# SAURAV YADAV & ORS v. STATE OF UTTAR PRADESH & ORS

- **Citation:** [2020] 11 S.C.R. 281
- **Court:** Supreme Court of India
- **Decided:** 2020-12-18
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/saurav-yadav-ors-v-state-of-uttar-pradesh-ors-34502
- **Pages:** 64

## Headnote

Service Law - Selection - Reservation - Horizontal
reservation and vertical reservation - Two candidates, one belonging
to the OBC-Female category and another belonging to the SCFemale category participated in the selection process in 2013 for
filling up posts of constables in Uttar Pradesh police - They had
secured 276.5949 and 233.1908 marks respectively - The cut-off
of female (general category) was 274.8928 - They both claimed
selection in General Female category - Their claim was rejected by
the State - The State relied on order dated 16.03.2016 passed by
the High Court of Allahabad which held that "if the special category
candidate belonging to OBC category scored higher marks than
his /her counterpart adjusted in open category, cannot be shifted
to open category" - Similar view was adopted by the Madhya
Pradesh High Court (view of High Court of Allahabad and Madhya
Pradesh may be termed as 'second view') - However, the High
Courts of Rajasthan, Bombay, Uttarakhand and Gujarat (termed
as 'first view') have adopted the view that "Reservation prescribed
may be 'vertical' or 'horizontal' if it relates to open category, the
candidate belonging to backward class cannot be precluded from
competing for the said posts on their own merit with rest of the
candidate" - Held: The 'second view' is neither based on any
authoritative pronouncement by Supreme Court nor does it lead to
a situation where the merit is given precedence - Subject to any
permissible reservations i.e. either Social (Vertical) or Special
(Horizontal), opportunities to public employment and selection of
candidates must purely be based on merit - Any selection which
results in candidates getting selected against Open/General category
with less merit than the other available candidates will certainly be
opposed to principles of equality - There can be special dispensation
when it comes to candidates being considered against seats or quota
meant for reserved categories and in theory it is possible that a
[2020] 11 S.C.R. 281
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[2020] 11 S.C.R.
more meritorious candidate coming from Open/General category
may not get selected - But, the converse can never be true and will
be opposed to the very basic principles which have all the while
been accepted by Supreme Court - Any view or process of
interpretation which leads to incongruity must be rejected - The
'second view' will lead to irrational results - Therefore, the 'second
view' is dissapproved and rejected - The 'first view' which weighed
with the High Courts of Rajasthan, Bombay, Uttarakhand and
Gujarat is correct and rational - In the instant case, all candidates
coming from 'OBC Female Category' who had secured more marks
than 274.8929, i.e. the marks secured by the last candidate
appointed in 'General Category Female' must be offered employment
as constables in Uttar Pradesh Police - Since, it has been accepted
that none of the candidates coming from 'SC Female Category' had
secured more marks than 274.8298, the claims of the Applicant no.2
and all similarly situated candidates are rejected - Constitution of
India - Reservations.
Constitution of India - Reservations - Horizontal reservation
and vertical reservation - Held: Reservations, both vertical and
horizontal, are method of ensuring representation in public services
- These are not to be seen as rigid "slots", where a candidate's
merit, which otherwise entitles her to be shown in the open general
category, is foreclosed - Doing so, would result in a communal
reservation, where each social category is confined within the extent
of their reservation, thus negating merit - The open category is
open to all, and the only condition for a candidate to be shown in it
is merit, regardless of whether reservation benefit of either type is
available to her or him.
Constitution of India - Reservations - Difference between
Horizontal reservation and vertical reservation - discussed.
Partly allowing the Miscellaneous Applica

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SAURAV YADAV & ORS.
v.
STATE OF UTTAR PRADESH & ORS.
(Miscellaneous Application No.2641 of 2019)
In
(Special Leave Petition (Civil) No. 23223 of 2018)
DECEMBER 18, 2020
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
HRISHIKESH ROY, JJ.]
Service Law - Selection - Reservation - Horizontal
reservation and vertical reservation - Two candidates, one belonging
to the OBC-Female category and another belonging to the SCFemale category participated in the selection process in 2013 for
filling up posts of constables in Uttar Pradesh police - They had
secured 276.5949 and 233.1908 marks respectively - The cut-off
of female (general category) was 274.8928 - They both claimed
selection in General Female category - Their claim was rejected by
the State - The State relied on order dated 16.03.2016 passed by
the High Court of Allahabad which held that "if the special category
candidate belonging to OBC category scored higher marks than
his /her counterpart adjusted in open category, cannot be shifted
to open category" - Similar view was adopted by the Madhya
Pradesh High Court (view of High Court of Allahabad and Madhya
Pradesh may be termed as 'second view') - However, the High
Courts of Rajasthan, Bombay, Uttarakhand and Gujarat (termed
as 'first view') have adopted the view that "Reservation prescribed
may be 'vertical' or 'horizontal' if it relates to open category, the
candidate belonging to backward class cannot be precluded from
competing for the said posts on their own merit with rest of the
candidate" - Held: The 'second view' is neither based on any
authoritative pronouncement by Supreme Court nor does it lead to
a situation where the merit is given precedence - Subject to any
permissible reservations i.e. either Social (Vertical) or Special
(Horizontal), opportunities to public employment and selection of
candidates must purely be based on merit - Any selection which
results in candidates getting selected against Open/General category
with less merit than the other available candidates will certainly be
opposed to principles of equality - There can be special dispensation
when it comes to candidates being considered against seats or quota
meant for reserved categories and in theory it is possible that a
[2020] 11 S.C.R. 281
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more meritorious candidate coming from Open/General category
may not get selected - But, the converse can never be true and will
be opposed to the very basic principles which have all the while
been accepted by Supreme Court - Any view or process of
interpretation which leads to incongruity must be rejected - The
'second view' will lead to irrational results - Therefore, the 'second
view' is dissapproved and rejected - The 'first view' which weighed
with the High Courts of Rajasthan, Bombay, Uttarakhand and
Gujarat is correct and rational - In the instant case, all candidates
coming from 'OBC Female Category' who had secured more marks
than 274.8929, i.e. the marks secured by the last candidate
appointed in 'General Category Female' must be offered employment
as constables in Uttar Pradesh Police - Since, it has been accepted
that none of the candidates coming from 'SC Female Category' had
secured more marks than 274.8298, the claims of the Applicant no.2
and all similarly situated candidates are rejected - Constitution of
India - Reservations.
Constitution of India - Reservations - Horizontal reservation
and vertical reservation - Held: Reservations, both vertical and
horizontal, are method of ensuring representation in public services
- These are not to be seen as rigid "slots", where a candidate's
merit, which otherwise entitles her to be shown in the open general
category, is foreclosed - Doing so, would result in a communal
reservation, where each social category is confined within the extent
of their reservation, thus negating merit - The open category is
open to all, and the only condition for a candidate to be shown in it
is merit, regardless of whether reservation benefit of either type is
available to her or him.
Constitution of India - Reservations - Difference between
Horizontal reservation and vertical reservation - discussed.
Partly allowing the Miscellaneous Application No. 2641 and
I.A.No. 25611 of 2019 and dismissing the W.P.(C) No. 237 of
2020, the Court
HELD: Per UDAY UMESH LALIT, J. [for himself,
S. RAVINDRA BHAT and HRISHIKESH ROY, JJ.]
1. The second view (view of High Court of Allahabad and
Madhya Pradesh) is neither based on any authoritative
pronouncement by this Court nor does it lead to a situation where
the merit is given precedence. Subject to any permissible
reservations i.e. either Social (Vertical) or Special (Horizontal),
opportunities to public employment and selection of candidates
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must purely be based on merit. Any selection which results in
candidates getting selected against Open/General category with
less merit than the other available candidates will certainly be
opposed to principles of equality. There can be special
dispensation when it comes to candidates being considered
against seats or quota meant for reserved categories and in theory
it is possible that a more meritorious candidate coming from Open/
General category may not get selected. But the converse can
never be true and will be opposed to the very basic principles
which have all the while been accepted by this Court. Any view
or process of interpretation which will lead to incongruity, must
be rejected. [Para 31][333-D-G]
2. The second view will thus not only lead to irrational
results where more meritorious candidates may possibly get
sidelined as indicated above but will, of necessity, result in
acceptance of a postulate that Open/General seats are reserved
for candidates other than those coming from vertical reservation
categories. Such view will be completely opposed to the long
line of decisions of this Court. [Para 32][333-G-H]
3. This Court, therefore, does not approve the second view
and reject it. The first view which weighed with the High Courts
of Rajasthan, Bombay, Uttarakhand and Gujarat is correct and
rational. [Para 33][334-A]
4. It must be stated here that the submissions advanced by
the Advocate General for Uttar Pradesh as recorded in the order
dated 16.03.2016 before the Single Judge of the High Court were
absolutely correct. The Single Judge and the Division Bench of
the High Court completely erred in rejecting the stand taken on
behalf of the State. It appears that after such rejection, the
Procedure laid down for completing the recruitment exercise as
referred to in the order dated 22.02.2019 passed by the Division
Bench of the High Court had stated in step 4.1 that candidate not
belonging to Scheduled Castes, Scheduled Tribes and Other
Backward Classes category alone would be considered against
general category. Said Procedure and especially step 4.1 was
erroneous but was perhaps guided by the declaration issued by
the High Court earlier. On the other hand, the stand taken by
the Advocate General for Maharashtra as recorded by the High
Court of Bombay in Charushila vs. State of Maharashtra 2019
SCC Online Bom 1519 was correct. [Para 34][334-A-D]
SAURAV YADAV & ORS. v.
STATE OF UTTAR PRADESH & ORS.
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5. This Court must also clarify at this stage that it is not
disputed that the Applicant no.1 and other similarly situated
candidates are otherwise entitled and eligible to be appointed in
'Open/General Category' and that they have not taken or availed
of any special benefit which may disentitle them from being
considered against 'Open/General Category' seat. The entire
discussion and analysis in the present case is, therefore, from
said perspective. [Para 35][334-D-E]
6. Finally, this Court must say that the steps indicated by
the High Court of Gujarat in para 56 of its judgment in Tamannaben
Ashokbhai Desai [R/LPA No.1910 of 2019 in R/Special Civil
Application No.18968 of 2018] contemplate the correct and
appropriate procedure for considering and giving effect to both
vertical and horizontal reservations. The steps indicated by
Gujarat High Court will take care of every such possibility. It is
true that the exercise of laying down a procedure must necessarily
be left to the concerned authorities but this Court may observe
that one set out in said judgment will certainly satisfy all claims
and will not lead to any incongruity. [Para 36][334-E-H]
7. Having come to the conclusion that the Appellant No.1
and similarly situated candidates had secured more marks than
the last candidates selected in 'Open/General Category', the
logical consequence must be to annul said selection and direct
the authorities to do the exercise de novo in the light of conclusions
arrived at by us. However, considering the facts that those
selected candidates have actually undergone training and are
presently in employment and that there are adequate number of
vacancies available, this Court mould the relief and direct as
under:- a) All candidates coming from 'OBC Female Category'
who had secured more marks than 274.8929, i.e. the marks
secured by the last candidate appointed in 'General CategoryFemale' must be offered employment as Constables in Uttar
Pradesh Police. b) Appropriate letters in that behalf shall be sent
to the concerned candidates within four weeks. c) If the
concerned candidates exercise their option and accept the offer
of employment, communications in that behalf shall be sent by
the concerned candidates within two weeks. d) On receipt of such
acceptance, the codal and other formalities shall be completed
within three weeks. e) Letters of appointment shall thereafter
be issued within a week and the concerned candidates shall be
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given appropriate postings. f) For all purposes, including seniority,
pay fixation and other issues, the employment of such candidates
shall be reckoned from the date the appointment orders are
issued. g) The employment of General Category Females with
cut off at 274.8929 as indicated by the State Government in its
affidavits referred to in paragraphs 5 and 8 hereinabove are not
to be affected in any manner merely because of this judgment.
Since it has been accepted that none of the candidates coming
from 'SC Female Category' had secured more marks than
274.8298, the claims of the Applicant no.2 and all similarly situated
candidates are rejected. [Para 37, 38][335-A-F]
Per S. RAVINDRA BHAT, J.
1. The features of vertical reservations are: (i) They cannot
be filled by the open category, or categories of candidates other
than those specified and have to be filled by candidates of the
concerned social category only (SC/ST/OBC); (ii) Mobility
('migration') from the reserved (specified category) to the
unreserved (open category) slot is possible, based on meritorious
performance; (iii) In case of migration from reserved to open
category, the vacancy in the reserved category should be filled
by another person from the same specified category, lower in
rank, (iv) If the vacancies cannot be filled by the specified
categories due to shortfall of candidates, the vacancies are to be
'carried forward' or dealt with appropriately by rules. [Para 9][341F-H; 342-A]
2. Horizontal reservations on the other hand, by their nature,
are not inviolate pools or carved in stone. They are premised on
their overlaps and are 'interlocking' reservations. As a sequel,
they are to be calculated concurrently and along with the inviolate
'vertical' (or "social") reservation quotas, by application of the
various steps laid out with clarity in paragraph 11 of Justice Lalit's
judgement. They cannot be carried forward. The first rule that
applies to filling horizontal reservation quotas is one of adjustment,
i.e. examining whether on merit any of the horizontal categories
are adjusted in the merit list in the open category, and then, in
the quota for such horizontal category within the particular
specified/social reservation. [Para 10][342-A-C]
3. The open category is not a 'quota', but rather available
to all women and men alike. Similarly, as held in Rajesh Kumar
Daria v. Rajasthan Public Service Commission, 2007 (8) SCC 785,
SAURAV YADAV & ORS. v.
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there is no quota for men. If the second view is accepted [as held
by the Allahabad High Court in Ajay Kumar v. State of UP (2019)
5 ALJ 466 and the Madhya Pradesh High Court in State of
Madhya Pradesh & Anr. v. Uday Sisode & Ors. (2019) SCC Online
MP 5750, referred to in paragraph 20 of Justice Lalit's
judgement], the result would be confining the number of women
candidates, irrespective of their performance, in their social
reservation categories and therefore, destructive of logic and
merit. The second view, therefore - perhaps unconsciously
supports- but definitely results in confining the number of women
in the select list to the overall numerical quota assured by the
rule. [Para 11][342-A-E]
4. In my opinion, the second view collapse completely, when
more than the stipulated percentage 20% (say, 40% or 50%) of
women candidates figure in the most meritorious category. The
said second view in Ajay Kumar and Uday Sisode thus penalizes
merit. The principle of mobility or migration, upheld by this court
in Union of India v. Ramesh Ram (2009) 6 SCC 619 and other
cases, would then have discriminatory application, as it would
apply for mobility of special category men, but would not apply to
the case of women in such special categories (as glaringly evident
from the facts of this case) to women who score equal to or more
than their counterparts in the open/ general category. [Para
12][342-A-F; 343-A]
5. Both vertical and horizontal, are method of ensuring
representation in public services. These are not to be seen as
rigid "slots", where a candidate's merit, which otherwise entitles
her to be shown in the open general category, is foreclosed, as
the consequence would be, if the state's argument is accepted.
Doing so, would result in a communal reservation, where each
social category is confined within the extent of their reservation,
thus negating merit. The open category is open to all, and the
only condition for a candidate to be shown in it is merit, regardless
of whether reservation benefit of either type is available to her
or him. [Para 15][344-A-G]
In the Judgment of Uday Umesh Lalit, J.
Shri V.V. Giri v. Dippala Suri Dora and Others [1960]
1 SCR 426 - followed.
Megha Shetty v. State of Rajasthan 2013 (4) RLW 3227
(Raj.); Neelam Sharma v. State of Rajasthan and Ors.
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(2015) SCC OnLine Raj 1391; Asha Ramnath Gholap
v. The President, District Selection Committee/Collector
(2016) SCC OnLine Bom 1623-20; Kanchan
Vishwanath Jagtap v. Maharashtra Administrative
Tribunal, Nagpur and Others (2016) 1 Mah. L.J. 934;
Tejaswini
Raghunath
Galande
v.
Chariman,
Maharashtra Public Service Commission, Mumbai and
Others (2019) 4 Mah L.J. 52-207; Charushila v. State
of Maharashtra (2019) SCC OnLine Bom 1519;
Shantabai Laxman Doiphode v. State of Maharashtra
(2020) SCC OnLine Bom 1659; Uttarakhand
Subordinate Service Selection Commission and Another
v. Ranjita Rana and Another (2019) SCC OnLine Utt
481; Sudhir Kumar v. State of Uttarakhand and Others
Writ Petition (S/B) No.392 of 2017 dated 11.12.2018;
Tamannaben Ashokbhai Desai v. Shital Amrutlal Nishar
R/LPA No.1910 of 2019 in R/Special Civil Application
No.18968 of 2018 etc. decided on 05.08.2020 -
approved.
Ajay Kumar v. State of U.P. and Others (2019) 5 ALJ
466; State of Madhya Pradesh and Another v. Uday
Sisode and Others (2019) SCC OnLine MP 5750 -
disapproved.
State of UP & Ors. v. Ashish Kumar Pandey & Ors.
(2016) SCC OnLine All 2611; Pramod Kumar Singh
and Others v. State of U.P. and Others Writ A. No.18442
of 2018; Indra Sawhney and Others v. Union of India
and Others (1992) 3 Suppl. SCC 217; Swati Gupta (Ms.)
v. State of U.P. and Others (1995) 2 SCC 560; [1995] 1
SCR 827; Anil Kumar Gupta and others v. State of U.P.
and Others (1995) 5 SCC 173; [1995] 2 Suppl. SCR
396; Rajesh Kumar Daria Etc. v. Rajasthan Public
Service Commission and Others (2007) 8 SCC 785;
[2007] 8 SCR 972; K. Krishna Murthy (Dr.) and Others
v. Union of India and Another (2010) 7 SCC 202;
[2010] 6 SCR 972; Public Service Commission,
Uttaranchal Etc. v. Mamta Bisht and Others (2010) 12
SCC 204; [2010] 7 SCR 289; Alok Kumar Singh and
Others v. State of Uttar Pradesh and Others; (2019) 14
SCC 692; [2018] 14 SCR 328 - referred to.
SAURAV YADAV & ORS. v.
STATE OF UTTAR PRADESH & ORS.
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Case Law Reference
[2018] 14 SCR 328
referred to
Para 14
(1992) 3 Suppl. SCC 217
referred to
Para 18
[1995] 1 SCR 827
referred to
Para 18
[1995] 2 Suppl. SCR 396
referred to
Para 18
[2007] 8 SCR 972
referred to
Para 18
[2010] 6 SCR 972
referred to
Para 18
[2010] 7 SCR 289
referred to
Para 18
[1960] 1 SCR 426
followed
Para 22
In the Judgment of Ravindra Bhat, J.
Indira Sawhney v Union of India, (1992) Suppl. (3) SCC
766; Rajesh Kumar Daria v. Rajasthan Public Service
Commission (2007) 8 SCC 785; [2007] 8 SCR 972 -
relied on.
Anil Kumar Gupta v. State of UP, (1995) 5 SCC 173;
[1995] 2 Suppl. SCR 396; Swati Gupta v. State of UP
(1995) 2 SCC 560; [1995] 1 SCR 827; Jitendra Kumar
Singh v. State of UP (2010) 3 SCC 119; [2010] 1
SCR 325; Anupal Singh v. State of U.P (2020) 2 SCC
173; [2019] 12 SCR 1071 - referred to.
Megha Shetty v. State of Rajasthan 2013 (4) RLW;
Neelam Sharma v. State of Rajasthan (2015) SCC
(Online) Raj 139; Tamannaben Ashokbhai Desai v.
Shital Amrutlal Nishar R/LPA NO. 1910 in R/Special
Civil. App No. 18968/2018 decided on 5.8.2020 by
the High Court of Gujarat; Asha Ramnath Gholap v.
The President, District Selection Commission/Collector,
(2016) SCC Online Bom 1623; Kanchan Vishwanath
Jagtap & Anr. v. Maharastra Administrative Tribunal
& Ors. 2016 Mah. LJ 934; Tejaswini Raghunath
Golande v. Chairman, Maharastra Public Services
Commission 2019 Mah. LJ 527; Charushila v. State of
Maharashtra, (2019) SCC Online Bom 1519;
Shantabai Laxman Doiphode v. State of Maharashtra
(2020) SCC Online Bom 1639; Uttarakhand
Subordinate Service Selection Commission v. Ranjita
Rana (2019) SCC Online Utt. 481 - approved.
Allahabad and Madhya Pradesh (in Ajay Kumar v. State
of UP & Ors. (2019) 5 ALJ 466; State of Madhya
Pradesh & Anr. v. Uday Sisode & Ors. (2019) SCC
OnLine MP 5750 - disapproved.
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289
Government of Andhra Pradesh v. P.B. Vijay Kumar
(1995) 4 SCC 520; [1995] 1 Suppl. SCR 462; Union
of India v. Ramesh Ram (2009) 6 SCC 619; [2009] 9
SCR 775 - referred to.
Hanumant Dutt Shukla v. State of UP (2018) 16 SCC
447; Alok Kr. Singh & Others v. State of U.P. & Others
CA No.11370/2018; Sunaina Tripathi v. State of UP &
Ors., (2012) 3 ADJ 463 - referred to.
Case Law Reference
(2018) 16 SCC 447
referred to
Para 1
[1995] 1 Suppl. SCR 462
referred to
Para 2
(1992) 3 Suppl. SCC 766
relied on
Para 6
[1995] 2 Suppl. SCR 396
referred to
Para 7
[1995] 1 SCR 827
referred to
Para 8
[2010] 1 SCR 325
referred to
Para 8
[2007] 8 SCR 972
relied on
Para 8
[2009] 9 SCR 775
referred to
Para 10
[2019] 12 SCR 1071
referred to
Para 12
CIVIL
APPELLATE/ORIGINAL
JURISDICTION:
Miscellaneous Application No. 2641 of 2019 in Special Leave Petition
(Civil) No. 23223 of 2018.
From the Judgment and Order dated 16.05.2018 of the High Court
of Judicature at Allahabad in Writ Petition - A No. 21084 of 2017.
With
W.P. (C) No.237 of 2020
Vinod Kumar Diwakar, Saurabh Mishra, AAGs., Ms. Vibha Dutta
Makhija, Vinay Navare, Gopal Sankaranarayanan, Neeraj Kishan Kaul,
P.S. Patwalia, Dr. Manish Singhvi, Purushaindra Kaurav, S.R. Singh,
S.R. Rungta, Sr. Advs., Garima Prashad, Adaleeb Naqvi, Ms. Nupur
Dubey, Purushottam Sharma Tripathi, Mukesh Kumar Singh, Ms. Vani
Vyas, Praveen Gaur, Anurag Dubey, Rajesh Pathak, Sumit Kumar, Ms.
Kumari Supriya, Ms. Usha Pandey, Binod Mishra, Ravi Chandra
Prakash, Amit, Abhishek Tripathi, Shrutanjaya Bhardwaj, Anil Bhat,
Danish Zubair Khan, Kumar Gaurav, Robin Khokhar, Ms. Anuradha
Mishra, Mayank Kshirsagar, Mukesh Kumar, Siddharth Sharma,
Parthasarathy Bose, Ms. Pankhuri, Ankur Yadav, Sumit Pragal, Ms. Amita
Singh Kalkal, Arjun Garg, Ms. Rati Tandon, Saurabh Kirpal, Anuroop
Chakravarti, Ms. Nida Khan, P. N. Puri, Surendra Singh Rana, Shantanu
Jugtawat, Ikshit Singhal, Mohit Kaushik, Ms. Bhanu Priya Sharma,
SAURAV YADAV & ORS. v.
STATE OF UTTAR PRADESH & ORS.
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Prashant Agarwal, Ashutosh Chaturvedi, M/s. Mukesh Kumar Singh
And Co., D.K. Garg, Seemant Singh, Dhananjay Garg, Sudhindra Tripathi,
Abhishek Garg, Shakil Ahmad Syed, Mohd. Parvez Dabas, Uzmi Jameel
Husain, Qazi Wakeel Ahmad, Daanish Ahmed Syed, R.K. Singh,
Ms. Neeraj Singh, Ms. Ritu Reniwal, Ms. Anzu K. Varkey, Divyakant
Lahoti, Parikshit Ahuja, Praveena Bisht, Ms. Vindhya Mehra,
Ms. Madhur Jhavar, Kartik Lahoti, Jai Gopal Saboo, Satish Pandey, Salim
Ansari, Umang Tripathi, Ms. Ninanda Nair, Adarsh Tripathi, Anish Gupta,
Nikhil Kandpal, Gaurav Srivastava, Sanjay K. Agrawal, Ms. Ankita
Khare, Sarthak Nema, Rohit Sohgaura, Suyash Mohan Guru, Vardhman
Kaushik, Ashwani Kumar Dubey, Anil A. Thomas, Manish Kumar, Aman
Jha, Ashutosh Mohan, R. C. Kohli, L.C. Patne, Raghav Pandey,
Ms. Rekha Pandey, Krishna M. Singh, S. R. Setia, Mayank Pandey,
Gaurav, Nikhil Jain, Rajiv Ranjan Dwivedi, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
MISCELLANEOUS APPLICATION NO.2641 OF 2019
1. This Miscellaneous Application has been preferred by
Ms. Sonam Tomar and Ms. Reeta Rani who had participated in the
Selection Process initiated for filling up posts of Constables in U.P.
Police and secured 276.5949 and 233.1908 marks respectively. They
had applied in the categories of OBC-Female and SC-Female respectively.
2. It is submitted by them that their claim has been rejected by the
State Government despite directions issued by this Court in its Order
dated 24.07.2019 in I.A. No.10394 of 2018 (Ashish Kumar Yadav and
Others vs. State of Uttar Pradesh and Others) and that candidates with
lower marks have been selected in General Female category disregarding
their claim.
3. The basic facts relevant for the purposes of this Miscellaneous
Application, as stated in said order dated 24.07.2019 are as under: -
"In the year 2013, selection process was undertaken to fill up
41,610 posts of Police Constables [U.P. Civil Police/Provincial
Armed Constabulary (PAC)/Fireman]). After the requisite
examination, results were declared on 16.07.2015, in which 38315
candidates were successful. Thus, as on that date there were
3295 vacancies which were not filled as no suitable candidates
were available.
It must be mentioned that the process for selecting Sub- Inspectors
in U.P. Police was going on simultaneously and in a challenge
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raised in respect of said process, the High Court of Judicature at
Allahabad vide its order dated 29.05.2015 in the case of Saket
Kumar and Ors. vs. State of U.P. and 2 Ors1 directed that the
candidates who had used blades and whiteners while answering
the answer papers of the main examination were disqualified and
their names be deleted from the selection list.
The matter was carried in appeal before this Court and by its
decision dated 19.01.2016 (Hanuman Dutt Shukla & Ors. vs.
State of UP and Others2), it was ruled that those who had used
blades and whiteners ought not to have been disqualified. However,
by that time, the process of selection had gone ahead with reworking of the seniority list in terms of the order passed in Saket
Kumar1. This Court, therefore, observed that those candidates
who were selected as a result of directions in Saket Kumar1 should
not be thrown out from the process of selection but the candidates
who had used the blades and whiteners should be given the
advantage or benefit in a notional selection. In other words, the
selection list was ordered to be re-worked and in case the
candidates who had used blades and whiteners were now found
to be part of the selection list, they be given appropriate advantage
including selection to the posts in question. It was also directed
that though logically equal number of candidates must be displaced
from the original list of selection, since those persons had already
undergone training and some of them had joined the posts, those
candidates ought not to be thrown out of service. This Court also
directed that in the process, the additional number of candidates
who were selected over and above the normal selection should be
reckoned as against additional posts and should not be taken to be
part of the original posts for selection.
The principle so devised in HD Shukla2 was then adopted in the
process of selection for Police Constables which was going on
simultaneously and consequently the selection list was reworked.
Thus all the candidates who had used blades and whiteners were
considered in the process of selection and some of them did get
selected. In the re-working of the selection list 4429 candidates
were given advantage or benefit in terms of the law declared in
Hanuman Dutt Shukla2 which is to say those 4429 candidates
would be taken as additional appointments over and above the
number of posts for which selection was undertaken.
1 Writ A. No.67782 of 2014, (2015 SCC OnLine All 1250)
2 (2018) 16 SCC 447
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
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In its judgment dated 16.03.2016 [Ashish Kr. Pandey & 24
others vs. State of U.P. and 29 Others3], the High Court of
Judicature at Allahabad observed that horizontal reservation was
not properly worked and as such the State was directed to
undertake the process of re-calculating horizontal reservation
vacancies afresh. This case was also in relation to the process of
selection for Sub-Inspectors. Around same time, another decision
was rendered by the High Court in Manoj Kr. & Others4 adopting
the principle in Ashish Kr. Pandey3 in selection process for
Constables.
On 4.5.2018, a decision was rendered by the High Court of
Judicature at Allahabad in Upendra and others vs. State of U.P.
and Others5 wherein challenge was raised to certain provisions
of the Reservation Act. It was submitted that going by the concept
of horizontal reservation, it would not be possible to carry forward
the vacancies to the next selection, in case the appropriate number
of candidates for horizontal reservation were not available. The
High Court accepted the plea and directed that there shall not be
any carry-forward of vacancies of horizontal reservation to the
next selection.
Thus the matter was clear that in case appropriate number of
candidates for filling up seats meant for horizontal reservation were
not available, there would not be any carry forward of such
vacancies. The order shows that about 2312 vacancies were not
filled up by the State adopting the idea of carry forward principle
in horizontal reservation. Therefore, as a result of the directions
issued by the High Court in Upendra's case, 2312 vacancies must
enure to the advantage of the candidates concerning the present
selection process itself.
It is accepted by the learned counsel for the State that the State
did not undertake any process of selection in respect of those
2312 vacancies.
... ... ...
... ... ...
It is also accepted that apart from these 2312 vacancies, there
are still 982 vacancies to be filled up in the original selection."
In the circumstances this Court directed the State to complete the
process of selection in respect of 2312 + 982 vacancies in accordance
3 Writ A. No.37599 of 2015 (2016 SCC OnLine ALL 187)
4 2017 SCC OnLine ALL 2759
5 Writ C. No.3417 of 2016; 2018 (7) ADJ 37
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with law. It was also directed that the principle of reservation would be
followed while filling up these vacancies and that the State would adhere
to the required minimum qualifying marks as devised during the process
of selection and consider all eligible candidates in accordance with merit.
It was also declared: -
"It is clarified that no candidate shall be excluded from the selection
process merely because he had used blade or whitener. In case
his merit position otherwise demands and entitles him to be selected,
no prejudice shall be caused to him merely for the use of blade
and whitener."
4. Soon thereafter, apprehension was expressed whether the
direction as aforesaid would apply to male candidates only. Therefore,
the order dated 17.09.2019 recorded as under: -
"Mr. Vinod Diwakar, learned AAG for the State makes a statement
that keeping in view the direction issued by this Court on
24.07.2019, no candidate shall be excluded from the selection
process merely because he/she had used blade/whitener and in
case merit position of the candidate demands and entitles him/her
to be selected, no prejudice shall be caused to him/her merely for
using blade/whitener. Statement is taken on record."
5. In compliance of the order dated 24.07.2019, an affidavit dated
13.11.2019 was filed on behalf of the State stating inter alia :-
"3.3- In open Category 5 DFF males, 1 DFF female and 187
female (General) have been selected. This process completes
horizontal reservation.
4- Cut off marks for different categories are as under-

OC
OBC
SC
ST
Male
313.616
307.233
283.4033
247.233
Cut

3
off

Female (General Category) cut off - 274.8928. All the OBC, SC
and ST candidates securing more than 313.616 marks have also
been selected in open / unreserved category."
6. Aggrieved by the action on part of the State in not considering
the claim of OBC female and SC female candidates against the posts
meant for General Category female candidates, this Miscellaneous
Application is preferred submitting inter alia:-
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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"13. That a perusal of paragraph 4 of the Compliance Affidavit
dated 13.11.2019 filed by the Respondent State reveals that while
all Male Candidates belonging to OBC, SC, ST category securing
more than the cut off marks (313.616) for the Male Candidates in
the General/Open/Unreserved Category have also been selected,
the same standard has not been applied to the OBC/SC/ST Women
Category Candidates like the Petitioners/Applicants although they
have obtained more than the cut of marks (274.8928) for the Female
Candidates in the General/Open/Unreserved Category.
14. That it is respectfully submitted that 21 of the Petitioners/
Applicants belonging to the Female OBC Category have secured
marks more than the cut off marks for the Female (General
Category) candidates declared to be selected as per the State's
Compliance Affidavit dated 13.11.2019."
The Applicants, therefore, pray: -
"(a) Allow the instant application and direct the Respondent State
to select the Applicants/Petitioners herein [Female OBC/SC
candidates] who participated in the 2013 Constables Recruitment
Process and secured higher marks than the Cut off marks
(274.8928) for the Female Candidates in the General/Open/
Unreserved Category;"
7. Thereafter I.A. No.25611 of 2019 has been filed by similarly
situated candidates claiming similar relief. The Order dated 04.03.2020
passed by this Court stated: -
"In M.A. No.2641 of 2019 the case in respect of two applicants is
projected while in I.A. No.25611/2019 the matter is being agitated
with respect to other 20 candidates. Issue notice in I.A. No.25611/
2019 returnable on 24.3.2020.
Ms. Vibha Dutta Makhija, learned Senior Advocate fairly accepts
that out of 32 female candidates, 11 candidates belong to the
category of SC girls while other 21 belong to the category of
OBC girls and that there is no case in so far as candidates
belonging to SC-girls category are concerned.
In so far as OBC girls are concerned, Ms. Vibha Dutta Makhija,
learned Senior Advocate submits that all these girls had secured
marks greater than cut off namely 274.89 which was declared for
females (General) category. Our attention is invited to page 110
of the Compliance Affidavit which shows that some female
candidates who had scored marks in the range of 274-275, have
been selected.
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It is the submission that the applicant girls of the category of OBC
girls had scored marks greater than those General category girls
who were selected.
One of the submissions sought to be advanced by the learned
counsel for the State was that the category of OBC Females was
already exhausted in the first round and the selection which was
undertaken pursuant to the directions issued by this Court in
Hanuman Dutt Shukla's2 case and in cases decided subsequently
on same lines, was only confined to the candidates who had been
disqualified for having used blades/erasers or whiteners. Since
the selection was confined to such candidates, and as the category
of OBC female was already exhausted, no candidates could be
appointed from and out of OBC female candidates. However, the
fact remains that females coming from General Category who
had secured marks in the range of 274-275, going by Page 110,
have definitely been appointed, whereas applicant OBC-girls had
secured marks greater than them.
It thus, prima facie does not stand to reason how candidates in the
General Category could be appointed who had secured less
number of marks than the applicant girls."
8. Thereafter, the Order dated 22.07.2020 passed by this Court
was to the following effect:-
"Mr. Vinod Diwakar, learned AAG for the State submitted that in
the category of Male Constables, OBC, SC and ST candidates
securing more than the cut-off, namely, 313.616 for Open Category
Candidates, were also selected in the open/unreserved category.
However, same yardstick was not applied with respect to the
Female Candidates and justification for such exercise was on the
basis of the directions issued by the High Court in its order dated
16.03.2016 in Writ Petition No.37599 of 2015 and order dated
20.02.2019 in Writ Petition No.18442 of 2018."
9. The stand taken by the State Government in its affidavits was
as under:-
I] Affidavit dated 29.11.2019
"A. In the year 2013 selection process was undertaken to fill up
41610 posts of police constable (UP civil police/PAC/Fireman).
Details are as follows:-
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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Table-1
S.No
.
Categor
y
Civil
Police
PAC
Firema
n
Total
1
Open
17750
2016
1038
20804
2
OBC
9585
1089
561
11235
3
SC
7455
847
436
8738
4
ST
710
81
42
833

Total
35500
4033
2077
41610
B. Horizontal reservation position is as followsTable-2
Vertical
Reservatio n
Total
Vacancies
Horizontal Reservation Vacancies
Ex-
Servicema
n 05%
DFF
02%
Home-
Guard
(only
for
civil
police
& PAC
05%)
Fem al e
(only
for civil
police)
20%
Open
20804
1040
416
988
3550
OBC
11235
562
225
534
1917
SC
8738
437
175
415
1491
ST
833
42
17
40
142
Total
41610
2081
833
1977
7100
Results were declared on 16-07-2015 after completing requisite
examination and other procedures. 38315 candidates were declared
successful and 3295 posts remained vacant due to unavailability
of suitable candidates in respective categories.
... ... ...
C. In compliance of the Hon'ble Supreme Court order dated 2407-2019, selections have been made against 3295 posts
according to merit, keeping in view the reservation policy of
the government. The result has been declared on 11.11.2019.
It is pertinent to mention here that 7100 posts were reserved
for female candidates as against 35500 posts of civil police
(Table-2) in which 3550 posts were earmarked for General
female candidates. At this stage OBC and SC female
candidates were already taken in surplus to their required
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number in respective categories Female candidates were only
3062 as against 3550 (Ref. Table-2). Hence, therefore, 188
General Female candidates in Open Category have been
selected to fill up their reservation quota against 3550 Open
Category Female candidates."
II. Affidavit dated 21.07.2020
"13. That it is again reiterated that in Civil Police, out of total
vacancies 3550 were reserved for General Category Women's,
1970 were reserved for OBC, 1491 were reserved for SC and
142 were reserved for ST Women's Candidates. It is again
reiterated that the OBC and SC women candidate had already
been selected against the vacancies hence therefore in subsequent
selection their merit has not been considered."
10. Since reliance has been placed by the State on the Order
dated 16.03.20163 passed by the Single Judge of High Court of Judicature
at Allahabad in Writ Application No.37599 of 2015, some of the relevant
observations in said Order are quoted here:-
"It was, therefore, mandated that upon adjustment/accommodation
if the special category candidate belonging to OBC category scored
higher marks than his/her counterpart adjusted in open category,
cannot be shifted to open category. Shifting would tantamount to
vertical reservation which is impermissible and alien to the concept
of horizontal reservation. Horizontal reservation cut across vertical
reservation, therefore, there is no concept of 'merit'while making
adjustment/accommodation.
... ... ...
Learned counsel for the respondents6 would urge that (i) the
women selected on merit should be excluded while determining
the number of women candidates to be adjusted in respective
category, (ii) open category being 'open' based on merit, therefore,
the candidates under special reservation quota should be
accommodated/adjusted on the basis of their inter se merit in open
category, irrespective of their social category, (iii) women are a
class, therefore, there can be no discrimination on the basis of
their social category, (iv) the principles as sought to be urged, if
not followed, would tantamount to reservation in favour of "upper
caste" which is not the aim or object of the Constitution.
The argument, in my opinion, is not only misconceived, but malicious
and motivated as is being sought to be urged by the petitioners.
6 State of U.P. and its functionaries
SAURAV YADAV & ORS. v. STATE OF UTTAR PRADESH &
ORS. [UDAY UMESH LALIT, J.]
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The principles for horizontal reservation that is being sought to be
urged, if accepted, would necessarily be in teeth of the provisions
of Act, 1993, Government Orders referred to earlier, and the
authoritative pronouncement of the Apex Court. I have no hesitation
in observing that both the State and the Board, for the reason best
known to them, and the Advocate General, assisted by a battery
of lawyers, with impunity have taken a stand against their own
Government Orders and the provisions of Act, 1993. When
confronted with a query that the Advocate General was arguing
not only against the Government Orders but also against the
principles which was continuously being followed by the Board, in
previous selections regarding horizontal reservation; Sri Singh would
contend that the principle adopted by the Board being 'equitable',
therefore, the State supports the methodology adopted by the
Board. The argument, however, was not supported by any authority,
rather the authorities referred, herein above, was relied upon by
both the contesting parties in support of their arguments.
... ... ....
The questions framed, consequently, are answered as follows:
(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 ......."
(Emphasis supplied)
11.