Bombay High Court
Charushila Tukaram Chaudhari And ... vs The State Of Maharashtra And ... on 8 August, 2019
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4159 OF 2018
01 Charushila d/o Tukaram Chaudhari,
age: 30 years, Occ: Nil,
R/o Surbhi Nagar,
Professor Colony, Near Annapurna
Milk Dairy, Jamner Road, Bhusawal,
Tq. Bhusawal, District Jalgaon.
02 Nutan d/o Balaso Khade,
age: 26 years, Occ: Service,
R/o Near Collector Office,
Jalna, Tal. & District Jalna.
03 Dr.Mita d/o Arun Chaudhari,
age: 33 years, Occ: Service as
Sales Tax Inspector,
R/o Flat No.4, Plot No.83,
Nirmal Apartment,
Datta Mandir, Dhule,
District Dhule.
04 Ku. Pallavi d/o Suresh Sote,
age: 31 years, Occ: Education,
R/o Kishor Nagar, Near
Prashant Nagar, Amravati,
District Amravati,
At present, CIDCO, N-4,
Aurangabad, District
Aurangabad.
05 Swati d/o Sadashiv Gambare,
age: 26 years, Occ: Nil,
R/o Palashi, Tal. Man,
District Satara, at present:
N-9, M-2, HUDCO, Aurangabad,
Tal. & District Aurangabad. Petitioners
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Versus
01 The State of Maharashtra,
through its Principal Secretary,
General Administration Department,
Mantralaya, Mumbai.
02 The Maharashtra Public Service
Commission, through its Chairman,
Floor 5-8, Cooprej MTNL building,
Maharshi Karve Road, Cooprej,
Mumbai - 001. ... Respondents
Mr.S.S.Thombre, advocate for the petitioners.
Mr.Ashutosh Kumbhakoni, Advocate General with Mr.A.B.Girase,
Government Pleader and Mr.Akshay Shinde, advocate for
Respondent No.1.
Mr.M.B.Kolpe, advocate for Respondent No.2.
Mr.P.R.Katneshwar, advocate for applicant-intervener in
C.A.No.8338/2018.
Mr.Avinash S. Deshmukh, advocate for applicant-intervener in
C.A.No.10769 of 2018.
Mr.Hrishikesh A. Joshi, advocate for applicant-intervener in
C.A.No.7484 of 2018.
Mr.Ajay U. Chandel and Mr.Sandeep Dere, advocates for applicant-
intervener in C.A.No.7485 of 2018.
Mr.Hrishikesh A. Joshi, advocate for applicant-intervener in
C.A.No.7486 of 2018.
WITH
WRIT PETITION NO.6578 of 2018
01 Shilpa d/o Sahebrao Kadam,
age: 30 years, Occ: Service as
Nayab Tahsildar, R/o Chandani
Baag, Behind Prasad Depo,
Tq. & District Osmanabad.
02 Seemanjali Krushnath Ware,
age: 29 years, Occ: Nil,
R/o Agalgaon Road,
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Wani Plot, Barshi,
District Solapur. Petitioners
Versus
01 The State of Maharashtra,
through the Principal Secretary
of General Administration Department,
Mantralaya, Mumbai.
02 The Maharashtra Public Service
Commission, through its
Deputy Secretrary, Floor 5-8,
Coopreg MTNL Building,
Maharishi Karve Road,
Coopreg, Mumbai 001. Respondents
Mr.P.R.Katneshwar, advocate for petitioners.
Mr.Ashutosh Kumbhakoni, Advocate General with Mr.A.B.Girase,
Government Pleader and Mr.Akshay Shinde, advocate for
Respondent No.1.
Mr.M.B.Kolpe, advocate for Respondent No.2.
Mr.Avinash S. Deshmukh, advocate for applicant-intervener in
C.A.No.10768 of 2018.
WITH
WRIT PETITION NO.10837 OF 2018
Ms. Alaka Shyamsunder Mundhe,
age: 23 years, Occ: Student,
R/at: C/o Shyamsunder Raghunath
Mundhe, Om Nagar, Parli Road,
Gangakhed, Taluka: Gangakhed,
District Parbhani 431 514. Petitioners
Versus
01 The Principal Secretary,
The General Administration
Department, The State of
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Maharashtra, Mantralaya,
Mumbai 400 032.
02 The Maharashtra Public Service
Commission, through its
Secretary,
Floor 5-8, Cuprage MTNl
Building, Maharashi Karve
Road, Cuprage,
Mumbai 400 021. Respondents
Dr. Sudhakar E. Avhad, with Mr.S.D.Munde, Mr.Abhijeet Awhad,
Mr.Vijay Dhakane and Mr.Chetan R. Nagare, advocates for
petitioners.
Mr.Ashutosh Kumbhakoni, Advocate General with Mr.A.B.Girase,
Government Pleader and Mr.Akshay Shinde, advocate for
Respondent No.1.
Mr.M.B.Kolpe, advocate for Respondent No.2.
WITH
WRIT PETITION NO.10578 OF 2018
01 Mangeshrao Dadasaheb Dighe,
age: 26 years, Occ: Education,
R/o Talegaon Dighe, Tal. Sangamner,
District Ahmednagar.
02 Keshav s/o Uddhavrao Jawale,
age: 26 years, Occ: Education,
R/o Gulkhand, Post Kupta,
Tal. Sailu, District Parbhani.
03 Nilesh S/o Raosaheb Thorat,
age: 28 years, Occ: Education,
R/o Undigaon, Tal.Shrirampur,
District Ahmednagar.
04 Jagdish s/o Prakash Chaudhari,
age: 26 years, Occ: Education,
R/o House No.191, Lane No.9,
Village Jalod, Tal. Amalner,
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District Jalgaon.
05 Nitesh s/o Govind Pawar,
age: 29 years, Occ: Education,
R/o Satara Parisar, Gut No.169,
Plot No.9/10, Near Ujwalatai
Pawar School, Beed Bye Pass
Road, Aurangabad,
District Aurangabad.
06 Rajkumar Gangadhar Munde,
age: 23 years, Occ: Education,
R/o Pangari Camp,
Someshwar Krupa, Parali-Beed
State Highway, Pangari,
District Beed.
07 Miss. Sonali Manohar Bhaijibhakare,
age: 30 years, Occ: Education,
R/o Kurdu, Tal. Madha,
District Solapur.
08 Deepak s/o Suresh Gumane,
age: 30 years, Occ: Education,
R/o "E" Ward 1182,
Opp. Purva Hospital,
Tal. Karveer, Dist.Kolhapur.
09 Ganpatrao Annappa Mashalkar,
age: 23 years, Occ: Education,
R/o Near Kalika Temple,
Kumbhar Galli,
Miraj, Tal. Miraj, Dist.Sangli.
10 Varsha Vasant Bangar,
age: 30 years, Occ: Education,
R/o Flat No.1401/B8, Highland
Park, Kolshet Road, Dhokali Naka,
Thane, Tal. & Dist. Thane.
11 Tanuja Sampat Doke,
age: 23 years, Occ: Education,
R/o Khodad, Tal. Junnar,
District Pune.
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12 Shaikh Shoaib Shaikh Hamid,
age: 24 years, Occ: Education,
R/o Near Post Office, Behind
Madina Masjid, Ward No.10,
Post Office Road, Chikhli,
Tal.Chikhli, District Buldhana.
13 Sujay s/o Suresh Bhaware,
age: 32 years, Occ: Education,
R/o Vasant Nagar, Anji Road,
Ghatanji, Tal. Ghatanji,
District Yavatmal.
14 Somnath /o Baban Gholap,
age: 25 years, Occ: Education,
R/o Sandipani Society,
Near MES Society,
Vijay Nagar, Nashik,
Tal. & District Nashik.
15 Satish s/o Tulshiram Rathod,
age: 24 years, Occ: Education,
R/o Nandapur, Post Moha,
Tal. Pusad, District Yavatmal.
16 Pooja Bhausaheb Pansare,
age: 24 years, Occ: Education,
R/o House No.50/2, Maruti
Mandir, Dalaj No.2, Tq.Indapur,
District Pune.
17 Sandip s/o Bapu Yede,
age: 28 years, Occ: Education,
R/o Navinagar, Post Kamgaon,
Tal. Daund, District Pune.
18 Nilesh Ramdas Thorwe,
age: 27 years, Occ: Education,
R/o Yeshodeep, Siddji Nagar,
Balapur Road, Patur,
Tal. Patur, District Akola.
19 Prashant s/o Ramchandra Kamble,
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age: 37 years, Occ: Education,
R/o 69, Sanewadi, Ramchandra
Kamble, Sanewadi, Electric D.P.
Wardha, Tal. & Dist. Wardha.
20 Kanchan Shankar Aware,
age: 22 years, Occ: Education,
R/o 480, Ozer Saykheda Road,
Aware Mala, Near Datta Mandir,
Narayangaon, Tal. Niphad,
District Nashik. Petitioners
Versus
01 The State of Maharashtra,
through its Principal Secretary,
General Administration
Department, Mantralaya,
Mumbai.
02 The Maharashtra Public
Service Commission, through
its Secretary, Floor 5-8,
Cooprej MTNL Building,
Maharshi Karve Road, Cooprej,
Mumbai.
03 The Transport Commissioner,
Administrative Building,
4th Floor,
Government Colony, Bandra
(East), Mumbai.
04 The Special State Commissioner,
3rd Floor, H-Wing, Goods and
Service Tax Bhawan, Mazgaon,
Mumbai.
05 The State of Maharashtra,
through its Principal Secretary,
Home Department,
Mantralaya, Mumbai. Respondents
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Mr.S.S.Thombre, advocate for the petitioners.
Mr.Ashutosh Kumbhakoni, Advocate General with Mr.A.B.Girase,
Government Pleader and Mr.Akshay Shinde, advocate for
Respondents No.1 & 3 to 5.
Mr.M.B.Kolpe, advocate for Respondent No.2.
CORAM : R.M.BORDE AND
MANGESH S. PATIL, JJ.
RESERVED ON : 11TH JULY, 2019.
PRONOUNCED ON : 08TH AUGUST, 2019.
JUDGMENT (Per R.M.Borde, J.) :
1 In this group of petitions, the question, that arises for
consideration, is as regards methodology of filling in the vacancies
prescribed for horizontal reservation which flows from Article 16(1)
of the Constitution of India. Another question, that would be
required to be considered is, as to whether rule of
migration/shifting can be applied and to what extent.
2 In Writ Petition No.4159 of 2018, the petitioners are
objecting to the Government Circular dated 13.08.2014 and are
also praying to quash Clause 19 recorded in the call letters issued
to them. The petitioners participated in the process of selection
conducted by the Maharashtra Public Service Commission for
filling up vacancies for the posts of Deputy Collector, Deputy
Superintendent of Police, Assistant Commissioner of Police and
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such other posts. The posts have been earmarked under the
advertisement for various vertical and horizontal reservation
categories. The petitioners appeared for main examination and
have been declared qualified for the interview, which was
scheduled on 09.04.2018. It is recorded in the call letters issued to
the petitioners, "while filling up the posts from horizontal
reservation from general category, firstly the selection of the
candidates should be made on the basis of merit amongst all the
candidates including the backward category candidates also". The
candidates were directed to bring their school leaving certificate at
the time of interview for verifying as to which category they belong
to and from which category they have filled in their application
forms.
3 The petitioners contend that though they belong to
reserved category, they have filled in their application forms as a
general category candidates and have not claimed any benefit as a
member belonging to reserved category. In view of the Circular
dated 13.08.2014, issued by the State of Maharashtra, the
petitioners apprehend that since they belong to reserved category,
though they have not claimed any benefits of reservation, they will
not be considered for the unreserved vacancies even if they are
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qualified on the basis of their individual merit.
4 In an affidavit-in-reply presented on behalf of
Respondent - Maharashtra Public Service Commission, it is
recorded that the Circular dated 13.08.2014 is founded on the
earlier circular issued on 16.03.1999. The circular dated
16.03.1999 is based on the judgment delivered by the Hon'ble
Supreme Court in the matter of Anil Kumar Gupta Vs. State of
U.P. and others, (1995) 5 SCC 173. It is recorded in clause 5 of
the Circular dated 16.03.1999:
The first step is to prepare the select list
of open general competition category and then
to identify the available candidates in the list
claiming horizontal reservation. If the
candidates are available in the general select list
in adequate number claiming horizontal
reservation, then no need to select additional
candidates claiming horizontal reservation. If
there is short fall of the candidates claiming
horizontal reservation, then candidates from
respective categories are to be included in the
list.
The second step is to prepare the select
list of respective social reservation categories
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and adopt the same procedure prescribed in
Step 1 to accommodate the candidates
belonging horizontal reservation, if there is
shortfall.
5 According to Respondent - Maharashtra Public Service
Commission, in view of the Circular dated 13.08.2014, only the
candidates belonging to open (Non-reserved) category can be
considered for open horizontally reserved posts meaning thereby,
the reserved category candidates cannot be considered for open
horizontally reserved post. Reference is made to a communication
issued by the Additional Chief Secretary (Service) of the State of
Maharashtra dated 26.07.2017, whereunder it is prescribed that a
female candidate belonging to any reserved category, even if
tenders application form seeking employment as an open category
candidate, the name of such candidate shall not be recommended
for employment against a open category seat.
6 The petitioners contend that the stand taken by the
MPSC is fundamentally wrong and is not in consonance with the
interpretation put to the principles of reservation under the
Constitutional scheme.
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7 Writ Petition No.6578 of 2018 is presented by the
candidates belonging to open category to support precisely the
stand taken by the MPSC in the affidavit-in-reply presented in Writ
Petition No.4159 of 2018 and oppose claim raised by petitioners in
said petition. According to petitioners herein, in case of
compartmentalized horizontal reservation, no migration from one
category to another category is permissible and as such, even if a
candidate belonging to reserved category, who does not claim any
benefit of reservation and is desirous of competing as a general
category candidate, cannot be permitted to migrate and claim a
seat/post available for the open category.
8 In Writ Petition No.10837 of 2018, an objection is
raised to the Standing Order No.06 of 2014, dated 23.09.2014,
issued by the MPSC in respect of prescription of reservation for
women and sportsmen category candidates. Clause 6 of the
Standing Order records that the backward class candidates not
claiming any benefits available for reserved category, will not be
entitled to raise a claim in respect of the posts prescribed for open
horizontal reservation category. It is contended that the condition
recorded in the Standing Order is in breach of the Constitutional
provisions and as such, deserves to be struck down.
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9 Writ Petition No.10578 of 2018 raises a similar issue,
as has been raised in Writ Petition No.4159 of 2018. However,
petitioners herein belong to reserved category and have presented
their application forms as reserved category candidates. They
contend that they can compete for a seat prescribed for
open/general category and compartmentalization of open/general
category shall not be permitted.
10 Heard learned Counsel for respective parties.
11 Shri Kumbhakoni, learned Advocate General,
appearing for Respondent-State, submits that Constitutionally
there are two types of reservations, which may be described as
"vertical" and "horizontal". The same are set out as under:
(A) Vertical: These are "social" reservations
provided under Article 15(4) and/or 16(4) of the
Constitution. These are meant for Scheduled
Castes, Scheduled Tribes, Other Backward
Classes.
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(B) Horizontal: These are "special" reservations
provided under Article 15(1) and/or 15(3)
and/or 16(1) of the Constitution. These are
meant for Women, Physically Handicapped,
Freedom Fighters, Sportsmen, Retired Military
personnel, etc.
12 He further submits that, the Horizontal Reservations
can be sub-divided into two types, viz:
(A) Overall : In such cases, the percentage of
reservation is prescribed without any sub-
classification and is provided on 'an overall'
basis, for all categories including open and
reserved.
(B) Compartmentalized: In such cases, the
seats reserved for horizontal reservations are
proportionately divided among the vertical
reservations providing each category of vertical
reservation with a specific percentage and the
same is not interchangeable or inter-
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transferable.
13 The learned Advocate General also submits that there
is no separate category in law, recognized as "open category".
Firstly, irrespective of their colour i.e. category, in case of
education, all the seats and in case of employment all the posts, as
the case may be, are to be taken together. From and out of the
same, the reserved posts/seats are to be taken out and what is left
behind is commonly known as 'open category' or 'open competition
category' seats.
14 According to him, A reserved category candidate,
irrespective of whether he/she claims such reservation, as and by
way of vertical or horizontal, is always entitled to claim seat from
open category on the basis of his/her merit. This is particularly
because, the open category or quota as such, is meant for being
allotted only and only on merit and, therefore, in such an
allotment, the caste, creed or sex or any other criteria, relating to
any candidate, does not at all matter.
15 The learned Advocate General further submits that in
case a candidate belonging to any reserved category is able to
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secure allotment of seat, solely on the basis of his/her merit and
merit alone, such allotment cannot consume any seat, reserved for
the category to which such a candidate belongs. In such a case,
such an allotment, does not, in any manner, diminish the seats or
the posts as the case may be, reserved for the category to which
such candidate belongs.
16 He submits that the steps to be taken for making
allotments are very well settled by catena of decisions of the
Hon'ble Supreme Court. These steps may be summarized as
under:
(a) A common merit list will have to be drawn wherein,
each and every candidate will figure, strictly in accordance with
inter se merit, without applying any other criteria whatsoever.
Similarly, various separate merit lists need to be drawn for every
category, whether it is meant for vertical reservation or horizontal
reservation, on the basis of inter se merit of all the candidates
belonging to that particular category i.e. comprising of only those
candidates who are entitled to or eligible to claim benefit of the
particular, vertical or horizontal reservation.
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(b) Thereafter, in order to fully satisfy vertical and
horizontal, both reservations, following steps to be taken in the
same chronological order:
(i) All the seats provided for the unreserved or open
category to be filled in purely on the basis of merit and merit
alone, though provisionally, on the basis of the common merit list
prepared, without applying any criteria whatsoever, other than
merit.
(ii) All the seats from various vertical reservation
categories to be filled in completely, without applying criteria for
horizontal reservations. In selecting candidates by observing this
exercise, every candidate who has figured in the open category
allotment list to be excluded. The allotments so made in favour of
the reserved category candidates not to be counted towards the
consumption of the reserved category.
(iii) The open category list, as also each vertical reservation
list to be checked and verified to find out as to whether or not, the
horizontal reservations are satisfied automatically. If they are,
nothing more to be done.
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(iv) If it is found, upon such verification that, either
horizontal reservations are not satisfied or are partly satisfied,
then, appropriate number of candidates from the bottom of
respective lists are to be removed or deleted and candidates strictly
on the basis of merits, from the separate merit list prepared for the
respective horizontal reservation category are to be allotted those
seats, as and by way of replacement.
17 The learned Advocate General submits that in case if
the 'horizontal' reservations are specifically provided in a
'compartmentalized' manner i.e. providing fixed number or fixed
percentage of seats, for the specific vertical reservation (s), then
the same is not interchangeable or inter-transferable.
18 He also submits that however, even in case of
'compartmentalized' horizontal reservations, seats that are allotted
to the open category or quota, can be claimed by everybody and
anybody who is entitled to basically claim a seat or post as the
case may be, from the open category, which will obviously and of
course, include each and every candidate, from the merit list of the
open category i.e. all the candidates even belonging to any reserved
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category whichever, vertical or horizontal.
19 He also submits that the only exception to the
aforesaid rule now carved out by the Hon'ble Supreme Court is
that, if the applicable Rules or advertisement specifically provides
to the contrary, such migration shall not be permitted, from the
reserved category to the open category, for claiming
'compartmentalized' horizontal reservation provided for open
category. Thus, if it is specifically provided by the Rules or the
advertisement that, a person who has already enjoyed any benefit
during the process of selection, such as concession in fees,
relaxation of age, etc., as a reserved category candidate, then he or
she shall not be entitled to the benefit of migration from the
reserved category to open category for claiming seat or post, as the
case may be, meant for open category in case of a
'compartmentalized' horizontal reservation.
20 Shri Katneshwarkar, learned Counsel appearing for
the petitioners in W.P.No.6578 of 2018, contends that there can be
no dispute if a candidate from any category applies from open
category, he or she can be given placement in open category as per
his or her merit. There is no controversy involved as regards
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migration in vertical reservation because a candidate applying from
social backward category can migrate in open category in
accordance with his or her individual merit. However, it is
contended that the rule of migration is not applicable in
compartmentalized horizontal reservation and if migration is
allowed in compartmentalized horizontal reservation, then there
will be violation of Article 14 and Article 16(1) of the Constitution of
India.
21 According to Shri Katneshwarkar, if the principle of
migration/shifting is made applicable to the compartmentalized
horizontal reservation, then the provisions of Article 16(1) would
become redundant. The vertical reservation cuts across the
horizontal reservation and as such, it is an "interlocking"
reservation. The word "interlocking reservation" itself connotes
that the compartment of categories blocks automatically after
fulfilling the block. In view of the interlocking reservation
candidates in horizontal reservation interlocks in their respective
compartments and migration is impermissible. Reference is made
to various judgments and those would be considered at an
appropriate stage.
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22 It would be advantageous to record the relevant extract
from the Circular dated 13.08.2014:
'kklu ifji=d dzekad & ,lvkjOgh [email protected]
[email protected]@16&v] fnukad 13 vkWxLV] 2014 e/khy ifjPNsn
"¼v½ & izFke VIik & [kqY;k izoxkZrwu lekarj vkj{k.kkph ins
Hkjrkauk] xq.koRrsP;k fud"kkuqlkj [kqY;k izoxkZrhy mesnokjkaph
fuoM ;knh djkoh ¼;k fBdk.kh [kqY;k izoxkZr xq.koRrsP;k
vk/kkjkoj ekxkloxhZ; mesnokjkapkgh lekos'k gksbZy½ ;k
;knhr lekarj vkj{k.kkuqlkj vko';d [kqY;k izoxkZP;k
mesnokjkaph la[;k i;kZIr vlsy rjdks.krkgh iz'u mn~Hko.kkj
ukgh vkf.k R;kuqlkj ins Hkjkohr- tj ;k ;knr lekarj
vkj{k.kkuqlkj vko';d [kqY;k izoxkZP;k mesnokjkaph la[;k
i;kZIr ulsy rj [kqY;k izoxkZlkBh jk[kho lekarj vkj{k.kkph
ins Hkj.;kdjhrk lnj ;knhrhy vko';d i;kZIr la[;sbrds
'ksoVps mesnokj oxGwu lekarj vkj{k.kkl ik= mesnokjkaiSdh
dsoG [kqY;k izoxkZpsp vko';d i;kZIr la[;sbrds
mesnokj ?ks.ks vko';d vkgs-"
The said paragraph has been substituted with certain
modifications vide corrigendum dated 19.12.2018, which reads
thus:
"¼v½ & izFke VIik & [kqY;k izoxkZrhy ¼vjk[kho ins½
mesnokjkaph xq.koRrsP;k fud"kkuqlkj fuoM ;knh r;kj djkoh-
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;k ;knhr [kqY;k izoxkZr xq.koRrsP;k vk/kkjkoj ekxkloxhZ;
mesnokjkapkgh ¼vuqlwfpr tkrh] vuqlwfpr tekrh] fo-tk-Hk-t-]
fo-ek-iz-] b-ek-o- o ,lbZchlh½ lekos'k gksbZy- ;k ;knhr
lekarj vkj{k.kkuqlkj mesnokjkaph la[;k i;kZIr vlsy rj
dks.krkgh iz'u mn~Hko.kkj ukgh vkf.k R;kuqlkj ins Hkjkohr-
tj ;k ;knhr lekarj vkj{k.kkuqlkj vko';d mesnokjkaph
la[;k i;kZIr ulsy rj lekarj vkj{k.kkph ins Hkj.;kdjhrk
lnj ;knhrhy vko';d i;kZIr la[;sbrds 'ksoVps mesnokj
oxGwu ik= mesnokjkaiSdh vko';d i;kZIr la[;sbrds lekarj
vkj{k.kke/khy xq.koRrsuqlkj ik= mesnokj ?ks.ks vko';d vkgs-"
23 The learned Advocate General contends that reference
to the phrase "open category" in the circular dated 13.08.2014 is
comprehensive in nature and is inclusive of all categories, reserved
and unreserved. The confusion that was created by making
reference to words, "open category" in Circular dated 13.08.2014
has been set at rest by deleting the said words and by substituting
the words, "candidates eligible for horizontal reservation category
seat on the basis of individual merit".
24 Considering the explanation tendered and in view of
the corrigendum, there should be no confusion that the candidates
claiming reservation would be entitled to occupy the post on the
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basis of individual merit while filling up vacancies from amongst
the horizontal reservation category and that the induction of a
candidate is not restricted to open category, in any case as
excluding the reservation category candidates.
25 It would be appropriate, at this stage, to consider the
law laid down by the Hon'ble Supreme Court while interpreting the
Constitutional aspects of horizontal reservation and the
methodology of filling in the posts.
26 In the matter of Anil Kumar Gupta and others Vs.
State of U.P. and others, (1995) 5 SCC 173, the distinction
between "compartmentalized" reservation and "overall" reservation
has been clarified. Where the seats reserved for horizontal
reservations are proportionately divided among the vertical (social)
reservations and are not inter-transferable, it would be a case of
compartmentalized reservation. As against this, in the overall
reservation while allocating the special reservation candidates to
their respective social reservation category, the overall reservation
in favour of special reservation categories has to be honoured. In
case of overall reservation, if no special reservation category
{24}
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candidate belonging to Scheduled Castes, Scheduled Tribe is
available, then the proportionate number of seats meant for special
reservation candidates in Scheduled Castes and Scheduled Tribe
categories also gets transferred to OC category. 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
OC, OBC, SC and ST will not be altered. In paragraph no.18 of the
judgment in the case of Anil Kumar Gupta (supra), it is observed
thus:
"18 Now, coming to the correctness of the
procedure prescribed by the revised notification
for filing up the seats, it was wrong to direct the
fifteen per cent special reservation seats to be
filled up first and then take up the OC (merit)
quota (followed by filing of OBC, SC and ST
quotas). The proper and correct course is to first
fill up the OC quota (50%) on the basis of merit;
then fill up each of the social reservation quotas,
i.e., SC, ST and BC; 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
overall horizontal reservation - no further
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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 compartmentalised
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 per cent 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 OC
quota."
27 In paragraph no.20 of the judgment, while making
reference to OC category, the Court has observed that,
"......It is made clear that OC category means
the merit list and no distinction shall be made
among the candidates in the OC list on the
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basis of their social status because it is well
settled that even a ST/SC/OBC candidate is
entitled to obtain a seat in the OC category on
the basis of his merit."
28 In the matter of Rajesh Kumar Daria Vs. Rajasthan
Public Service Commission & others, (2007) 8 SCC 785, the
appellant - Rajesh and the 3 rd appellant in the connected matter
were the candidates belonging to OBC category and the 5
appellants in the connected appeal were belonging to Open
category and they were not selected. According to them, women
candidates are selected in excess of their reservation quota. They
contend that though the rules provide for 20% horizontal
reservation for women categorywise, the Rajasthan Public Service
Commission, while preparing the selection list, had wrongly
applied the principles of vertical reservation and had selected
women in excess of the quota, thereby denying selection of the
appellants and other male candidates. According to them, they
had secured higher marks than the selected women candidates,
but as a result of excess selection of women candidates, they have
not been selected. The writ petitions presented by them have been
dismissed and as such, they approached the Hon'ble Supreme
Court. Rule 9(3) of the Rajasthan Judicial Service Rules provides
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20% categorywise reservation for women candidates in direct
recruitment. It is provided, 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 to. While dealing with the
issue, the Hon'ble Supreme Court has referred to the observations
of the Constitutional Bench in the matter of Indra Sawhney Vs.
Union of India, 1992 Supp (3) SCC 217, which reads thus:
"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
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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 reservation in favour of Backward
Class of citizens remains - and should remain -
the same."
29 It cannot be disputed that a special provision for
women candidates, made under Article 15(3), is a special
reservation as contrasted from the social reservation under Article
16(4). The methodology of implementing the special reservation,
referred to in the matter of Anil Kumar Gupta (supra ), is quoted
herein-above.
30 In paragraph 9 of the judgment in the matter of
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Rajesh Kumar Daria (supra), it is recorded thus:
"9 The second relates to the difference
between the nature of vertical reservation and
horizontal reservation. Social reservations in
favour of SC, ST and OBC under Article 16(4)
are "vertical reservations". Special reservations
in favour of physically handicapped, women,
etc., under Articles 16(1) or 15(3) are
"horizontal reservations". Where a vertical
reservation is made in favour of a Backward
Class under Article 16(4), the candidates
belonging to such Backward Class, may
compete for non-reserved posts and if they are
appointed to the non-reserved posts on their
own merit, their number will not be counted
against the quota reserved for respective
Backward Class. 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, R.K. Sabharwal v. State of
Punjab, Union of India v. Virpal Singh
Chauhan and Ritesh R. Sah v. Dr.Y.L. Yamul.)
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But the aforesaid principle applicable to
vertical (social) reservations will not aply 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
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."
31 It is, thus, clear that the candidates belonging to
backward class may compete for non reserved post and if they are
appointed to the non reserved posts on the basis of their own
merit, their number will not be counted against the quota reserved
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for the respective Backward class.
32 So far as the horizontal reservation is concerned, a
different procedure has been prescribed, which is recorded in the
above noted paragraph. In the event of short fall only, after
perusal of the merit list, such short fall in horizontal reservation
category shall be met by deleting requisite number of candidates
from the respective reserved categories and by substituting them
from the same category. Thus, the horizontal reservation category
candidate selected on the basis of merit within the vertical
reservation quota, will have to be counted against the horizontal
reservation category.
33 A reference can be made to a judgment in the matter of
Public Service Commission, Uttaranchal Vs. Mamta Bisht and
others, AIR 2010 SC 2613, wherein the principles laid down in the
matter of Rajesh Kumar Daria have been reiterated. It is observed
in the judgment that the reserved category candidate getting
appointed against a non reserved post will not be counted against a
reserved quota and the aforesaid principle applies to vertical
(social) reservation only and does not apply to horizontal
reservation for women, handicapped persons, etc.
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34 In the matter of Deepa E.V. Vs. Union of India and
others, (2017) 12 SCC 680, it is held that in the event relaxation is
granted to a reserved category candidate in respect of age-limit,
experience, criteria for qualifying marks, etc., such candidate
cannot claim right to be appointed under open/general category.
In the reported matter, the appellant before the Hon'ble Supreme
Court had secured 82 marks and she was placed in the list of
candidates belonging to OBC category. One Ms. Serene Joseph
from OBC category, who had secured 93 marks, was selected and
appointed. So far as general category is concerned, no candidate
had secured the minimum cuf-off marks i.e. 70 marks. The
appellant filed a writ petition to the High Court, which came to be
dismissed. Being aggrieved thereby, she approached the Hon'ble
Supreme Court. It was held by the Hon'ble Apex Court that the
appellant, who had applied from OBC category by availing age
relaxation and also attending the interview under the OBC
category, cannot claim right to be appointed under the General
category. The Office Memorandum specifically records that the
candidates securing relaxed standards in respect of age-limit,
experience, qualification, permitted number of chances in written
examination, extended zone of consideration larger than what is
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provided for general category candidates, they would be counted
against the reserved vacancies and such candidates would be
deemed as unavailable for consideration against unreserved
vacancies. So far as the applicability of principle in the mater of
Jitendra Kumar Singh Vs. State of Uttar Pradesh, (2010) 3 SCC
119, it was held that the said principle cannot be made applicable
in view of the express bar prohibiting consideration of the
candidates from general category. In the circumstances, the Court
had taken a view that the relaxation granted to reserved category
candidates will operate a level playing field.
35 It would be appropriate to consider the judgment of the
Hon'ble Supreme Court in the matter of Gaurav Pradhan & others
Vs. State of Rajasthan & others, (2018) 11 SCC 352, wherein the
Hon'ble Apex Court has reiterated the proposition laid down in the
matter of Deepa E. V. (supra), concerning the migration of
horizontal reservation category candidates to open category. The
issue that arose for consideration was, whether the reserved
category candidates who had taken benefit of age relaxation in the
selection process in question and have obtained marks equal to or
more than the last general category candidate, would be treated in
the general/open category candidates or ought to have been
{34}
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confined in the reserved category. The Hon'ble Apex Court has
referred to the judgment in the matter of Jitendra Kumar Singh
(supra), and observed that it should be read in the context of the
statutory provisions and the Government Order and it is further
held that the observations in the matter of Jitendra Kumar Singh
cannot be applied in a case where Government Orders are to the
converse effect. It is recorded that in the matter of Jintendra
Kumar Singh, the view was based on statutory scheme and
circular dated 25.03.1994 has to be confined to the scheme
which was under consideration, and intention of the State
Government as indicated from the said scheme cannot be
extended to a case where the State circulars are to the
contrary especially when there is no challenge to the converse
scheme as delineated by circular dated 24.06.2008. In
paragraph 37 of the judgment, it is recorded thus:
"37 The judgment of this Court in Deepa E. V.
fully supports the case of the appellants. In
Deepa E. V. case also the Circular of the
Central Government dated 01.07.1998/
02.07.1997 provided the relevant provision,
which is to the following effect (SCC pp.682-83,
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para 6)
"6 In other words, when a relaxed
standard is applied in selecting
SC/ST/OBC candidates, for example in
the age-limit, experience, qualification,
permitted number of chances in written
examination, extended zone of
consideration larger than what is provided
for general category candidates, etc., the
SC/ST/OBC candidates are to be counted
against reserved vacancies. Such
candidates would be deemed as
unavailable for consideration against
unreserved vacancies."
(emphasis in original)
36 The observations made in paragraphs no.48 and 49
are relevant for consideration, which read thus:
"48 We are thus of the opinion that the
Division Bench erred in modifying the judgment
of the learned Single Judge and holding that
candidates availing relaxation of age belonging
to reserved category candidates who find place
in merit list of the general/open category has to
be treated to be included in the general/open
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category. The above conclusion of the Division
Bench is unsustainable for the reason as
indicated above.
49 In view of the foregoing discussion, we are
of the considered opinion that the candidates
belonging to SC/ST/BC, who had taken
relaxation of age, were not entitled to be
migrated to the unreserved vacancies; the State
of Rajasthan has migrated such candidates who
have taken concession of age against the
unreserved vacancies which resulted
displacement of a large number of candidates
who were entitled to be selected against the
unreserved category vacancies. The candidates
belonging to unreserved category who could not
be appointed due to migration of candidates
belonging to SC/ST/BC were clearly entitled for
appointment which was denied to them on the
basis of the above illegal interpretation put by
the State. We, however, also take notice of the
fact that the reserved category candidates who
had taken benefit of age relaxation and were
migrated on the unreserved category candidates,
are working for more than last five years. The
reserved category candidates who were
appointed on migration against unreserved
vacancies are not at fault in any manner. Hence,
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we are of the opinion that SC/ST/BC candidates
who have been so migrated in reserved vacancies
and appointed, should not be displaced and
allowed to continue in respective posts. On the
other hand, the unreserved candidates who
could not be appointed due to the above illegal
migration are also entitled for appointment as
per their merit. The equities have to be adjusted
by this Court."
37 In the matter of Smt.Kanchan Vishwanath Jagtap
Vs. Maharashtra Administrative Tribunal, Nagpur Bench &
others, (Writ Petition No.1925 of 2014, etc., decided on 16.12.2015),
it was noticed by the Court that the reservation prescribed under
the advertisement was overall reservation and not
compartmentalized reservation. It was, thus, held that the case
would not be governed by the law laid down by the Hon'ble Apex
Court in the case of Rajesh Kumar Daria (supra). Since the
petitioners therein, who were found to be most meritorious
amongst all the candidates, it was held that they can be
considered and permitted to migrate to open category.
38 The petitioner in Writ Petition No.3929 of 2015,
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decided on 30th March, 2016, - Asha d/o Ramnath Gholap, was a
candidate belonging to OBC category and secured highest number
of marks in female category and as such staked her claim for the
seat prescribed for female open category which was denied to her
and the candidates securing lesser marks were considered. The
issue arose for consideration was, whether the petitioner, who had
applied for the post of Pharmacist from the reserved category, more
particularly scheduled caste, can claim her selection on one of the
three (3) posts horizonatally reserved for open Female category on
the basis that amongst the female candidates, she has secured
second highest marks? The judgment of the Hon'ble Apex Court
in the matter of Rajesh Kumar Daria (supra), so also the circular
issued by the State on 13.08.2014 have been referred. The
interpretation put to "open category" in the matter of Bihari Lal
Rada Vs. Anil Jain (Tinu) and others, (2009) 4 SCC 1, has been
referred to in the judgment. It is recorded thus:
"There is no separate category like general
category. The expression belonging to the
general category wherever employed means the
seats or offices earmarked for persons
belonging to all categories irrespective of their
caste, class or community of tribe. The
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unreserved seats euphemistically described as
general category seats are open seats available
for all candidates who are otherwise qualified to
contest to that office.
39 The Division Bench, thus, proceeded to accept the
prayer of the petitioner and directed that she be appointed on the
basis of her individual merit as a candidate belonging to female
open category.
40 Even in case of compartmentalized horizontal
reservations, the seats that are allotted to open category or quota,
can be claimed by anybody and everybody, who is entitled to claim
a seat or post on the basis of merit, which will include candidates
even belonging to open category i.e. all candidates even belonging
to any reserved category whichever, horizontal or vertical.
However, the only exception can be carved out, as has been
stipulated in the judgment of the Hon'ble Supreme Court that if
the applicable rule or the advertisement specifically provide to the
contrary, such migration shall not be permitted from the reserved
category to the open category for claiming compartmentalized
reservation provided for open category. Those candidates
belonging to reserved category, who have already enjoyed the
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wp415918-3.odt
benefits during the process of selection, such as concession in
fees, relaxation of age, relaxation in the merit criteria, would not be
eligible to claim benefits of migration from reserved category to
open category for claiming a seat or post.
41 In the matter of Sangita Gopal Chaudhari Vs. The
State of Maharashtra & others (Writ Petition No.8481 of 2018,
decided by the Division Bench, the petitioner therein, belonging to
reserved category, had specifically applied from open category and
did not claim benefits of reservation. The issue in respect of
shifting from reserved category to open category, therefore, was not
considered and she was held to be entitled to claim benefit of
migration.
42 The petitioner in Writ Petition No.5397 of 2016,
decided by the Division Bench of this Court at Mumbai on
23.01.2019, was a candidate belonging to N.T. "C" category.
However, in the application form for the post of Assistant
Commissioner/Project Officer Grade-II, Group-B. She stated that
her application may be considered from open category and also
paid fees prescribed for open category candidates. She was not
permitted to compete from the open women category and the
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challenge raised by her to the decision of MPSC has been turned
down by the Maharashtra Administrative Tribunal. The Division
Bench, referring to the earlier judgment in the matter of Kanchan
Vishwanath Jagtap (supra) and also referring to the Constitution
Bench judgment in the matter of Indra Sawhney (supra), has
observed that since the petitioner is meritorious and has opted to
be considered from open category, she cannot be denied an
opportunity to compete. The earlier judgment of the Division
Bench in the matter of State of Maharashtra Vs. Irfan Mustafa
Shaikh and others (Writ Petition No.272 of 2010, decided on
15.11.2010), was considered and the Court has observed that it
cannot be treated as ratio decidendi. On the contrary, the view
taken by the Division Bench in the matters of Asha Ramnath
Gholap and Kanchan Vishwanath Jagtap (supra) has been
approved to be a correct view and is relied upon.
43 There is no dispute, according to Shri Katneshwarkar,
learned Counsel appearing for petitioners in Writ Petition No.6578
of 2018, that if any candidate from reserved category tenders
application from the open category, he/she may be considered and
given placement in open category in accordance with his/her
individual merit. There is no controversy in respect of migration of
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candidate from one category to another category in case of vertical
reservation since a candidate applying from social reservation
category can migrate in open category in accordance with his
individual merit.
44 It is further contended that in case of
compartmentalized reservation, as in the instant case, it is not
permissible to migrate from one category to another
compartmentalized horizontal reservation category. The principle
of migration/shifting cannot be made applicable to the
compartmentalized horizontal reservation, which would render the
provisions of Article 16(1) redundant.
45 Reliance is placed by the Respondents, including Shri
Katneshwarkar, learned Counsel appearing for petitioners in
W.P.No.6578/2018, on the judgments in the matter of:
(a) Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217;
(b) Anil Kumar Gupta Vs. State of Uttar Pradesh &
others, (1995) 5 SCC 173;
(c) Rajesh Kumar Daria Vs. Rajasthan Public Service
Commission & others, (2007) 8 SCC 785;
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(d) Public Service Commission, Uttaranchal Vs. Mamta
Bisht and others, AIR 2010 SC 2613;
(e) Miss Rajani d/o Shaileshkumar Khobragade Vs. The
State of Maharashtra & others (W.P.No.10103/2015,
decided on 31.03.2017);
(f) Ashish Kumar Pandey Vs. State of U.P., 2016 SCC Online
All 187;
46 Apart from the aforesaid judgments, reference to which
is made in the above-mentioned paragraphs of this judgment, our
attention is invited to the judgments in the matter of:
(I) Deepa E.V. Vs. Union of India and others, (2017) 12 SCC 680;
(ii) Gaurav Pradhan & others Vs. State of Rajasthan & others,
(2018) 11 SCC 352
(ii) Niravkumar Dilipbhai Makwana Vs. Gujrat Public Service
Commission; MANU/SCOR/06453/2018; to contend that a
candidate belonging to backward category, at any stage of
recruitment, if avails relaxation, exemption, concession, which is
not available to the open category candidates, then in such
circumstances, a candidate belonging to reserved category cannot
migrate to the merit list of general category on the basis of his
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individual merit.
47 Shri Katneshwarkar, learned Counsel appearing for
petitioners in W.P.No.6578/2018, thus, urges to issue directions to
the respondents to prepare afresh recommendation list of the
candidates in view of the principles laid down in the judgments of
the Hon'ble Supreme Court, referred to above.
48 On consideration of judgments of the Hon'ble Supreme
Court, reference to which has been made in this judgment,
following conclusions emerge:
(i) There are two types of reservations, which may be
described as "vertical" and "horizontal". Vertical reservations are
"social" reservations provided under Article 15(4) and/or 16(4) of
the Constitution. Those are meant for Scheduled Castes,
Scheduled Tribes and Other Backward Classes. "Horizontal"
reservation is provided under Article 15(1) and/or 16(1) of the
Constitution and those are available to women, physically
handicapped, freedom fighters, sportsmen, Retired Military
personnel, etc.
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(ii) In case the seats reserved for "horizontal" reservations
are proportionately divided among the vertical (social) reservations
and are not inter-transferable. It would be a case of
compartmentalized reservation.
(iii) As against this, what happens in "overall" reservation
is that while allocating the special reservation category candidates
to their respective social reservation, overall reservation in favour
of special reservation categories is to be honoured.
(iv) The proper and correct course is to first fill up the OC
quota on the basis of merit; then fill up each of the social
reservation quota, i.e. Scheduled Castes/Scheduled Tribes and
Other Backward Class. The third step would be to find out how
many candidates belonging to "special" reservation category have
been selected on the above basis. If the quota fixed for horizontal
reservation is already satisfied - in case it is an overall 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 category by deleting the corresponding number
of candidates therefrom. If, however, it is a case of
{46}
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compartmentalized horizontal reservation, then the process of
verification and adjustment/accommodation, as stated above,
should be applied separately to each of the vertical reservations.
(See: Anil Kumar Gupta & Rajesh Kumar Dariya (supra)
(v) There is no separate category in law recognized as
open category. Open or Open Competition category consists of all
the seats and the categories.
(vi) It also cannot be disputed that a reserved category
candidate claiming reservation as and by way of horizontal or
vertical reservation, is always entitled to claim seat from open
category as per his/her individual merit. This is particularly
because open category or quota as such is meant to be fulfilled
from amongst all categories and only on the basis of merit. In
such allotments, caste, creed, sex or any other criteria relating to
any candidate does not at all matter. If a candidate belonging to
any reserved category is able to secure allotment of seat, solely on
the basis of his merit, such seat or post is not liable to be counted
against the said reserved category. Whereas, in case of horizontal
reservations, the position is otherwise. The procedure prescribed
for preparing the select list in the circulars dated 13.08.2014 and
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wp415918-3.odt
19.12.2018 is correctly recorded. The reference to "open" seats in
the circular dated 13.08.2014 shall be construed as a category
comprising of the candidates on the basis of open competition and
includes all reservation categories. The subsequent circular dated
19.12.2018 is of explanatory nature.
(vii) The horizontal reservation specifically provided in
compartmentalized manner is not interchangeable or inter-
transferable. The ratio of the judgment in the matter of Jitendra
Kumar Singh (supra) has to be read in the context of statutory
provisions and the Government Order dated 25.03.1994 and the
said observations cannot be applied in case where the Government
Orders are to the converse effect.
(viii) when a relaxed standard is applied in selecting
SC/ST/OBC candidates, for example in the age-limit, experience,
qualification, permitted number of chances in written examination,
extended zone of consideration larger than what is provided for
general category candidates, etc., the SC/ST/OBC candidates are
to be counted against reserved vacancies. Such candidates would
be deemed as unavailable for consideration against unreserved
vacancies. In the same context, when candidates availed of the
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relaxed standards, they are not entitled to claim migration to the
open category.
Deepa E.V. And Gaurav Pradhan (supra)
49 For the reasons recorded above and in view of the
conclusions drawn in the above noted paragraphs, in the instant
petitions,
(I) The candidates, who have applied from amongst the
open category and who have not availed of any benefits of relaxed
standards such as relaxation in age limit, qualification, percentage
of qualifying marks, experience, etc., are entitled to be considered
on the basis of their individual merit from amongst open
competition category, as candidates belonging to open category.
(II) In case of compartmentalized reservation, candidates
claiming horizontal reservation, shall not be permitted to migrate
to horizontal open competition category.
(III) The insistence by the Maharashtra Public Service
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Commission to the candidates who have applied from open
category though they belong to reserved category, to submit the
proof in respect of their caste, is uncalled for, since the candidates
who have applied from open category and have not secured any
benefits available for reserved category, are entitled to claim the
seat/post available for horizontal open competition category.
(IV) The directive contained in the letter dated 26.07.2017,
issued by the Additional Chief Secretary, General Administration
Department, Government of Maharashtra, not to consider the
claim of the reserved category candidates who have tendered
applications as a general category candidates for the seat/post
prescribed for horizontal open competition category, is uncalled for
and shall not be acted upon.
(V) The decisions in the matters of Deepa E.V. and
Gaurav Pradhan (supra), governing the procedure for selection,
laying down the parameters for migration, are binding upon the
respondents.
(VI) The procedure in respect of preparation of the select
list of candidates referred to in sub-paragraphs (i) to (iv) as under,
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shall have to be followed:
(i) All the seats provided for the unreserved or
open category to be filled in purely on merit and merit
alone, though provisionally, on the basis of the
common merit list prepared, without applying any
criteria whatsoever, other than merit.
(ii) All the seats from various vertical
reservation categories to be filled in completely,
without applying horizontal reservations. In selecting
candidates by undertaking such exercise, every
candidate who has figured in the open category
allotment list to be excluded. The allotments so made
in favour of the reserved category candidates not be
counted towards the consumption of the reserved
category.
(iii) The open category list, as also each vertical
reservation list to be checked and verified to find out
as to whether or not, the horizontal reservations are
satisfied automatically. If they are, nothing more to be
{51}
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done.
(iv) If it is found, upon such verification that,
either horizontal reservations are not satisfied or are
partly satisfied, then, appropriate number of
candidates from the bottom of respective lists to be
removed or deleted and candidates strictly on merits,
from the separate merit list prepared for the respective
horizontal reservation category to be allotted those
seats, as and by way of replacement.
50 In view of the conclusions, as recorded above, all these
writ petitions stand disposed of. In view of disposal of writ
petitions, pending Civil Applications do not survive and stand
disposed of.
MANGESH S. PATIL R.M.BORDE
JUDGE JUDGE
adb/wp
