# BHARAT SANCHAR NIGAM LIMITED & ANR v. SANDEEP CHOUDHARY & ORS

- **Citation:** [2022] 4 S.C.R. 1002
- **Court:** Supreme Court of India
- **Decided:** 2022-04-28
- **Case number:** Civil Appeal No. 8717 of 2015
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bharat-sanchar-nigam-limited-anr-v-sandeep-choudhary-ors-36059
- **Pages:** 21

## Headnote

Constitution of India, 1950 - Arts. 14, 16 and 142 -
Reservation in employment - Whether in a case where the reserved
category candidates secured more marks than the general category
candidates, such reserved category candidates will have to be first
adjusted in the general category pool and they shall be considered
for appointment in the general category pool or against the
vacancies meant for reserved category candidates - Held: The
reserved category candidates securing higher marks than the last
of the general category candidates are entitled to get seat/post in
unreserved categories - Thus, two candidates belonging to OBC
category, were required to be adjusted against the general category
as they were more meritorious than the last of the general category
candidates - Consequently, after considering their appointments
in the general category, the seats meant for reserved category were
required to be filled in from the remaining reserved category
candidates on merit such as Respondent No. 1 - However, insertion
of the two OBC candidates into general category select list may
unsettle the entire selection process resulting in expulsion of two
general category candidates working since long - Therefore, to
strike a balance, the two candidates from OBC category must be
treated in general category seats and Respondent No. 1 shall be
appointed against the reserved category seats with the seniority
from the date of appointment of general category candidates - At
same time, the candidates already appointed in general category
shall not be removed - Constitution of India - Art. 142.
Words and Phrases - Difference between "horizontal
reservation" and "vertical reservation" explained.
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Dismissing the appeal, the Court
HELD: 1.1. Candidates belonging to any of the vertical
reservation categories are entitled to be selected in "open or
general" category and 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 that they belong. [Para 8.5]
[1018-G-H]
1.2. The reserved category candidates securing higher
marks than the last of the general category candidates are entitled
to get seat/post in unreserved categories. It is further observed
and held that even while applying horizontal reservation, merit
must be given precedence and if the candidates, who belong to
SCs, STs and OBCs have secured higher marks or are more
meritorious, they must be considered against the seats meant
for unreserved candidates. It is further observed that the 19
candidates belonging to reserved categories can as well stake
claim to seats in unreserved categories if their merit and position
in the merit list entitles them to do so. [Para 8.6][1019-A-C]
2. In the present case, the two candidates belonging to
OBC category, were required to be adjusted against the general
category as admittedly they were more meritorious than the last
of the general category candidates appointed and their
appointments could not have been considered against the seats
meant for reserved category. Consequently, after considering their
appointments in the general category, the seats meant for
reserved category were required to be filled in from and amongst
the other remaining reserved category candidates on merit such
as respondent No.1. If such a procedure would have been
followed, the original applicant - respondent No.1 would have
got appointed on merit in the reserved category seats in the
vacancy caused due to the above procedure. However, by
reshuffling and on insertion of two OBC candidates into general
category select list, two general category candidates already
appointed shall have to be expelled and/or shall have to be
removed, who are working since long and it may unsettle the
BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP
CHOUDHARY & ORS.
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entire selection process.

## Text

_Characters 0–39,835 of 45,204. This is a partial read: ask again with offset=39835 for what follows._

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[2022] 4 S.C.R. 1002
1002
BHARAT SANCHAR NIGAM LIMITED & ANR.
v.
SANDEEP CHOUDHARY & ORS.
(Civil Appeal No. 8717 of 2015)
APRIL 28, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Constitution of India, 1950 - Arts. 14, 16 and 142 -
Reservation in employment - Whether in a case where the reserved
category candidates secured more marks than the general category
candidates, such reserved category candidates will have to be first
adjusted in the general category pool and they shall be considered
for appointment in the general category pool or against the
vacancies meant for reserved category candidates - Held: The
reserved category candidates securing higher marks than the last
of the general category candidates are entitled to get seat/post in
unreserved categories - Thus, two candidates belonging to OBC
category, were required to be adjusted against the general category
as they were more meritorious than the last of the general category
candidates - Consequently, after considering their appointments
in the general category, the seats meant for reserved category were
required to be filled in from the remaining reserved category
candidates on merit such as Respondent No. 1 - However, insertion
of the two OBC candidates into general category select list may
unsettle the entire selection process resulting in expulsion of two
general category candidates working since long - Therefore, to
strike a balance, the two candidates from OBC category must be
treated in general category seats and Respondent No. 1 shall be
appointed against the reserved category seats with the seniority
from the date of appointment of general category candidates - At
same time, the candidates already appointed in general category
shall not be removed - Constitution of India - Art. 142.
Words and Phrases - Difference between "horizontal
reservation" and "vertical reservation" explained.
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Dismissing the appeal, the Court
HELD: 1.1. Candidates belonging to any of the vertical
reservation categories are entitled to be selected in "open or
general" category and 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 that they belong. [Para 8.5]
[1018-G-H]
1.2. The reserved category candidates securing higher
marks than the last of the general category candidates are entitled
to get seat/post in unreserved categories. It is further observed
and held that even while applying horizontal reservation, merit
must be given precedence and if the candidates, who belong to
SCs, STs and OBCs have secured higher marks or are more
meritorious, they must be considered against the seats meant
for unreserved candidates. It is further observed that the 19
candidates belonging to reserved categories can as well stake
claim to seats in unreserved categories if their merit and position
in the merit list entitles them to do so. [Para 8.6][1019-A-C]
2. In the present case, the two candidates belonging to
OBC category, were required to be adjusted against the general
category as admittedly they were more meritorious than the last
of the general category candidates appointed and their
appointments could not have been considered against the seats
meant for reserved category. Consequently, after considering their
appointments in the general category, the seats meant for
reserved category were required to be filled in from and amongst
the other remaining reserved category candidates on merit such
as respondent No.1. If such a procedure would have been
followed, the original applicant - respondent No.1 would have
got appointed on merit in the reserved category seats in the
vacancy caused due to the above procedure. However, by
reshuffling and on insertion of two OBC candidates into general
category select list, two general category candidates already
appointed shall have to be expelled and/or shall have to be
removed, who are working since long and it may unsettle the
BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP
CHOUDHARY & ORS.
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entire selection process. Therefore, to strike a balance and to
ensure that the two general category candidates, who are already
appointed will not have to be removed and at the same time,
respondent No.1 - original applicant being a reserved category
candidate also gets accommodated, if he is so appointed, in
exercise of the powers under Article 142 of the Constitution of
India, it is ordered that on reshuffling and on respondent No.1 -
original applicant being appointed now against the reserved
category seats and while the other two candidates belonging to
OBC category, to be treated in the general category seats, two
candidates already appointed and belonging to general category
shall not be removed. However, respondent No.1 shall get the
seniority from the date of appointment of general category
candidates who were having lesser merit than the aforesaid two
reserved category candidates. [Para 9][1019-C-H; 1020-A-D]
Indra Sawhney v. Union of India 1992 Supp (3) SCC
217 : [1992] 2 Suppl. SCR 454 and R.K. Sabharwal v.
State of Punjab (2007) 8 SCC 785 : [2007] 8 SCR 972
- followed.
Union of India v. Ramesh Ram (2010) 7 SCC 234 :
[2010] 6 SCR 698 - distinguished.
Uttaranchal Public Service Commission v. Mamta Bisht
(2010) 12 SCC 204 : [2010] 7 SCR 289; Ritesh R. Sah
v. Y.L. Yamul (1996) 3 SCC 253 : [1996] 2 SCR 695;
Saurav Yadav Vs. State of U.P. (2021) 4 SCC 542 and
Sadhana Singh Dangi v. Pinki Asati (2022) 1 SCALE
534 - relied on.
Rajesh Kumar Daria v. Rajasthan Public Service
Commission (2007) 8 SCC 785 : [2007] 8 SCR 972 -
referred to.
Case Law Reference
[1992] 2 Suppl. SCR 454
followed
Para 2.7
[2007] 8 SCR 972
followed
Para 2.7
[2007] 8 SCR 972
referred to
Para 2.7
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[2010] 6 SCR 698
distinguished
Para 4
[2010] 7 SCR 289
relied on
Para 8.3
[1996] 2 SCR 695
relied on
Para 8.4
(2021) 4 SCC 542
relied on
Para 8.5
(2022) 1 SCALE 534
relied on
Para 8.6
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8717
of 2015.
From the Judgment and Order dated 04.08.2014 of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition
No.14714 of 2013.
Dr. Rajeev Dhavan, Sr. Adv., (Amicus Curiae), Gaurav Agrawal
(Amicus Curiae).
Pradeep Kumar Mathur, Chiranjeev Johri, Ankur Rastogi, Advs.
for the Appellants.
Puneet Jain, Ms. Christi Jain, Umang Mehta, Yogit Kamat, Ms.
Pratibha Jain, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 04.08.2014 passed by the High Court of Rajasthan at
Jodhpur in DBCWP No. 14714/2013, by which the High Court has
dismissed the said writ petition preferred by the appellants herein - Bharat
Sanchar Nigam Limited (hereinafter referred to as "BSNL") and has
confirmed the judgment and order passed by the Central Administrative
Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to as the
"Tribunal") in O.A. No. 159 of 2009 by which the learned Tribunal allowed
the said application preferred by the respondent No.1 herein - original
applicant and directed the appellant herein - BSNL to consider his
candidature if sufficient vacancies exist for placement of the candidates
of Other Backward Class and his candidature shall be considered against
the present or future vacancies on the OBC category after determining
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the vacancies as per rules, the appellant - BSNL has preferred the
present appeal.
2. The facts leading to the present appeal in nutshell are as under:-
2.1 That the private respondent No.1 herein - original applicant
applied for the post of Telecom Technical Assistants (TTAs) in pursuance
to the notification dated 06.10.2008 issued by BSNL for filling up of
TTA posts. The appointment was to be made by way of direct recruitment
by open competitive examination in the Rajasthan Telecom Circle. The
said advertisement further provided that the unit of recruitment shall be
the respective Secondary Switching Area (SSA). The dispute in the
present case is relating to the Ajmer SSA. In the Ajmer SSA, the
vacancies were as follows:-
The recruitment was to be made by conducting a competitive
examination of eligible candidates in an objective type paper of 200 marks.
Clause 13of the advertisement provided that:-
(i)
The minimum Qualifying marks in the paper would be 40%
for the candidates of unreserved category candidate, and
(ii)
33% for candidates of reserved category.
It so happened that in the exam which was conducted no person
from general category candidate got more than 40% marks. However,
four candidates from OBC category obtained more than 33% marks.
The marks obtained by four OBC category candidates are as under:-
OBC selected candidates

Name
Marks (out of 200)
Percentage
1.
Alok Kumar Yadav
79.75
39.87
2.
Dinesh Kumar
77
38.5
3.
Alka Saini
72.5
36.25
4.
Ved Prakash
68.5
34.25
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The original applicant - respondent No.1 herein, who got 68.25
marks was placed at Waiting List No.1 in the OBC category.
2.2 On 01.06.2009, BSNL issued a circular/letter to all heads of
telecom circles, inter alia, stating that there has been poor pass percentage
of candidates in the TTA examination and number of vacancies had
remained unfilled. There was acute shortage of manpower and hence it
was decided to relax the qualifying marks by 10% for all candidates.
Accordingly, the qualifying marks were refixed at 30% for general
category and 23% for reserved category. Clauses (iii) & (v) of the said
letter provides as follows:-
(iii)
Successful candidates, qualifying through normal standards
in aggregate will rank enblock senior to those qualifying
through relaxed standard in the merit list. However, the
provisions of the Recruitment Rules will determine their
inter-se seniority in the cadre.
(v)
The Circles who have already announced the result but
have not got adequate number of successful candidates,
may further extend the merit/waiting list as per above
instructions.
2.3 After relaxation of minimum marks with 30% of general
category candidates, the following five candidates in general category
became eligible for appointment:-
OC selected candidates
2.4 However, it so happened that one Alok Kumar Yadav and
Alka Saini, who were found to be more meritorious than the general
category candidates subsequently were found eligible to be appointed
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against the reserved category - OBC. Therefore, the respondent No.1
herein - original applicant, who was wait listed No.1 in OBC category,
approached the Tribunal by way of application being O.A. No. 159 of
2009 for a direction to prepare a fresh list for all candidates based on
relaxed standard and act on the said combined merit list. It was, inter
alia, pleaded that there cannot be two cut-off marks for a single selection.
It was submitted that there was an unreasonable classification by
providing another set of cut-off marks and the action was discriminatory
and violative of Articles 14 and 16 of the Constitution of India.
2.5 It was the case on behalf of the original applicant that those
two candidates belonging to OBC category, who were having more merit
were required to be adjusted against the general category seats and
consequently the seats reserved for OBC category were required to be
filled in from remaining reserved category candidates on merit.
2.6 The Tribunal, after noticing the judgment of the Rajasthan
High Court dated 09.02.2011 in S.B. Civil Writ Petition No.4948 of 2009,
disposed of the O.A. and directed BSNL to consider the candidature of
the original applicant - respondent No.1 herein, if sufficient vacancies
exist for placement of the candidates of OBC and further his candidature
shall be considered against the present and future vacancies on OBC
category.
2.7 Feeling aggrieved and dissatisfied with the judgment and order
passed by the Tribunal, BSNL preferred the writ petition before the
High Court and by the impugned judgment and order and by relying
upon the decisions of this Court in the case of Indra Sawhney Vs.
Union of India, 1992 Supp (3) SCC 217; R.K. Sabharwal Vs. State
of Punjab, (2007) 8 SCC 785; and Rajesh Kumar Daria Vs.
Rajasthan Public Service Commission, (2007) 8 SCC 785 has
dismissed the said writ petition by observing that the BSNL should have
given appointment to Mr. Alok Kumar Yadav and Mr. Dinesh Kumar
(candidates belonging to OBC category) against the vacancies which
were not reserved vertically in the event of shuffling the said two persons
to general category (admittedly both the aforesaid candidates have
secured and/or have more merit than the general category candidates,
who were appointed). The High Court has further observed that
consequently the original applicant could have been selected against the
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vacancies reserved for the OBC. By observing so, the High Court has
dismissed the writ petition. Hence, BSNL has preferred the present appeal.
3. We have heard Dr. Rajeev Dhavan alongwith Shri Gaurav
Agrawal, learned Amicus Curiae, Shri Pradeep Kumar Mathur, learned
counsel appearing on behalf of the BSNL and Shri Puneet Jain, learned
counsel appearing on behalf of respondent No.1.
4. Learned counsel appearing on behalf of BSNL has heavily
relied upon the decision of this Court in the case of Union of India Vs.
Ramesh Ram, (2010) 7 SCC 234 and submitted that as observed and
held by this Court, in a case, where reserved category candidates are
selected on merit and placed in the list of general category candidates,
they can be adjusted against reserved category vacancies in order to get
a service of higher choice at the time of service allocation. Learned
counsel appearing on behalf of BSNL has heavily relied upon paragraph
42 of the aforesaid decision.
4.1 Relying upon the above decision, it is vehemently submitted
by the learned counsel appearing on behalf of the BSNL that the aforesaid
two candidates namely Mr. Alok Kumar Yadav and Mr. Dinesh Kumar
were rightly considered in the reserved category pool.
4.2 It is submitted that if the view taken by the High Court is
accepted, in that case, the two OBC candidates, who secured more
marks than the relaxed cut-off marks of general category candidates
are adjusted in general category and thereby vacancies so created in the
OBC category would have to be filled in by respondent No.1 herein -
original applicant which would result in shuffling of the candidates and
would unsettle the entire selection process. It is further submitted by
learned counsel appearing on behalf of BSNL that the High Court has
failed to take note of the fact that vacancies in the general category
were only five and they were already filled in and therefore, insertion of
two OBC candidates into the general category select list would expel
two already selected candidates of general category who had secured
undisputedly more marks than the original claimant thereby unsettling
the entire selection process.
4.3 Making above submissions and relying upon the above
decisions, it is prayed to allow the present appeal.
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5. Dr. Rajeev Dhavan, learned Senior counsel, assisted by Shri
Gaurav Agrawal, learned Amicus Curiae and Shri Puneet Jain, learned
counsel appearing on behalf of respondent No.1 have vehemently
submitted that as such the controversy in the matter is squarely covered
by the decision of this Court in the case of Indra Sawhney (supra). It
is submitted that the reserved category candidates having obtained more
marks than the last candidate in general category candidates will have
to be adjusted against the general category quota and they were required
to be considered in the general category pool, thereby the remaining
candidates belonging to the reserved category were required to be
appointed against the quota meant for reserved category. It is submitted
that in the present case, those two candidates, namely, Mr. Alok Kumar
Yadav and Mr. Dinesh Kumar, secured more marks than the last of the
general category candidates selected and appointed and therefore those
two candidates were required to be adjusted and/or considered against
the general category pool. The BSNL considered the appointment of the
aforesaid two candidates in the reserved category and thereby caused a
loss to the reserved category candidates, who could have been appointed
if the aforesaid two candidates belonging to the reserved category would
have been adjusted and/or appointed in the general pool. It is submitted
therefore that the High Court has rightly directed to consider the
candidature of respondent No.1 herein - original applicant, being a wait
listed candidate in the reserved category.
6. Heard the learned counsel for the respective parties at length.
7. The short question which is posed for the consideration of this
Court is:-
"Whether in a case where the reserved category candidates
secured more marks than the general category candidates, such
reserved category candidates will have to be first adjusted in the
general category pool and they shall be considered for appointment
in the general category pool or against the vacancies meant for
reserved category candidates?
8. While considering the aforesaid issue, few decisions of this
Court on the above point are required to be referred to.
8.1 In the case of Indra Sawhney (supra) in paragraph 812, it is
observed and held as under:-
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"812. We are also of the opinion that this rule of 50% applies
only to reservations in favour of backward classes made under
Article 16(4). A little clarification is in order at this juncture : 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 clause (1) of Article 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 clause (1) of Article 16. The persons
selected against this quota will be placed in the appropriate
category; if he belongs to SC category he 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. This is how these reservations are worked out in several
States and there is no reason not to continue that procedure."
8.2 In Rajesh Kumar Daria (supra), in paragraphs 8 to 11, it is
observed and held as under:-
"8. We may also refer to two related aspects before considering
the facts of this case. The first is about the description of horizontal
reservation. For example, if there are 200 vacancies and 15% is
the vertical reservation for SC and 30% is the horizontal reservation
for women, the proper description of the number of posts reserved
for SC, should be:"For SC : 30 posts, of which 9 posts are for
women." We find that many a time this is wrongly described
thus:"For SC : 21 posts for men and 9 posts for women, in all 30
posts." Obviously, there is, and there can be, no reservation
category of "male" or "men".
9. The second relates to the difference between the nature of
vertical reservation and horizontal reservation. Social reservations
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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. 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. (Vide Indra Sawhney [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217], R.K.
Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union of
India v. Virpal Singh Chauhan [ (1995) 6 SCC 684] and Ritesh R.
Sah v. Y.L. Yamul [(1996) 3 SCC 253]. 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. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for
women is four), 19 SC candidates shall have to be first listed in
accordance with merit, from out of the successful eligible
candidates. If such list of 19 candidates contains four SC
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woman candidates, then there is no need to disturb the list by
including any further SC woman candidate. On the other hand,
if the list of 19 SC candidates contains only two woman
candidates, then the next two SC woman candidates in
accordance with merit, will have to be included in the list and
corresponding number of candidates from the bottom of such
list shall have to be deleted, so as to ensure that the final 19
selected SC candidates contain four woman SC candidates.
(But if the list of 19 SC candidates contains more than four
woman candidates, selected on own merit, all of them will
continue in the list and there is no question of deleting the excess
woman candidates on the ground that "SC women" have been
selected in excess of the prescribed internal quota of four.)
10. In this case, the number of candidates to be selected under
general category (open competition), were 59, out of which 11
were earmarked for women. When the first 59 from among the
261 successful candidates were taken and listed as per merit, it
contained 11 woman candidates, which was equal to the quota
for "general category women". There was thus no need for any
further selection of woman candidates under the special
reservation for women. But what RPSC did was to take only the
first 48 candidates in the order of merit (which contained 11
women) and thereafter, fill the next 11 posts under the general
category with woman candidates. As a result, we find that among
59 general category candidates in all 22 women have been selected
consisting of eleven woman candidates selected on their own merit
(candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the
selection list) and another eleven (candidates at Sl. Nos. 54, 61,
62, 63, 66, 74, 75, 77, 78, 79 and 80 of the selection list) included
under reservation quota for "general category women". This is
clearly impermissible. The process of selections made by RPSC
amounts to treating the 20% reservation for women as a vertical
reservation, instead of being a horizontal reservation within the
vertical reservation.
11. Similarly, we find that in regard to 24 posts for OBC, 19
candidates were selected by RPSC in accordance with merit from
among OBC candidates which included three woman candidates.
Thereafter, another five women were selected under the category
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of "OBC women", instead of adding only two which was the
shortfall. Thus there were in all 8 women candidates among the
24 OBC candidates found in the selection list. The proper course
was to list 24 OBC candidates as per the merit and then find out
number of woman candidates among them, and only fill the
shortfall to make up the quota of five for women."
(emphasis supplied)"
8.3 In the case of Uttaranchal Public Service Commission
Vs. Mamta Bisht, (2010) 12 SCC 204, the High Court took the view
that the reserved category candidate, on her own merit was entitled to
be considered in the general category and she could not have been counted
against the reserved category. While upholding the judgment of the High
Court, this Court observed and held in paragraphs 3, 4, 13 and 15 as
under:-
"3. Out of 42 posts, 26 were filled up by general category and
16 by reserved category candidates. Some women candidates
stood selected in the general category while others had been given
the benefit of horizontal reservation being residents of Uttaranchal.
Respondent 1, being aggrieved preferred Writ Petition No. 780 of
2003 (M/B) in the High Court of Uttaranchal seeking quashment
of select list dated 31-7-2003 mainly on the ground that women
candidates belonging to Uttaranchal had secured marks making
them eligible to be selected in the general category and had it
been done so, Respondent 1 could have been selected in the
reserved category being a woman of Uttaranchal. It had also
been pleaded in the petition that some of the women candidates
who not only claimed the benefit of horizontal reservation but
have been selected giving the said benefit, did not submit their
respective certificate of domicile at the time of filling up the
application forms but they produced the said certificate at a later
stage and it was accepted.
4. The High Court accepted the first submission of Respondent
1 after examining the record of selection and came to the
conclusion that the last selected woman candidate who was given
the benefit of horizontal reservation for Uttaranchal women had
secured marks higher than the last selected candidate in the general
category. Thus, the said candidate ought to have been appointed
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against the general category vacancy and Respondent 1 ought to
have been offered the appointment giving her the benefit of horizontal
reservation for Uttaranchal women. Hence, these appeals.
***
13. In fact, the High Court allowed the writ petition only on
the ground that the horizontal reservation is also to be applied as
vertical reservation in favour of reserved category candidates
(social) as it held as under:
'In view of the above, Neetu Joshi (Sl. No. 9, Roll No. 12320)
has wrongly been counted by Respondent 3/Commission against
five seats reserved for Uttaranchal Women General Category
as she has competed on her own merit as general candidate
and as the fifth candidate the petitioner should have been counted
for Uttaranchal Women General Category seats.'
Admittedly, the said Neetu Joshi has not been impleaded as a
respondent. It has been stated at the Bar that an application for
impleadment had been filed but there is nothing on record to show
that the said application had ever been allowed. Attempt had been
made to implead some successful candidates before this Court
but those applications stood rejected by this Court.
14. The view taken by the High Court on application of
horizontal reservation is contrary to the law laid down by this
Court in Rajesh Kumar Daria v. Rajasthan Public Service
Commission [(2007) 8 SCC 785], wherein dealing with a similar
issue this Court held as under : (SCC pp. 790-91, para 9)
'9. The second relates to the difference between the nature
of vertical reservation and horizontal reservation. Social
reservations in favour of SCs, STs and OBCs 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. Therefore, if the number of SC candidates,
BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP
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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. (Vide Indra Sawhney v.
Union of India, 1992 Supp (3) SCC 217], R.K. Sabharwal v.
State of Punjab [(1995) 2 SCC 745], Union of India v. Virpal
Singh Chauhan [(1995) 6 SCC 684] and Ritesh R. Sah v. Y.L.
Yamul [(1996) 3 SCC 253].) 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.'
15. In view of the above, it is evident that the judgment and
order of the High Court is not in consonance with the law laid
down by this Court in Rajesh Kumar Daria [(2007) 8 SCC 785].
The judgment and order impugned herein is liable to be set aside
and all the consequential orders become unenforceable and
inconsequential. Thus, the appeals succeed and are allowed. The
judgment and order of the High Court dated 26-10-2005 passed
in Mamta Bisht v. State [WPMB No. 780 of 2003, order dated
26-10-2005 (Utt)] is hereby set aside. No costs."
(emphasis in original)
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8.4 In Ritesh R. Sah v. Y.L. Yamul, (1996) 3 SCC 253 after
noticing the Larger Bench decision of this Court in the case of Indra
Sawhney (supra) and R.K. Sabharwal (supra), it is observed in
paragraph 13 to 16 as under:
"13. There cannot be any dispute with the proposition that
if a candidate is entitled to be admitted on the basis of his own
merit then such admission should not be counted against the
quota reserved for Scheduled Caste or Scheduled Tribe or any
other reserved category since that will be against the
constitutional mandate enshrined in Article 16(4).
14. In Indra Sawhney v. Union of India [1992 Supp (3) SCC
217] commonly known as Mandal case, this Court held thus :
(SCC p. 735, para 811)
'811. In this connection it is well to remember that the
reservations under Article 16(4) do not operate like a communal
reservation. It may well happen that some members belonging
to, say, Scheduled Castes get selected in the open competition
field on the basis of their own merit; they will not be counted
against the quota reserved for Scheduled Castes; they will be
treated as open competition candidates.'
15. In R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745]
the Constitution Bench of this Court considered the question of
appointment and promotion and roster points vis-à-vis reservation
and held thus : (SCC p. 750, para 4)
'4. When a percentage of reservation is fixed in respect of
a particular cadre and the roster indicates the reserve points, it
has to be taken that the posts shown at the reserve points are
to be filled from amongst the members of reserved categories
and the candidates belonging to the general category are not
entitled to be considered for the reserved posts. On the other
hand the reserved category candidates can compete for the
non-reserved posts and in the event of their appointment to the
said posts their number cannot be added and taken into
consideration for working out the percentage of reservation.
Article 16(4) of the Constitution of India permits the State
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Government to make any provision for the reservation of
appointments or posts in favour of any Backward Class of
citizens which, in the opinion of the State is not adequately
represented in the Services under the State. It is, therefore,
incumbent on the State Government to reach a conclusion that
the Backward Class/Classes for which the reservation is made
is not adequately represented in the State Services. While doing
so the State Government may take the total population of a
particular Backward Class and its representation in the State
Services. When the State Government after doing the necessary
exercise makes the reservation and provides the extent of
percentage of posts to be reserved for the said Backward Class
then the percentage has to be followed strictly. The prescribed
percentage cannot be varied or changed simply because some
of the members of the Backward Class have already been
appointed/promoted against the general seats. As mentioned
above the roster point which is reserved for a Backward
Class has to be filled by way of appointment/promotion of
the member of the said class. No general category candidate
can be appointed against a slot in the roster which is reserved
for the Backward Class. The fact that considerable number
of members of a Backward Class have been appointed/
promoted against general seats in the State Services may be
a relevant factor for the State Government to review the
question of continuing reservation for the said class but so
long as the instructions/rules providing certain percentage of
reservations for the Backward Classes are operative the same
have to be followed. Despite any number of appointees/
promotees belonging to the Backward Classes against the
general category posts the given percentage has to be provided
in addition.'
16. In Union of India v. Virpal Singh Chauhan [(1995) 6
SCC 684] (SCC at p. 705) it has been held that 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."
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8.5 In a more recent decision this Court in the case of Saurav
Yadav Vs. State of U.P., (2021) 4 SCC 542 after referring to all the
earlier judgments on vertical reservation has observed and held that it is
well settled that candidates belonging to any of the vertical reservation
categories are entitled to be selected in "open or general" category and
it is also further observed 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 that they belong.
8.6 Similar view has been expressed by this Court in another recent
decision of this Court in the case of Sadhana Singh Dangi Vs. Pinki
Asati, (2022) 1 SCALE 534. By the said decision, it is reiterated that
the reserved category candidates securing higher marks than the last of
the general category candidates are entitled to get seat/post in unreserved
categories. It is further observed and held that even while applying
horizontal reservation, merit must be given precedence and if the
candidates, who belong to SCs, STs and OBCs have secured higher
marks or are more meritorious, they must be considered against the
seats meant for unreserved candidates. It is further observed that the
candidates belonging to reserved categories can as well stake claim to
seats in unreserved categories if their merit and position in the merit list
entitles them to do so.
9. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, it is noted that the aforesaid
two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,
belonging to OBC category, were required to be adjusted against the
general category as admittedly they were more meritorious than the last
of the general category candidates appointed and that their appointments
could not have been considered against the seats meant for reserved
category. Consequently, after considering their appointments in the general
category, the seats meant for reserved category were required to be
filled in from and amongst the other remaining reserved category
candidates on merit such as respondent No.1 herein. If such a procedure
would have been followed, the original applicant - respondent No.1 would
have got appointed on merit in the reserved category seats in the vacancy
caused due to the above procedure. Therefore, as such the High Court
has not committed any error in observing and holding that the aforesaid
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two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,
will have to be adjusted against the general category candidates and
accordingly respondent No.1 being a reserved category candidate and
being at Sr. No.1 in the waiting list of reserved category was to be
appointed.
However, at the same time, it cannot be disputed that by reshuffling
and on insertion of two OBC candidates into general category select list,
two general category candidates already appointed shall have to be
expelled and/or shall have to be removed, who are working since long
and it may unsettle the entire selection process.