persons or
authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is
relevant to consider (a) whether the party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that
conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part
thereof, to animadvert on that conduct."

5. Consequently, in the present case it was not at all required to pass stricture and comment upon learned
Advocate General and the State functionaries as they may be acting on the dictates of their political masters
as observed by learned Single Judge and in view of this, the strictures made in the order dated 16.03.2016
against the Advocate General and other State Officers/Officials are quashed and will not form part of record.
The other part of the order passed by learned Single Judge be complied with forthwith.With these, both the
Special Appeals are partly allowed

Case Law discussed:·

1. Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217 (Paras 19, 26)
2. Anil Kumar Gupta vs. State of U.P., 1995 (5) SCC 173 (Para 20)
3. Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others, AIR 2007 SC 3127 (Para 22)
4. Public Service Commission Uttaranchal vs. Mamta Bisht & others, AIR 2010 SC 2613 (Para 23)
5. Om Prakash Chautala vs. Kanwar Bhan, (2014) 5 SCC 417 (Para 39)

(Delivered by Hon'ble V.K. Shukla, A.C.J.)

1. In the above metioned Special Appeal in question, as common question of law has been
engaging the attention of this Court, the Special Appeal in question are being decided collectively
and Special Appeal Defective No.338 of 2016 is being treated to be leading case.

 Ref: Delay Condonation Application

2. For the reasons stated in affidavit filed in support of Delay Condonation Application,
which constitutes sufficient cause, application is allowed. Delay of 14 days in filing the Special
Appeal is condoned. Special Appeal is treated to have been filed well within time.

 Ref: Special Appeal

3. Both these Special Appeals are directed against the judgement and order dated
16.03.2016 passed by learned Single Judge in Writ Petition No.37599 of 2015 (Ashish Kumar
Pandey and 24 others vs. State of U.P. and 29 others) connected with other writ petitions, wherein
the Learned Single Judge has proceeded to allow the Writ Petitions with the following directions:

The questions framed, consequently, is answered as follows:
376 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The candidates claiming horizontal reservation (women, exservicemen and
dependent of freedom fighter) cannot be adjusted enmasse in the open category but would have to
be adjusted against their respective social category i.e. OBC, SC and ST;

(ii) the posts remaining vacant due to the shortfall of women candidates cannot be
carried forward to subsequent selection, in view of the specific prohibition in the government order
dated 26 February 1999, however, in respect of the other class of candidates i.e. dependent of
freedom fighters, ex-servicemen, vacant post shall have to be carried forward for two subsequent
selections in terms of sub-section (5) of Section 3 of Act, 1993.

For the reasons and law stated hereinabove, the writ petition deserves to be
allowed. The writ petition is, accordingly, allowed with the following directions:

(i) The select list of SICP and PC (PAC) prepared pursuant to the resultdated 25
June 2015 to the extent seeking to adjust/accommodating candidates under special category viz.
women, ex-servicemen and dependents of freedom fighter in the open category is set aside and
quashed;

(ii) all such special category candidates adjusted in open category shallbe shifted
and adjusted in their respective social category i.e. OBC, SC to which they belong;

(iii) the candidates under special category belonging to open categoryshall be
adjusted/accommodated in the open category;

(iv) all adjustment, directed hereinabove (ii & iii) shall be made frombottom of the
list of each social category by replacing equal number of male candidates;

(v) upon adjustment/accommodation, as directed above (ii, iii & iv), theselection
and consequential appointment of equal number of male candidates shall stand automatically
cancelled/ terminated forthwith;

(vi) in the open category, 262 (340-78) unfulfilled quota of women candidates shall
be filled by male candidates on merit, consequently, they shall be sent for training, and if already
trained, appointment letter shall be issued;

(vii) in the OBC category 27 (200-173) unfulfilled quota of OBC women
candidates, shall be filled by male candidates (OBC) on merit, consequently, they shall be sent for
training and thereafter, appointment letter shall be issued;

(viii) In the SC category 145 (155-10) unfulfilled quota of SC women candidates
shall be filled up by male candidates (SC) on merit as provided under (vi) and (vii);
7 All. State Of U.P. & Ors. Vs Ashish Kumar Pandey & Ors.
377
(ix) candidates belonging to other special class viz. ex-servicemen anddependents
of freedom fighter shall be adjusted in their respective social category in the manner directed
hereinabove (ii), (iii), (iv), (v);

(x) the vacancies, if any, remaining vacant upon adjustment as directed above (ix)
in respect of posts reserved for ex-servicemen and dependents of freedom fighter would be kept
vacant and carried forward to subsequent selection, provided the Board would pass an order in
terms of sub-section (5) of Section 3 of Act, 1993;

(xi) Board upon determination, as directed above (x) arrives at a conclusion that
the posts advertised for ex-servicemen and dependents of freedom fighter is after two selections, in
that eventuality, the vacant posts shall be filled up as directed hereinabove (iii to vii);

(xii) The adjustment/accommodation directed herein above shall bemade by (a)
drawing the select list on merit of each category i.e. OC, OBC, and SC; (ii) drawing the list of
special category candidates to be accommodated category wise. Both the lists and the order passed
by the Board as directed at (x) shall be published/notified on the official website.

(xiii) The directions to be complied within three weeks from today."

4. Brief background of the case is that an advertisement dated 19.05.2011 was issued by
Additional Secretary (Recruitment) U.P. Police Recruitment and Promotional Board U.P.
(hereinafter in short called 'Board') for filling up post of Sub-Inspector in Civil Police (SICP) and
Platoon Commanders (PC) in Provincial Armed Constabulary PC (PAC). In Writ Petition
No.37599 of 2015 (Ashish Kumar Pandey and 24 others vs. State of U.P. and 29 others), the
petitioners-opposite party claimed that they have applied pursuant to the aforementioned
advertisement in question and succeeded at each stage of the proceedings but when the final result
has been declared by the Board on 25.06.2015, therein in spite of the fact that their names ought to
have been there in the select list, on account of wrong application of the provisions of Horizontal
Reservation, the merit list in question has been totally disturbed and the said action of the Board
impelled the petitioners-opposite parties to be before this Court. On the presentation of the Writ
Petition in question, this Court has proceeded to entertain the matter and thereafter after exchange
of pleadings the writ petition in question has been allowed and thus giving cause to the State of
U.P. as well as private opposite parties to prefer the Special Appeal as already mentioned above.

5. Shri P.S. Patwalia, learned Senior Advocate appearing with Shri Chandra Shekhar
Singh, Additional Chief Standing Counsel as well as Shri U.P. Singh, learned Standing Counsel for
State of U.P. submitted before this Court that the learned Single Judge, in the present case, has
totally misdirected himself, at the point of time when he has proceeded to advert to the issues
ignoring the bonafide action of State Respondents whereas women category candidates have been
adjusted on the basis of their inter-se merit and open category is inclusive of all categories and in
view of this, there has been no infirmity in the matter of selection, further the directions that have
been so issued are impracticable to be complied with and lastly the Learned Single Judge without
378 INDIAN LAW REPORTS ALLAHABAD SERIES

any foundation and basis, even without caring to the fact that private incumbents were not
impleaded as party, has proceeded to award stricture and in view of this, award of stricture and
awarding of cost is per-se bad.

6. Shri Anoop Trivedi, Advocate submitted with vehemence that only 261 Female
candidates were declared selected, out of which 19 female candidates were selected in their
respective category and as such remaining 242 women candidates were required to be
accommodated by taking aid of horizontal reservation and the contingency that has emerged, in the
present case, has rightly been addressed by keeping in view the object of providing horizontal
reservation and to see and ensure that inter-se horizontal reservation candidates, merit is not
breached and as such, opinion that has been formed by learned Single Judge is per-se bad and
totally running counter to the rule of fair play. Attempt has also been made to demonstrate that
directives issued by this Court if insisted upon to be complied with would lead to an anomalous
situation.

7. The arguments in question have been countered by Shri G.K. Singh, Senior Advocate,
Shri R.K. Ojha, Senior Advocate, Shri Seemant Singh, Advocate by submitting that in the present
case contrary to the terms and conditions of the recruitment process, horizontal reservation has
been adhered in a designed manner in order to extend benefit to a particular group, who were
already stood benefited by means of adjustment made in their respective categories, and thus
crossing the limit of 50% reservation provided for and horizontal reservation cannot be equated
with vertical reservation and a candidate seeking selection in the horizontal reservation will have to
go in their respective category and category here is clearly referable to the respective social group
i.e. Scheduled Caste (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) and in the
present case, the left over candidates from SC, ST and OBC has been sought to be accommodated
in OC category, whereas same was not at all permissible in law and in view of this, the decision
taken by the Learned Single Judge is rightful one and no interference is required to be made by this
Court in the facts of present case.

8. Shri Pankaj Saksena, Advocate has been permitted to intervene and address the Court.

9. After respective arguments have been advanced, the factual situation that is so emerging,
in the present case, is that advertisement in question has been issued by the Board and the total
number of vacancies of SICP and PC (PAC) and the quota under vertical reservation worked out
has been as follows:-

Sub-Inspector (Civil Police) (SICP)
Total number of vacancies
:
 3698
General Category (OC)
:
1849 (50%)
O.B.C. Category
:
998 (27%)
Schedule Caste Category
:
777 (21%)
Schedule Tribe Category
:
74 (2%)
Plantoon Commander (P.A.C.) (PC PAC)
7 All. State Of U.P. & Ors. Vs Ashish Kumar Pandey & Ors.
379
Total number of vacancies
:
312
General Category (OC)
:
156 (50%)
O.B.C. Category
:
84 (21%)
Schedule Caste Category
:
64 (21%)
Schedule Tribe Category
:
6 (2%)

10. An instruction booklet was also provided wherein the quota meant for
Special/Horizontal Reservation has been provided for as follows:

Dependent of Freedom Fighter
:
2%
Ex-Servicemen
:
5%
Women
:
20%

11. Clause 3.3 of the instruction clearly provides for the candidate selected under the
special/horizontal reservation would be adjusted in the category to which they belong. The clause is
extracted:

"3.3 टिप्पणी:-
(1) यटि कोई अभ्यर्थी एक से अटिक श्रेणी मे आरक्षण का टिावा करता है तो उसे केवल एक ही आरक्षण का लाभ टमलेगा जो
उसके टलए ज्यािा लाभकारी होगा
(2) क्षैटतज (हॉररजॉन्िल) आरक्षण के अिीन चयटनत अभ्यर्थी टजस श्रेणी के होंगे उसे उसी श्रेणी के प्रटत समायोटजत टकया
जायेगा"

12. The petitioners-opposite parties, who in their turn had responded pursuant to the
Advertisement, as per the scheme that has been so quoted for selection, both for SICP and
PC(PAC) were required to qualify (i) Physical Standard Test (ii) Preliminary Written Test (iii)
Physical Efficiency Test (PET) (iv) Main Written Examination (v) Group Discussion.

13. Petitioners-opposite parties claim that they have undergone the examination in question
but their names did not figure in the final merit list that was initially declared on 15.03.2015 but on
account of judicial intervention by means of judgement dated 29.05.2015 passed in Writ Petition
No.67782/2014 (Saket Kumar vs. State of U.P. and others), the list in question was revised and
final result was declared on 26.06.2015. At this juncture, as already mention above, writ petition in
question has been filed and same has been allowed.

14. In order to appreciate the respective arguments that have been so advanced, the relevant
statutory provisions holding the field, that are necessary for adjudication of the matter, are being
looked into.
380 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The State Government in exercise of power conferred under Section 46 read with
Section 2 of the Police Act, 1861, has framed the Uttar Pradesh Sub-Inspector and Inspector (Civil
Police) Service Rules, 2008. Rule 6 thereof provides for reservation, inter alia, in terms of Act,
1993. Rule 6 and 29 are being extracted below:

"6. Reservation.- Reservation for the candidates belonging to the Scheduled
Castes, Scheduled Tribes and other Categories shall be in accordance with the Act and the Uttar
Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters
and Ex-Servicemen) Act, 1993, as amended from time to time, and the orders of the Government in
force at the time of the recruitment. The reservation of National/State level sportsmen shall be in
accordance with the Government orders in force at the time of recruitment. It is further provided
that physically handicapped persons will not be eligible for police services.

29. Savings.- Nothing in these rules shall affect reservations and other concessions
required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes and
other special categories of persons in accordance with the orders of the Government issued from
time to time in this regard."

16. The U.P. Public Services (Reservation for Physically Handicapped, Dependants of
Freedom Fighter and Ex-Servicemen) Act, 1993 (U.P. Act 4 of 1993) provides for special
horizontal reservation to three class of aspirants (i) physically handicapped persons (ii) dependants
of freedom fighters (iii) ex-servicemen. The three classes have been defined in the Act, 1993.
Section 3 provides the percentage of vacancies to be reserved for such class. Horizontal reservation
is provided at the stage of direct recruitment. Sub section (3) would clarify that the reservations
would be horizontal by making adjustment of such candidates in their respective category i.e. OC,
OBC, SC, ST. Sub-clause (3) of Section 3 is extracted:-

"3.(1)...................

(2)............

(3) The persons selected against the vacancies reserved under subsection (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 Scheduled Tribes 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. Similarly if he belongs to open competition
category, he will be placed in that category by making necessary adjustments."

17. Act, 1993 does not provide reservation for women. The reservation for women
candidates is provided in Government Order dated 26 February 1999, which is applicable on all
posts under the State public services at the stage of direct recruitment. Said action of State
Government is an affirmative State action in favour of women for providing them opportunity in
7 All. State Of U.P. & Ors. Vs Ashish Kumar Pandey & Ors.
381
the field of public employment and such affirmative State action is clearly referable to Article 15(3)
of the Constitution, object whereof is to strengthen and improve the status of women. The
reservation is horizontal/special reservation reserving 20% of the vacancies for women candidates.
The principle and methodology for women reservation was reiterated in the subsequent
Government Order dated 9 January 2007, clarifying (i) women would mean women
resident/domicile of Uttar Pradesh, (ii) 'public service' would mean service defined in Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes)
Act, 1994.

18. On conjoint reading of the Government Orders, the inevitable conclusion is as follows:

(i) reservation for women is horizontal/special in nature;

(ii) women candidates would have to be adjusted in their respectivecategory to
which they belong;

(iii) women selected on merit would be counted against the numberof vacancies
reserved for women;

(iv) there being no concept of carry forward of unfulfilled vacanciesfor future
selection, therefore, shortfall of women candidates would have to be filled by that many male
candidates.

19. However, in respect of other class of special reservation as provided for under U.P. Act
No.4 of 1993 i.e. for dependent of freedom fighters, ex-servicemen and handicapped persons, on
nonavailability of suitable candidates, unfulfilled vacancies would have to be carried forward for
two subsequent selections. The principle of adjustment is, however, same i.e. the candidates shall
be adjusted in the category to which they belong. Sub section (5) of Section 3 of Act, 1993 is
extracted:

"(5) Where due to non-availability of suitable candidates any of the vacancies
reserved under sub-section (1) remains unfilled it shall be carried forward for further two selection
years, whereafter it may be treated to be lapsed.

20. Before proceeding to consider the matter on merits, after considering the statutory
provisions holding the field, what is true purport and meaning of horizontal reservation and in what
way and manner it is different from vertical reservation has to be under understood keeping in view
the consideration made by Apex Court from time to time. Apex court in the case of Indra
Sawhney vs. Union of India, 1992 Supp (3) SCC 217 has proceeded to explain the principles of
horizontal reservation as follows:

"....all reservations are not of the same nature. There are two types of reservations,
which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal
382 INDIAN LAW REPORTS ALLAHABAD SERIES

reservations.' The reservations in favour of Scheduled Castes, Scheduled Tribes and Other
Backward Classes ((under Article 16(4)) may be called vertical reservations whereas reservations
in favour of physically handicapped (under Cl. (1) of Art. 16) can be referred to as horizontal
reservations. Horizontal reservations cut across the vertical reservations - what is called
interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour
of physically handicapped persons; this would be a reservation relatable to Cl. (1) of Art. 16. The
persons selected against the quota will be placed in that quota by making necessary adjustments;
similarly, if he belongs to open competition (OC) category, he will be placed in that category by
making necessary adjustments. Even after providing for these horizontal reservations, the
percentage of reservations in favour of backward class of citizens remains - and should remain - the
same."

21. In the State of U.P. various special provisions of reservation as contrasted from social
reservation under Article 16 (4) of the Constitution of India have been made as already discussed in
the earlier part of judgement. The method of implementing the special reservation which is
horizontal in nature, cutting across vertical reservation has been subject matter of consideration
before Apex Court once again in the case of Anil Kumar Gupta vs. State of U.P., 1995 (5) SCc
173. Paragraphs 14 to 18 of the said judgment being relevant are quoted below:

"14. The question is which of the above interpretations is the correct one having
regard to the language employed in the concerned notifications.

15. On a careful consideration of the revised notification of December 17 1994 and
the aforementioned corrigendum issued by the Lucknow University, we are of the opinion that in
view of the ambiguous language employed therein, it is not possible to give a definite answer to the
question whether the horizontal reservations are overall reservations or compartmentalised
reservations. We may explain these two expressions. Where the seats reserved for horizontal
reservations are proportionately divided among the vertical (social) reservations and are not
intertransferable, it would be a case of compartmentalised reservations. We may illustrate what we
say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should
be filled by special reservation candidates; at the same time, the social reservation in favour of
Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation
seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be
allocated to the O.B.C. category; in other words, thirty special category students can be
accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to
O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. Quota
but the remaining twenty seats cannot be transferred to O.C. category (they will be available for
O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite
number of special reservation candidates (56 out of 373) are available in O.C. category or not; the
special reservation would be a water tight compartment in each of the vertical reservation classes
(O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while
allocating the special reservation students to their respective social reservation category, the overall reservation in favour of special reservation categories has yet to be honoured. This means that in
7 All. State Of U.P. & Ors. Vs Ashish Kumar Pandey & Ors.
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the above illustration, the twenty remaining seats would be transferred to O.C. category which
means that the number of special reservation candidates in O.C. category would be 56+20=76.
Further, if no special reservation candidate belonging to S.C. and S.T. is available then the
proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get
transferred to O.C. category. The result would be that 102 special reservation candidates have to be
accommodated in the O.C. category to complete their quota of 112. The converse may also happen,
which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter
se quota between O.C., O.B.C., S.C. And S.T. will not be altered.

16. Now coming to the revised notification of December 17, 1994, it says that
"horizontal reservation be granted in all medical colleges on total seats of all the courses....". These
words are being interpreted in two different ways by the parties; one says it is over-all reservation
while other says it is compartmentalized. Paragraph 2 says that the candidates selected under the
aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled
Tribes/ Other Backward Classes/General to which they belong. For example, if a candidate
dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he
will be adjusted against the seat reserved for Scheduled Castes". This is sought to be read by the
petitioners as affirming that it is a case of compartmentalized reservation. May be or may not be. It
appears that while issuing the said notification, the Government was not conscious of the
distinction between overall horizontal reservation and compartmentalized horizontal reservation. At
any rate, it may not have had in its contemplation the situation like the one which has arisen now.
This is probably the reason that this aspect has not been stated in clear terms.

17. It would have been better - and the respondents may note this for their future
guidance - that while providing horizontal reservations, they should specify whether the horizontal
reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally
correct to presume that the Uttar Pradesh Government was not aware of this distinction between
"overall horizontal reservation", since it appears from the judgment in Swati Gupta that in the first
notification issued by the Government of Uttar Pradesh on May 17, 1994, the thirty percent
reservation for ladies was split up into each of the other reservations. For example, it was stated
against backward classes that the percentage of reservation in their favour was twenty seven
percent but at the same time it was stated that thirty percent of those seats were reserved for ladies.
Against every vertical reservation, a similar provision was made, which meant that the said
horizontal reservation in favour of ladies was to be a "compartmentalized horizontal reservation".
We are of the opinion that in the interest of avoiding any complications and intractable problems, it
would be better that in future the horizontal reservations are compartmentalized in the sense
explained above. In other words, the notification inviting applications should itself state not only
the percentage of horizontal reservation(s) but should also specify the number of seats reserved for
them in each of the social reservation categories, viz., S.T., S.C., O.B.C. And O.C. If this is not
done there is always a possibility of one or the other vertical reservation category suffering
prejudice as has happened in this case. As pointed out herein above, 110 seats out of 112 seats
meant for special reservations have been taken away from the O.C. Category alone - and none from
384 INDIAN LAW REPORTS ALLAHABAD SERIES

the O.B.C. or for that matter, from S.C. Or S.T. It can well happen the other way also in a given
year.

18. Now, coming to the correctness of the procedure prescribed by the revised
notification for filling up the seats, it was wrong to direct the fifteen percent special reservation
seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C.,
S.C. And S.T. quotas). The proper and correct course is to first fill up the O.C. quota (50%) on the
basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third
step would be to find out how many candidates belonging to special reservations have been
selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in
case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied,
the requisite number of special reservation candidates shall have to be taken and
adjusted/accommodated against their respective social reservation categories by deleting the
corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized
horizontal reservation, then the process of verification and adjustment/accommodation as stated
above should be applied separately to each of the vertical reservations. In such a case, the
reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be
satisfied.) Because the revised notification provided for a different method of filling the seats, it has
contributed partly to the unfortunate situation where the entire special reservation quota has been
allocated and adjusted almost exclusively against the O.C. Quota."

22. In the said judgment quoted above concept of horizontal reservation and
compartmentalized reservation has been noticed in detail and it has been clearly ruled that in future
horizontal reservation should be compartmentalized to avoid complication in future and if it is not
done there is always possibility of one or other vertical reservation category suffering, as has
happened in the case on hand.

23. Both these judgements have been dealt with by the Apex Court once again in the case
of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and others reported in AIR,
2007 SC 3127 and view taken has been that horizontal reservation is special reservation in
consonance with the mandate of Article 15(3) of the Constitution of India wherein women selected
on merit within the vertical reservation quota will be counted against the horizontal reservation for
women. Relevant extract of the said judgment is as follows:

"4. Rule 9(3) of the Rajasthan Judicial Service Rules, 1955 ('Rules' for short)
which is relevant, reads as follows :

"Reservation for women candidates shall be 20% categorywise in the direct
recruitment. In the event of non-availability of the eligible and suitable women candidates in a
particular year, the vacancies so reserved for them shall be filled in accordance with the normal
procedure and such vacancies shall not be carried forward to the subsequent year and the
reservation treated as horizontal reservation, i.e. the reservation of women candidates shall be
adjusted proportionately in the respective category to which the women candidate belongs."
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385
5. Before examining whether the reservation provision relating to women, had
been correctly applied, it will be advantageous to refer to the nature of horizontal reservation and
the manner of its application. In Indra Sawhney v. Union of India (1992 Supp (3) SCC 217), the
principle of horizontal reservation was explained thus (para 812) : 1992 AIR SCW 3682

". . . . .all reservations are not of the same nature. There are two types of
reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and
'horizontal reservations.' The reservations in favour of Scheduled Castes, Scheduled Tribes and
Other Backward Classes ((under Article 16(4)) may be called vertical reservations whereas
reservations in favour of physically handicapped (under Cl. (1) of Art. 16) can be referred to as
horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called
interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour
of physically handicapped persons; this would be a reservation relatable to Cl. (1) of Art. 16. The
persons selected against the quota will be placed in that quota by making necessary adjustments;
similarly, if he belongs to open competition (OC) category, he will be placed in that category by
making necessary adjustments. Even after providing for these horizontal reservations, the
percentage of reservations in favour of backward class of citizens remains - and should remain the
same."

A special provision for women made under Art. 15(3), in respect of employment,
is a special reservation as contrasted from the social reservation under Art. 16(4). The method of
implementing special reservation, which is a horizontal reservation, cutting across vertical
reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P. (1995 (5) SCC
173) thus :

". . . . . . . .The proper and correct course is to first fill up the Open Competition
quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e.