Page No.# 1/29 vs The State Of Assam And 15 Ors
2025 Latest Caselaw 8347 Gua

Gauhati High Court

Page No.# 1/29 vs The State Of Assam And 15 Ors on 7 November, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                Page No.# 1/29

GAHC010039132025




                                                           2025:GAU-AS:15058

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/1097/2025

         MITRA CHAKRABORTY (KANU)
         W/O- DULAN CHAKRABORTY, R/O- HOUSE NO. 15, NILANJANA
         APARTMENT , 4TH FLOOR, AMBICAPATTY, SILCHAR, ASSAM, PIN-788004



         VERSUS

         THE STATE OF ASSAM AND 15 ORS.
         REP. BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM, DISPUR,
         GUWAHATI-06.

         2:THE LEGAL REMEMBRANCER AND SECRETARY TO THE GOVT. OF
         ASSAM

          JUDICIAL DEPARTMENT
          DISPUR
          GUWAHATI
          ASSAM
          PIN-781006.

         3:THE GAUHATI HIGH COURT

          REPRESENTED BY THE REGISTRAR GENERAL
          GAUHATI HIGH COURT AT GUWAHATI
          ASSAM

         PIN-781001

         4:THE DISTRICT AND SESSIONS JUDGE

          CACHAR
          SILCHAR
          ASSAM
                                                       Page No.# 2/29

PIN-788001.

5:THE SELECTION BOARD
 CONSTITUTED PURSUANT TO THE ADVERTISEMENT DATED 10-08-2022

C/O THE OFFICE OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
PIN-788001.

6:SHRI SUPRAJIT BARMAN
 ST (P) CANDIDATE AND EXCESS SELECTEE/APPOINTEE TO POST OF
GRADE-IV STAFF
 C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
 CACHAR
 SILCHAR
ASSAM
 PIN-788001.

7:SRI INDRAJIT PAUL
 OBC CANDIDATE AND EXCESS SELECTEE/APPOINTEE TO POST OF
GRADE-IV STAFF
 C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
 CACHAR
 SILCHAR
ASSAM

PIN-788001.

8:SMT. SUMANA PAUL

OBC WOMEN CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
ASSAM
PIN-788001.

9:SRI LITON DEB

LAT PLACED GEN/UR CANDIDATE AND SELECTEE TO POST OF GRADE-IV
STAFF
C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
ASSAM
PIN-788001
                                                        Page No.# 3/29

10:MR RAJESH KHESRA

CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
ASSAM
PIN-788001

11:IMDADUL HAQUE MAZUMDER

U R CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
ASSAM
PIN-788001

12:SRI BIRU BORAIK

OBC CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
ASSAM
PIN-788001

13:SRI BIRABAHU SINHA

OBC CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
ASSAM
PIN-788001

14:SRI RATISH DAS

SC CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
CACHAR
SILCHAR
ASSAM
PIN-788001

15:SRI PRIYO PAMEI

ST CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
                                                                            Page No.# 4/29

          C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
          CACHAR
          SILCHAR
          ASSAM
          PIN-788001

          16:SRI HANNAN UDDIN CHOUDHURY
           EWS CANDIDATE AND SELECTEE TO POST OF GRADE-IV STAFF
           C/O ESTABLISHMENT OF THE DISTRICT AND SESSIONS JUDGE
           CACHAR
           SILCHAR
          ASSAM
           PIN-78800

                                        BEFORE
            HON'BLE MR. JUSTICE DEVASHIS BARUAH

                For the Petitioner(s)     : Mr. R. J. Das, Advocate

                For the Respondent(s)     : Mr. T. J. Mahanta, Sr. Advocate

: Ms. P. Sarma, Advocate : Mr. H. K. Das, SC, GHC : Mr. K. Gogoi, Government Advocate : Mr. S. Das, Advocate

· Date on which Judgment was reserved : 07.08.2025

· Date of Pronouncement of Judgment : 07.11.2025

· Whether the pronouncement is of the Operative Part of the judgment : Yes

· Whether the full Judgment has been Pronounced : No

JUDGMENT AND ORDER (CAV)

Heard Mr. R. J. Das, the learned counsel appearing on behalf of the Petitioner and Mr. K. Gogoi, the learned Government Advocate appearing on behalf of the Respondent Nos. 1 and 2. I have also heard Mr. T. J. Mahanta, Page No.# 5/29

the learned Senior counsel assisted by Ms. P. Sarma, the learned counsel along with Mr. H. K. Das, the learned Standing counsel of the Gauhati High Court appearing on behalf of the Respondent Nos. 3, 4 & 5 and Mr. S. Das, the learned counsel appearing on behalf of the Respondent Nos. 6 to 16.

2. The present petition has been filed challenging the select list dated 18.02.2024 and seeking directions that the highest ranked woman candidate in the Unreserved category covering four vacancies after making necessary corrections and/or deletions in the list of successful candidates be incorporated in the fresh select list. The Petitioner has also assailed the advertisement dated 10.08.2022 on the ground that the said advertisement is in violation of the Assam Women (Reservation of Vacancies in Service and Posts) Act, 2005 (for short 'the Act of 2005') and the Rules framed therein under.

3. The facts leading to the filing of the present petition are that an advertisement was issued on 10.08.2022 by the Respondent No.4 inviting applications for filling up of Grade-IV post in the establishment of the District and Sessions Judge, Cachar, Silchar. From a perusal of the said advertisement, it is seen that there are total 11 Nos. of posts and the eligibility criteria was that the candidates must have passed Class VIII or read up to Class XII and those candidates who have passed Class XII or above, shall be ineligible to apply. It was also mentioned that the candidates possessing special skills would be given preference. Further to the said, it is also relevant to take note of that out of the 11 (eleven) posts, 4 (four) posts were earmarked for the Unreserved category; 3 (three) posts for OBC/MOBC, 1 (one) post for ST(H); 1 (one) post for ST(P), 1 (one) post for Page No.# 6/29

SC and 1 (one) post for EWS. The said advertisement also mentioned that the horizontal reservation in respect of PWD and women candidates would be provided as per the Government Rules.

4. This Court further finds it relevant to observe that at Clause 3 of the terms and conditions of the advertisement, it was stipulated that the applications must be submitted with self-attested copies of all testimonials/certificates in support of age, educational qualification and caste etc. along with 4 (four) recent passport size photographs with the application with mobile number preferably whatsapp number. The applications were required to be submitted during the office hours on or before 31.08.2022 and it was also mandated that no application would be entertained beyond the said period. The Petitioner along with various other candidates applied for the said posts advertised vide the advertisement dated 10.08.2022.

5. Before further proceeding, it is relevant to observe that the Petitioner at the latter stage of the present proceedings stated her claim that she belongs to the OBC category. The materials on record however show that the Petitioner applied as a General candidate. This aspect this Court would be dealt with in more detail at the later stage of the present judgment.

6. Moving forward, it is relevant to note that the evaluation was made by the Selection Board and the total marks obtained in the written and viva voce by all the candidates were published by the office of the Respondent No.4. The said evaluation sheet of 75 candidates who participated in the said selection process is enclosed as Annexure-2 to the writ petition.

Page No.# 7/29

7. From a perusal of the said evaluation sheet, it is seen that out of 100 marks, the Petitioner secured 74 marks and was placed at Serial No.19 on merits. Pursuant thereto, a select list was published on the basis of an order dated 18.02.2024 which is the subject matter of challenge in the instant proceedings.

8. The Petitioner thereupon submitted an application under the Right to Information Act, 2005 seeking various information and the Assistant Public Information Officer, Cachar, Silchar duly provided such information vide a communication dated 16.03.2024. It is also pertinent to take note of Annexure-5 to the writ petition which is the application form submitted by the Petitioner. A perusal of the said application form reveals that the writ petitioner applied as a General category candidate.

9. The records further reveal that the Petitioner had filed a writ petition earlier which was registered and numbered as WP(C) No.2107/2024 on the same issue. However in the said petition, the Petitioner did not array the selected candidates as Respondents. Resultantly, the Petitioner withdrew the said writ petition with a liberty to file afresh by curing the formal and technical defects. It is under such circumstances, the present writ petition has been filed.

10. The case of the Petitioner herein is that the Petitioner ought to have been selected amongst the 4 posts kept for Unreserved category as she is the only woman in the Unreserved category having obtained the highest marks. Therefore, it is the case of the Petitioner that instead of the Respondent No.9 being selected, the Petitioner ought to have been selected in terms with the advertisement as well as the Act of 2005 and the Assam Page No.# 8/29

Women (Reservation of Vacancies in Services and Post) Rules, 2005 (for short 'the Rules of 2005'). It is under such circumstances, the Petitioner has assailed the select list dated 18.02.2024 by seeking cancellation and further directions that a fresh select list be made incorporating the name of the Petitioner as the highest ranked woman candidate in the Unreserved category.

11. The record reveals that upon filing of the instant writ petition, this Court issued notice vide an order dated 03.03.2025 thereby granting liberty to the Respondents to bring on record their stand by filing affidavit.

12. An affidavit-in-opposition was filed on behalf of the Respondent Nos. 3 and 4 on 30.04.2025. Apart from stating the facts which have already been mentioned hereinabove, it was averred that the Petitioner participated in the selection process as a Unreserved category candidate and she secured 74 marks. The Petitioner was placed at Serial No.19 on the consolidated merit list. It is further mentioned that it is a trite law that if a candidate belonging to Reserved categories are entitled to be selected on the basis of their own merit amongst the Unreserved category, his/her their selection cannot be counted against the quota reserved for the categories that they belong and this aspect is provided in Rule 4(a) of the Assam Schedule Caste and Scheduled Tribe (Reservation in Vacancies in Services and Posts) Rules, 1978. It was further mentioned that there was a mistake in the selection of the candidates under the Unreserved category inasmuch as, the Respondent No.9 could not have been brought within the ambit of the merit list dated 18.02.2024 in view of the 30% reservation applicable in terms with the Act of 2005. It was averred that instead of the Respondent No.9, the Page No.# 9/29

Respondent No.8, though an OBC candidate ought to have been selected in the Unreserved category as she secured the highest rank among all women candidates irrespective of Reserved or Unreserved category. It was further stated that, as the Respondent No.8 ought to have been selected against the Unreserved posts for filling up the post reserved for the OBC candidate, the next person belonging to the OBC category who was not selected in the merit list, namely Smti. Rubi Nath ought to have been selected as an OBC candidate. It was also mentioned that under such circumstances, the select list dated 18.02.2024 is required to be recasted by adjusting the selection of the Respondent No.8 against the Unreserved woman category instead of OBC category in place of the Respondent No.9 and further inclusion of Smti. Rubi Nath against OBC woman category. It was mentioned that the Petitioner under no circumstances could have been selected as there is no scope for the Petitioner to find a place in the select list dated 18.02.2024.

13. The Petitioner thereupon submitted a reply reiterating and reaffirming the statements made in the writ petition. In the said affidavit-in-reply, the Petitioner enclosed a certificate dated 27.09.2024 issued much later from the last date for submission of the application that the Petitioner belongs to Modi (Tea Garden Labourers/Tea Garden Tribes/Ex-Tea Garden Labourers/Ex-Tea Garden Tribes) caste/community recognized as Other Backward Class/More Other Backward Class by the Government of Assam.

14. The Respondent Nos.6 to 16 had also filed an affidavit-in-opposition thereby supporting the case of the Official Respondents. It was averred in the said affidavit-in-opposition filed by the Respondent Nos. 6 to 16 which includes Smti. Sumana Paul and Shri Liton Deb that 30% reservation of Page No.# 10/29

posts for women is a horizontal reservation and is compartmentalized with each of the other vertical reservations. It was mentioned that in the present case as per the advertisement, 4 (four) posts were kept for Unreserved category and accordingly applying the formula of 30% women reservation, 1 (one) post has to be kept for women. It was further mentioned that in the Unreserved quota, the selection is based on merits, i.e. woman who is higher in rank can be appointed to the post irrespective of her caste or

category. The Petitioner was placed at 19 th in the merit list with combined marks of 74 in the written and viva voce, whereas Smti. Sumana Paul who was placed at Serial No.9 and who belongs to the OBC category had scored 77 marks. Therefore, in accordance with the law, it was Smti. Sumana Paul who should have been selected under 30% women's reservation in the Unreserved category. It was also mentioned that the Petitioner being not eligible because of the marks obtained by her cannot claim the benefit of 30% women's reservation.

15. The above stand is relevant taking into account that amongst the Respondent Nos. 6 to 16 includes the Respondent No.9 i.e. Shri Liton Deb thereby admitting that his selection in the merit list dated 18.02.2024 was not in accordance with law.

SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES:

16. Mr. R. J. Das, the learned counsel appearing on behalf of the Petitioner submitted that the Respondent No.8 i.e. Smti. Sumana Paul having already been selected in the OBC category, the Petitioner who is a General category candidate ought to have been selected against the sole post reserved for women in the Unreserved category instead of the Respondent No.9 as per Page No.# 11/29

the mandate of the Act of 2005 and the Rules framed therein under. Referring to Section 4 of the Act of 2005, the learned counsel appearing on behalf of the Petitioner specifically referred to the second proviso to Section 4 of the Act of 2005 and contended that it is the mandate of the said proviso that 30% reservation of the vacancies in respect of women for the remaining Unreserved category of candidates shall be available to the woman of Unreserved category only and therefore, the Petitioner who had applied in Unreserved category ought to have been selected against the sole post reserved for women in the Unreserved category. In that regard, the learned counsel referred to the judgment of the learned Division Bench of this Court dated 02.01.2018 rendered in the case of Smt. Nilima Das Vs. State of Assam & 8 Others (WA No.388/2016) and relied upon Paragraph Nos. 15, 16 and 17

of the said judgment.

Additionally, the learned counsel also submitted that the Petitioner actually belonged to the OBC category however the certificate was neither enclosed nor the Petitioner applied as an OBC candidate.

17. Mr. T. J. Mahanta, the learned Senior counsel representing the Gauhati High Court submitted that a perusal of the advertisement would show that out of 11 (eleven) posts, 4 (four) posts were kept for Unreserved category and 3 (three) posts were kept for OBC/MOBC and remaining 1 (one) post each in the ST(H), ST(P), SC and EWS quota. Under such circumstances, it is the submission of the learned Senior counsel that 1 (one) post amongst the 4 (four) posts in the Unreserved category is reserved for women and 1 (one) post out of the 3 (three) posts of OBC/MOBC was reserved for women in view of the Act of 2005 and the Rules framed therein under. The learned Page No.# 12/29

Senior counsel further submitted that in drawing up the select list dated 18.02.2024, there was a mistake in including the name of the Respondent No.9 inasmuch as 1 (one) out of 4 (four) posts was specifically reserved for women. The learned Senior counsel further submitted that the Respondent No.8 i.e. Smti Sumana Paul was the highest ranked woman candidate irrespective of caste or category and therefore in view of the law laid down by the Supreme Court in various judgments, she ought to have been included in the list amongst the Unreserved category by removing the Respondent No.9 who was in the bottom of such list. The learned Senior counsel further submitted that taking into account that Respondent No.8 was selected in view of the horizontal reservation against an Unreserved category, a female candidate belonging to the OBC category has to be selected in order to maintain the ratio mandated under Section 4 of the Act of 2005 and therefore Smti. Rubi Nath who was at serial No.21 ought to have been brought within the ambit of the select list as 1 (one) post also in the OBC/MOBC category was reserved for women by operation of Section 4 of the Act of 2005. The learned Senior counsel further submitted that under no circumstances, the Petitioner could have been selected as she was at serial No.19 as an Unreserved category candidate. In that regard, the learned Senior counsel referred to the judgments of the Supreme Court in the case of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Others reported in (2007) 8 SCC 785; Saurav Yadav and Others Vs. State of

Uttar Pradesh and Others reported in (2021) 4 SCC 542 as well as Sadhana

Singh Dangi and Others Vs. Pinki Asati and Others reported in (2022) 12 SCC

401.

18. This Court also heard Mr. H. K. Das, who is also the Standing counsel Page No.# 13/29

of the Gauhati High Court on the aspect pertaining to the second proviso to Section 4 of the Act of 2005. The learned Standing counsel submitted that the second proviso to Section 4 of the Act of 2005 wherein the words used are "remaining unreserved category" has to be understood to mean the woman candidate having merit. In that regard, the learned Standing counsel referred to Paragraph No.14 of the judgment of the Supreme Court in the case of Sadhana Singh Dangi (supra).

19. Mr. S. Das, the learned counsel appearing on behalf of the Respondent Nos.6 to 16 supported the submissions made by Mr. T. J. Mahanta, learned Senior counsel for the Gauhati High Court.

ANALYSIS AND DETERMINATION:

20. Before dealing with the merits, this Court finds it relevant to take note of the submission made by the learned counsel appearing on behalf of the Petitioner to the effect that the Petitioner also belongs to the OBC category and as such, if the select list is to be recast, the Petitioner can very well be accommodated. In the opinion of this Court, the said submission cannot be allowed for two reasons. First, the Petitioner never applied in the OBC category but applied as a General category candidate and this aspect is apparent from a perusal of the Petitioner's application enclosed as Annexure- 5 which is at page 54 of the writ petition. Secondly, the select list was published on 18.02.2024 and the Petitioner was issued the OBC certificate on 27.09.2024 much after the select list was published. Additionally, the very edifice of the case of the Petitioner rests upon the fact that the Petitioner being the sole woman Unreserved category candidate having secured the highest marks, ought to have been accommodated against the Unreserved Page No.# 14/29

category of candidates. Under such circumstances, the Petitioner cannot now be permitted to raise this submission by taking such plea in the Affidavit-in- Reply.

21. Now let this Court deal with the merits. The State Legislature enacted the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 already referred to as the Act of 2005, to provide for reservation of vacancies in services and posts for women in the State of Assam. It came into force on 13.05.2005. Section 4 of the Act of 2005 provides the reservation for women in vacancies to be filled up by Direct Recruitment. The said Section being relevant is reproduced herein under:

"4. At the commencement of this Act, 30 percent of the vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment shall be reserved for the women candidates.

Provided that the aforesaid reservation shall be inclusive of the reservation provided statutorily or otherwise to the Scheduled Castes, Scheduled Tribes (Plains), Scheduled Tribes (Hills), Other Backward Classes, More Other Backward Classes and persons with disabilities within the respective reserved category;

Provided further that 30 percent reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of unreserved category only."

22. Section 5 permits the State Government to exempt the reservation in respect to certain specialized services and posts for women in view of the specialized qualifications or experience required to such services and posts. For doing so, the State Government is required to issue a notification in the Page No.# 15/29

Official Gazette exempting such services and posts from the purview of the Act of 2005. In other words, without a notification published in the Official Gazette, all posts for direct recruitment have to confirm to Section 4 of the Act of 2025.

23. Section 6 is a penal provision stipulating that if any Appointing Authority makes an appointment in contravention of the provisions of Section 4, the Appointing Authority shall be liable to be punished with a fine which may extend up to Rs.1000/- and the State Government may also draw up disciplinary proceedings against him/her and punishment may be imposed as per the Assam Services (Discipline and Appeal) Rules, 1964.

24. Section 11 empowers the State Government to make Rules for carrying out the purposes of the Act of 2005. The Rules i.e. Assam Women (Reservation of Vacancies in Services and Posts) Rules, 2005 already referred to as the Rules of 2005 were made by the State Government in exercise of the powers under Section 11(1) of the Act of 2005.

25. Rule 3 of the Rules of 2005 prescribes the manner in which the reservation in terms with Section 4 of the Act of 2005 would be applied. Rule 3 of the Rules of 2005 being relevant is reproduced herein under:

"3. Direct recruitment through Assam Public Service Commission or Selection Committee/Board :- While filling up vacancies by direct recruitment on the basis of the recommendation of the APSC or the Selection Committee/Board as the case may be, the following procedure shall be followed:

(1) While making a request to the APSC or the Selection Committee/Board for recommending candidates for direct Page No.# 16/29

recruitment, the appointing authority shall also furnish the information about reservations in favour of candidates belonging to women.

(2) The APSC or the Selection Committee/Board as the case may be shall furnish its recommendation about such number of Women candidates in order of preference for appointment.

(3) The appointing authority shall make the appointment of Women candidates on 30% basis as has been shown in schedule of this Rules.

(4) In case of non availability of adequate number of candidates belonging Women for the appointment, the post should be filled up by the respective reserved/un-reserved male candidates, to which the post is meant.

(5) The appointing authority shall consider the list in accordance with the provisions of the respective service rules and shall also consult the APSC where such consultation is necessary and shall finally approve the list.

(6) The seniority of the candidate so appointed shall be determined in order of preference shown in the combined list furnished by the APSC or by the Selection Committee Board."

26. The Schedule to the Rules of 2005 also stipulates the breakup of the percentage of 30% reservation in respect of appointment to the services and posts by Direct Recruitment for women candidates. The said Schedule to the Rules of 2005 being relevant is reproduced herein under:

Page No.# 17/29

Schedule (Rule-3)

Breakup of percentage of 30% reservation in respect of appointment to the services and post by direct recruitment for Women candidates.

 Sl No.              Category                 Existing percentage   Reserved for Women


                                                                       (Number of Post)

  (1)                  (2)                         (3)                     (4)

27. For the purpose of understanding the scope and ambit of the Act of 2005 and the Rules framed therein under, this Court finds it appropriate to note the difference between vertical reservations and horizontal reservations.

Vertical reservations which are also known as Social Reservations are made in favour of SC, ST and OBC under Article 16(4). The features of vertical reservation are:

(a) They cannot be filled up by open category or categories of candidates other than those specified and have to be filled by candidates of social category concerned only, i.e. SC, ST and/or OBC.

Page No.# 18/29

(b) Mobility ("migration") from reserved (specified category) to unreserved (open category) slot is possible based on meritorious performance or in other words, a reserved category candidate is permitted to migrate to the seats/posts kept for unreserved categories based on meritorious performance.

(c) In case of migration from reserved to open/unreserved category, the vacancy in the reserved category should be filled by another person from the same reserved category lower in rank.

(d) If the vacancies cannot be filled up from the reserved category due to shortfall of candidates, such vacancies are to be carried forward or dealt with appropriately by the Statutory Rules.

28. On the other hand, horizontal reservations also known as special reservations are made in favour of physically handicapped, women etc. under Article 16(1) or 15(3) of the Constitution. In contradistinction, to the vertical reservation, horizontal reservation by their nature are not inviolate pools or carved in stone. They are premised on their overlaps and are "interlocking" reservations. They are to be calculated concurrently and along with the vertical/social reservation quotas. Post/seats reserved for horizontal reservations cannot be carried forward. The horizontal reservation quotas being 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.

29. This Court at this stage finds it relevant to take note of the judgment Page No.# 19/29

of the Supreme Court in case of Saurav Yadav (supra). His Lordship Uday, U. Lalit, J. (as His Lordship then was) had referred to a method of implementing horizontal reservation for women as laid down by the learned Gujarat High Court in the case of Tamannaben Ashokbhai Desai vs. Shital Amrutlal Nishar reported in (2020) SCC OnLine Guj 2592 . The said method

can be seen from paragraph 23.11 of the judgment of the Supreme Court in the case of Saurav Yadav (supra) which is reproduced herein under:

"23.11. The High Court then laid down : (Tamannaben Ashokbhai Desai case, SCC OnLine Guj paras 69-71)

"69. For the future guidance of the State Government, we would like to explain the proper and correct method of implementing horizontal reservation for women in a more lucid manner.

'PROPER AND CORRECT METHOD OF IMPLEMENTING HORIZONTAL RESERVATION FOR WOMEN.

     No. of posts available for recruitment.                  .....    100

                        Social Reservation Quota (49%)

     Open Competition (OC)                                    .....    51

     Scheduled Castes (SC)                                   .....     12

     Scheduled Tribes (ST)                                   .....     17

     Socially and Educationally Backward Classes (SEBC)      .....    20

Horizontal Reservation for Women (33% in each of the above categories)

OC ..... 17

SC ..... 04

ST ..... 06 Page No.# 20/29

SEBC ..... 07

Step 1: Draw up a list of at least 100 candidates (usually a list of more than 100 candidates is prepared so that there is no shortfall of appointees when some candidates do not join after offer) qualified to be selected in the order of merit. This list will contain the candidates belonging to all the aforesaid categories.

Step 2: From the aforesaid Step 1 List, draw up a list of the first 51 candidates to fill up the OC quota (51) on the basis of merit. This list of 51 candidates may include the candidates belonging to SC, ST and SEBC.

Step 3: Do a check for horizontal reservation in OC quota. In the Step 2 List of OC category, if there are 17 women (category does not matter), women's quota of 33% is fulfilled. Nothing more is to be done. If there is a shortfall of women (say, only 10 women are available in the Step 2 List of OC category), 7 more women have to be added. The way to do this is to, first, delete the last 7 male candidates of the Step 2 List. Thereafter, go down the Step 1 List after Item 51, and pick the first 7 women (category does not matter). As soon as 7 such women from Step 1 List are found, they are to be brought up and added to the Step 2 List to make up for the shortfall of 7 women. Now, the 33% quota for OC women is fulfilled. List of OC category is to be locked. Step 2 List becomes final.

Step 4: Move over to SCs. From the Step 1 List, after Item 51, draw up a list of 12 SC candidates (male or female). These 12 would also include all male SC candidates who got deleted from the Step 2 List to make up for the shortfall of women.

Step 5: Do a check for horizontal reservation in the Step 4 List of SCs. If there are 4 SC women, the quota of 33% is complete. Nothing more is to be done. If there is a shortfall of SC women (say, only 2 women are available), 2 more Page No.# 21/29

women have to be added. The way to do this is to, first, delete the last 2 male SC candidates of the Step 4 List and then to go down the Step 1 List after Item 51, and pick the first 2 SC women. As soon as 2 such SC women in Step 1 List are found, they are to be brought up and added to the Step 4 List of SCs to make up for the shortfall of SC women. Now, the 33% quota for SC women is fulfilled. List of SCs is to be locked. Step 4 List becomes final. If 2 SC women cannot be found till the last number in the Step 1 List, these 2 vacancies are to be filled up by SC men. If in case, SC men are also wanting, the social reservation quota of SC is to be carried forward to the next recruitment unless there is a rule which permits conversion of SC quota to OC.

Step 6: Repeat Steps 4 and 5 for preparing list of STs.

Step 7:Repeat Steps 4 and 5 for preparing list of SEBCs.'

70. The State Government as well as the GPSC shall, for all times to come, bear in mind that the effect of horizontal reservation, being provided under each category, is that it is only women, who belong to the Other Backward Classes, who can compete for the posts reserved for Other Backward Classes (Women) and not women who belong to the Scheduled Castes, the Scheduled Tribes and the unreserved category. Likewise, it is only women belonging to the Scheduled Castes and the Scheduled Tribes who can compete for the posts horizontally reserved in favour of Scheduled Castes (Women) and Scheduled Tribes (Women). A woman, not belonging to the reserved category (OBC, SC and ST), is not entitled to compete for posts reserved in favour of Other Backward Classes (Women), Scheduled Castes (Women) and Scheduled Tribes (Women).

71. The converse, however, is not true. All women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the General Category. There is no reservation for posts in the General Category, and horizontal reservation in favour Page No.# 22/29

of women in the General Category is available to be filled up from amongst all women irrespective of their caste status. The posts, reserved in favour of General Category (Women), are available for all women from the State of Gujarat, and that would include women belonging to the reserved categories such as OBCs, SCs and STs, and women who do not. Holding otherwise, would result in surreptitious introduction of reservation in favour of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation has been frowned upon by the Supreme Court in State of Madras v. Champakam Dorairajan."

30. It is further seen that this view have also been adopted by the learned High Courts of Rajasthan, Bombay and Uttarakhand and the Supreme Court at Paragraph 40 of the judgment in Saurav Yadav (supra) observed that the view so taken by the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat are correct and rational. The concurring opinion of His Lordship S. Ravindra Bhat J. (as His Lordships then was) in the case of Saurav Yadav (supra) observed at paragraph No.61 of the said judgment that open

category is not a quota but rather available to all women and men alike. This aspect throws light on the second proviso to Section 4 of the Act of 2005 which this Court would discuss a little later in the present judgment.

31. This Court also finds it relevant to take note of another judgment of the Supreme Court in the case of Rajesh Kumar Daria (supra) wherein the Supreme Court lucidly explains with illustration as to how the horizontal reservation for women is required to be made. Paragraph Nos. 8 and 9 of the said judgment being relevant are reproduced herein under:

"8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation.

Page No.# 23/29

For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be: "For SC: 30 posts, of which 9 posts are for women." We find that many a time this is wrongly described thus: "For SC: 21 posts for men and 9 posts for women, in all 30 posts."

Obviously, there is, and there can be, no reservation category of "male" or "men".

9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations 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.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, Page No.# 24/29

then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)"

32. It is further relevant to take note of that the Supreme Court in the case of Saurav Yadav (supra) was not dealing with Statutory Rules providing reservation for woman. However, the subsequent judgment of the Supreme Court in the case of Sadhana Singh Dangi (supra), wherein statutory Rules Page No.# 25/29

were involved, the Supreme Court observed that in view of the general propositions laid down in Saurav Yadav (supra), they are sufficient enough to take care of the controversy which has arisen. This Court finds it relevant to quote some of the paragraphs of the said judgment in the case of Sadhana Singh Dangi (supra) which would throw light into the present dispute.

Paragraph Nos.14, 22 and 23 being relevant are reproduced herein under:

"14. The decision of this Court in Saurav Yadav had considered all the cases on the point starting from Indra Sawhney up to Mamta Bisht as well as other decisions. It was finally concluded that the candidates belonging to the category of OBC (Female) or any other reserved category (Female) were entitled as a matter of right to have their candidature considered against the category meant for Unreserved Female Candidates if their merit position demanded so. It was further held that the category of Unreserved (Female) is not specially allocated or reserved for those candidates who did not belong to any of the categories of SC, ST or OBCs and that by very nature "unreserved category" must mean and include every person who on the strength of merit could be entitled to be considered in that category.

22. It is true that the leading judgment in Saurav Yadav considered the matter from a general plane but the concurring judgment authored by S. Ravindra Bhat, J. did additionally consider the issue from the perspective of absence of any statutory rules in the field. It is also true that in the instant case, there are rules occupying the field and the case would be a fortiori, but we need not enter into that arena as, in our view, the general propositions laid down in Saurav Yadav by themselves are sufficient to take care of the controversy which has arisen in the instant matters.

23. The law laid down in Saurav Yadav is very clear that even while applying horizontal reservation, the merit must be given precedence and that if the candidates who belong to SCs, STs and OBCs have secured higher marks Page No.# 26/29

or are more meritorious, they must be considered against the seats meant for unreserved candidates."

33. From the law laid down by the Supreme Court in the above noted judgments, it is therefore clear that a candidate coming within the ambit of social reservation as a matter of right have to be considered against the category meant for Unreserved candidates, if his/her merit position demanded so. A fortiori therefore is that a female candidate belonging to the categories earmarked for social reservation would also be entitled as a matter of right to have her candidature considered against the category meant for unreserved female candidates. At paragraph 14 of the judgment in the case of Sadhana Singh Dangi (supra), the Supreme Court categorically observed that the category of Unreserved female is not specifically allocated or reserved for those candidates who did not belong to any of the categories of SC, ST or OBC and that by very nature "unreserved category must mean and include every person who on the strength of merit could be entitled to be considered in that category".

34. In the backdrop of the above, let this Court now deal with Section 4 of the Act of 2005 which have already been reproduced hereinabove. The main Section stipulates that 30% of the vacancies in respect of all appointments to the services and posts in the establishment at the commencement of the Act of 2005 which are to be filled up by way of direct recruitment shall be reserved for women candidates. The first proviso in the opinion of this Court provides that the 30% reservation so provided by the Section 4 of the Act of 2005 shall be inclusive of the reservation provided, statutorily or otherwise to Schedule Castes, Scheduled Tribe (Plains), Scheduled Tribe (Hills), Other Page No.# 27/29

Backward Classes, More Other Backward Classes, and persons with disabilities with the respective reserved categories. The second proviso to Section 4 stipulates that 30% reservation of vacancies in respect to women for the remaining Unreserved category of candidates shall be available to the women of Unreserved category only.

35. In Sadhana Singh Dangi (supra), the Supreme Court as already stated above, categorically observed that the unreserved category must mean and include every person who on the strength of merit would be entitled to be considered in that category. Similarly, in the case of Saurav Yadav (supra), the Supreme Court observed that unreserved category/open category is not a quota but rather available to all women and men alike. Therefore, in the opinion of this Court, the second proviso to Section 4 of the Act of 2005 postulates that the woman quota reserved for unreserved category would include all in terms of merit. The said quota reserved for unreserved category therefore shall not be confined to a woman from unreserved woman category but shall include all including from socially reserved category candidates, if meritorious.

36. In the backdrop of the above analysis, now let this Court take note of the facts. In terms of the advertisement dated 10.08.2022, it is apparent that out of the 11 (eleven) posts, 4 (four) posts were earmarked for the unreserved category and 3 (three) posts were earmarked for OBC/MOBC. The remaining reserved categories i.e. ST(H), ST(P), SC as well as EWS were earmarked with 1 (one) post each. Under such circumstances, in terms with Section 4 of the Act of 2005, one post amongst the 4 (four) posts earmarked for unreserved category and one post amongst the 3 (three) posts Page No.# 28/29

earmarked for OBC/MOBC were required to be reserved for woman.

37. This Court had also taken note of the evaluation sheet wherein it is seen that Smti. Sumana Paul who belongs to the OBC category is the most meritorious woman candidate amongst all other woman candidates. By virtue of the fact that 1 (one) post in the unreserved category had to be reserved for women, the Respondent No.9 Shri Liton Deb could not have been selected and in his place, Smti. Sumana Paul i.e. the Respondent No.8 ought to have been selected against the post earmarked for unreserved category.

38. Proceeding further, applying the settled principles of law; with Smti Sumana Paul, i.e. the Respondent No.8 being selected against the post reserved for women in the unreserved category, a post in the OBC category becomes vacant. Taking into account that two other male candidates have been selected against the OBC category, Smti. Rubi Nath though at Serial No.21 of the merit list but she is the most meritorious OBC woman candidate amongst the OBC woman candidates after Smti Sumana Paul and therefore she ought to have been selected upon Smti. Sumana Paul, the Respondent No.8 migrated to the unreserved category.

39. The above analysis would therefore show that the Petitioner herein had no claim or right to be selected and as such, the relief(s) which have been sought for by the Petitioner cannot be granted.

40. The Petitioner had also challenged the advertisement. However, nothing was submitted why the Petitioner challenged the advertisement after having participated in terms with the advertisement. The relief sought for Page No.# 29/29

setting aside the advertisement is therefore rejected.

41. Accordingly, the instant with petition stands disposed of with the following observations and directions.

(i) The writ petition lacks merit and accordingly stands dismissed.

(ii) In view of the above analysis, the Respondent Authorities more particularly the Respondent No.4 would be required to recast the Select List dated 18.02.2024 thereby migrating the Smti Sumana Paul, the Respondent No.8 against the post reserved for women in the Unreserved category and deleting the name of Shri Liton Deb, the Respondent No.9 from the Select List.

(iii) The Respondent No.4 would also be required to include Smti Rubi Nath against the post reserved for women in the OBC/MOBC category more particularly in view of the migration of Smti. Sumana Paul, the Respondent No.8 to the Unreserved category.

(iv) This Court directs the Official Respondent Authorities to do the needful in that regard.

(v)     There shall be no order as to costs.




                                                                          JUDGE



Comparing Assistant