[Cites 14, Cited by 0]
Madhya Pradesh High Court
The State Of Madhya Pradesh vs Aditya Tiwari on 11 February, 2026
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2026:MPHC-JBP:12234
1 WA-1156-2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE PRADEEP MITTAL
ON THE 11th OF FEBRUARY, 2026
WRIT APPEAL No. 1156 of 2013
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
ADITYA TIWARI AND OTHERS
Appearance:
Smt. Janhavi Pandit Additional Advocate General for appellants/State.
Shri Abhay Tiwari, Advocate for respondent No.1.
Shri Pravesh Naveriya, Advocate for respondents Nos.
4,6,7,8,10,11,12 and 13.
WITH
WRIT APPEAL No. 600 of 2014
ANURAG JHARIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
None appears for the appellant.
Smt. Janhavi Pandit, Additional Advocate General for respondents No. 1 and
2/State.
Shri Abhay Tiwari, Advocate for respondent No.3.
Shri Pravesh Naveriya, Advocate for respondents No. 7,9,10,12,13,14,15 and 16.
ORDER
Per: Justice Pradeep Mittal
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2 WA-1156-2013
The present writ appeals arise out of the order dated 03.07.2013 passed
by the learned writ court in W.P. No. 610 of 2012, whereby the writ petition
filed by writ petitioner Aditya Tiwari (respondent No. 1 herein) was allowed
and direction was issued to appoint Aditya Tiwari against the post of ex-
serviceman general category stating that against the general quota, no reserve
quota candidate can be adjusted and appointment of Anurag Jahariya was
cancelled stating that he was wrongly adjusted from reserve quota to
general quota of ex-servicemen. Since both these writ appeals involve a
common issue, they are heard and decided together by this common order.
References to the annexures and documents are taken from W.A. No. 1156
of 2013 for the sake of convenience.
2. The facts leading to the filing of the present cases are that the
examination for post of Sub Inspector was conducted by respondent no 1 in
the writ petition. There were 30 posts reserved for filling up all the post of
Sub Inspector (Radio) in which as per the reservation provided 20% for
Scheduled Tribes, 16% for Scheduled Caste and 14% for O.B.C. Out of total
30 posts 15 belong to the unreserved category. The respondent No.1 herein
Aditya Tiwari (writ petitioner in the writ petition) belongs to unreserved
category. That it is not disputed that the total marks obtained by the writ
petitioner is 226 but in written Exams he got less mark than Anurag Jahariya
respondent No.14 herein.
3. That in the first scan, 18 candidates were considered for appointment in
which 8 candidates were selected against the 9 unreserved quota as 3
candidates unreserved category and 5 candidates belonging to the reserved
category on the basis of merit secure unreserved category, and one
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unreserved candidate for police persons. The last candidate in the open
category who was granted appointment in the unreserved quota was Pramod
Kumar Jatve who belongs to the reserved category but was treated to be
unreserved due to his merit position as he has obtained 231 marks whereas
against the writ petitioner who could only secure 226 marks. That all the 9
persons who were selected under the unreserved quota were admittedly
having higher merit than the writ petitioner.
4. In the second scan 9 candidates were considered after posts reserved
for 5 female candidates were reverted to male candidates due to non-
availability of eligible female candidates. That in the second scan 4 persons
were granted the benefit of appointment in the unreserved quota Namely :
(1) Prashant Singh Parihar, (2) Gajendra Singh Raghuwanshi, (3) Vikash
Upadhyay, (4) Sanjeev Pandey. Shri Sanjeev Pandey was having equal
marks as granted to the respondent but was granted the benefit of
appointment in the light of clause 1.11 of the recruitment rules wherein 2
candidates are having equal marks than the candidate having higher marks in
the written examination will be considered for appointment. Shri Sanjeev
Pandey had obtained 189 marks in the written examination as against the
petitioner who obtained 182 marks thus Shri Sanjeev Pandey in the
unreserved category against female quota was granted the benefit of
appointment. Thus, in the first scan out of the total 15 posts reserved for
general category 9 posts were filled up in which none of the candidates was
lower in merit than the writ petitioner.
5. That 3 posts were reserved for ex-serviceman candidates could not be
filled up therefore same were reverted to 1 post to unreserved, 2 posts to
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Scheduled Tribes and 1 post to Scheduled Caste. That against the unreserved
category Shri Ajay Singh was granted the benefit of appointment though he
was having equal marks of 226 as the respondent but had obtained 186 marks
in his written examination whereas the petitioner only could secure 182
marks. Thus by virtue of clause 1.11 of the rules having obtained more
marks in the written examination Shri Ajay Singh was selected for
appointment.
6. It is submitted that by the Additional Advocate General for the
appellants/State that the learned Single Judge failed to consider the settled
legal position regarding the scope of judicial review in matters of
recruitment. The Hon'ble Supreme Court, in a catena of decisions, has
consistently held that the Court does not sit as a Selection Committee or as
an expert body to reassess the merits of candidates. Judicial review is limited
to examining whether the selection process is contrary to statutory rules or
suffers from illegality, arbitrariness, or mala fides. In the present case, the
writ petitioner failed to make out any ground warranting interference with
the valid and lawful recruitment process.
7. It is submitted that the learned Single Judge committed a grave error
in holding that horizontal and vertical reservations were not applied in
accordance with the prescribed rules, without properly appreciating the
Reservation Rules and the law laid down by the Hon'ble Supreme Court.
8. It is submitted that under the applicable Reservation Rules, 05
candidates were to be selected from the SC category, 06 from the ST
category, 04 from the OBC category, and 15 from the Unreserved category.
The selection process for the posts of Subedar/Sub Inspector/Platoon
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Commander-2011 was conducted strictly in accordance with merit, the
Recruitment Rules, and the Reservation Rules of the State Government. The
written examination results and the final select list were prepared in
conformity with the principles laid down by the Hon'ble Supreme Court.
9. It is submitted that the learned Single Judge erred in cancelling the
selection of Respondent No. 14 herein, Anurag Jhariya (SC category), and
directing the selection of the writ petitioner, Adiya Tiwari (Unreserved
category). This direction is contrary to the Reservation Rules.
10. It is submitted that Respondent No. 14 herein, Anurag Jhariya, is an SC
candidate who falls within the five vacancies earmarked for the SC category
on merit. His selection is fully consistent with the Reservation Rules and the
principles laid down by the Hon'ble Supreme Court in Anil Kumar Gupta v.
State of U.P. (1995 SCC 5 173), Rajesh Kumar Daria v. RPSC (2007) 8 SCC
785, and Public Service Commission v. Mamta Bisht 2010 (12) SCC 204 .
His selection could not have been cancelled on erroneous assumptions.
11. It is submitted that if the selection of Anurag Jhariya (SC category) is
cancelled and the writ petitioner Aditya Tiwari (Unreserved category) is
selected in his place, it would disturb the prescribed reservation quota.
Instead of 05 SC candidates, only 04 would be selected, and the number of
Unreserved candidates would increase from 15 to 16. This would reduce the
SC quota below the prescribed 16% and increase the Unreserved quota
beyond 50%, thereby violating the Reservation Rules. The prescribed
percentage of reservation must be maintained in all circumstances.
12. It is submitted that cancelling the selection of an SC candidate and
replacing him with an Unreserved candidate violates the fundamental
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principle that reserved posts must be filled by candidates belonging to the
respective reserved category. If suitable candidates are unavailable, such
posts are to remain vacant or be dealt with as per the rules, but they cannot
be filled by Unreserved category candidates in violation of reservation
policy.
13. It is submitted that the learned Single Judge also erred in holding that
Respondent No. 14 herein was wrongly adjusted against a vacancy of
Unreserved (Female) category. In fact, Respondent No. 14- Anurag Jhariya
was selected against a post reserved for Ex-Servicemen in the SC category.
As no eligible SC Ex-Serviceman candidate was available in the merit list,
the vacancy reverted to the open SC category in accordance with the rules.
Therefore, his selection was strictly as per the Reservation Rules and did not
violate any policy.
14. It is submitted that the learned Single Judge proceeded on the incorrect
assumption that Respondent No. 14- Anurag Jharia was adjusted against a
reverted Unreserved (Female) vacancy solely because he belongs to the
Scheduled Caste category. This finding overlooks the factual position that he
was selected against a reverted SC Ex-Servicemen vacancy, and not against
an Unreserved Female vacancy. The impugned order, therefore, proceeds on
a misinterpretation of the Reservation Rules and an incorrect appreciation of
facts, and is liable to be set aside.
15. The controversy pointed out by the learned Single Judge is that Pramod
Kumar Jatav, a candidate belonging to the Scheduled Caste (S.C.) category,
was adjusted against the female quota of the general category, which,
according to the learned Single Judge, was not permissible under the rules. It
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was held that he could have been adjusted only against a vacancy reserved
for the Scheduled Caste female quota. Learned counsel for the appellants has
submitted that the unreserved quota is open to all candidates and is required
to be filled on the basis of merit; therefore, the finding recorded by the
learned Single Judge is not correct.
16. The respondents have supported the findings of the learned Single
Judge and submitted that the female quota should be filled only by
candidates belonging to the respective category, and not by candidates from
the Scheduled Caste, Scheduled Tribe, or OBC categories. According to
them, the female quota in the General (Unreserved) category must be filled
exclusively by female candidates belonging to the General category. The
respondents further contended that such vacancies, particularly those
reserved for female candidates in the General category, ought to have been
filled by male candidates of the same category and not by candidates
belonging to reserved categories. It was alleged that certain Scheduled Caste
candidates were improperly adjusted against General category vacancies,
contrary to the applicable rules and the law laid down by the Supreme Court
i n Rajesh Kumar Daria v. Rajasthan Public Service Commission (2007) 8
SCC 785.
Heard the learned counsel for the parties.
17. In W.P. No. 7179 of 2016 (Nirmala Chouhan Vs. High Court of M.P.
and others order dated 04.02.2026), this court has already held that the
unreserved quota is open to all. That controversy has been resolved and no
longer res integra. In the case of Airport Authority of India and Others Vs.
Sham Krishna B and others 2026Live Law (SC) 63, it was held that the open
NEUTRAL CITATION NO. 2026:MPHC-JBP:12234
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category is not a "quota", but rather available to all women and men alike,
open category is open to all, and the only condition for a candidate to be
shown in it is merit, regardless of whether reservation benefit of either type
is available to her or him. The same have a profound meaning and needs to
be translated into action without being unnecessarily bothered by a term like
'migration' candidate from a reserved category (including women) who is
more meritorious than the last candidate selected in the unreserved (general)
category must be allotted a seat from the unreserved category. The Supreme
Court has ruled that the "open category" is a merit-based pool accessible to
all, not a quota for general candidates. Her candidature has not been
approved by the High Court at administrative side on the ground of previous
law laid down by the High Court as well as Hon'ble Supreme Court; now the
Supreme Court laid down the contrary view.
18. The Division Bench of this Court in cases of State of M.P. and
another vs. Uday Sisode and others [2020(1) M.P.L.J. 359] and in the cases
of Sachin Pathak Vs. State of Madhya Pradesh and others W.P.
No.15147/2019 and Chhaya Dubey Vs. State of Madhya Pradesh and others,
W.P. No.20289/2019 , Single Bench of this Court held that when a
reservation is horizontal, then the candidate selected on the basis of
reservation in any category has to be fixed in the said category and cannot be
allowed to migrate to other category. In the latest judgement of the Hon'ble
Supreme Court this judgement is not a good law.
19. In Rajesh Kumar Daria vs. Rajasthan Public Service Commission and
others reported as 2007(8) SCC 785, it was held that a provision for women
made under Article 15(3), in respect of employment, is a special reservation
NEUTRAL CITATION NO. 2026:MPHC-JBP:12234
9 WA-1156-2013
as contrasted from the social reservation under Article 16(4). The method of
implementing special reservation, which is a horizontal reservation, cutting
across vertical reservations, was explained by this Court in Anil Kumar
Gupta v. State of U.P. (1995) 5 SCC 173. 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. As a result, we find that among 59 general
category candidates in all 22 women have been selected consisting of eleven
woman candidates selected on their own merit (candidates at Sl. Nos. 2, 3, 4,
5, 9, 19, 21, 25, 31, 35 and 41 of the selection list) and another eleven
(candidates at Sl Nos. 54, 61, 62, 63, 66, 74, 75, 77, 78, 79 and 80 of the
selection list) included under reservation quota for "general category
women". This is clearly impermissible. The process of selections made by
RPSC amounts to treating the 20% reservation for women as a vertical
reservation, instead of being a horizontal reservation within the vertical
reservation." The above principal is not good law in the light of latest
judgement of Hon'ble Supreme Court in the case of Union of India Vs. Sajib
Roy reported as 2025 LiveLaw (SC) 881 and Sham Krishna B (supra).
20. In the cases of Indra Swahney vs. Union of India, 1992 Supp (3)
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SCC 217, R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745, Union of
India vs. Virpal Singh Chauhan (1995) 6 SCC 684 and Ritesh R. Sah v. Dr.
Y.L. Yamul (1996) 3 SCC 253.) Anil Kumar Gupta v. State of U.P. (1995) 5
SCC 173, it was held that the aforesaid principle applicable to vertical
(social) reservations will not apply to horizontal (special) reservations. When
a reservation is horizontal, then the candidate selected on the basis of
reservation in any category has to be fixed in said category and cannot be
allowed to migrate to other category. The concept of migrating from one
category to another on the basis of merit may hold good in vertical
reservation but in horizontal reservation the same is not applicable. The
above principle is no longer good law in the light of latest judgement of
Hon'ble Supreme Court in the cases of Sajib Roy and Sham Krishna B .
(supra).
21. The learned Single Judge recorded his findings on the basis of the
judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Daria
v. Rajasthan Public Service Commission & Others [(2007) 8 SCC 785 ].
However, in light of the latest judgments of the Hon'ble Supreme Court in
Sajib Roy and Sham Krishna B (supra), that view can no longer be
considered good law. Therefore, the finding recorded by the learned Single
Judge cannot be sustained in law. It is not correct law to hold that an
unreserved seat earmarked for female candidates should be filled only by
unreserved category candidates. In view of the law laid down by the Hon'ble
Supreme Court, the female quota in the unreserved category is available to
all eligible female candidates as well as male candidate on non-availability
of female candidate on the basis of merit.
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22. It is noteworthy to mention there that the following directions were
given by the writ court while allowing the writ petition.
"The appointment and selection of respondent No.16 Anurag Jharia as Sub
Inspector (Radio) against the Post of ex-service man candidate cannot be
upheld. The same is required to be cancelled. Instead of said Anurag Jharia,
Jitendra Shakya said to be selected on the post of Sub Inspector (Radio)
against the vacancy of female candidate in that category would be treated to
be selected and appointed against the vacancy of ex-serviceman in the same
category. Pramod Kumar Jatav said to be selected as General category
candidate on account of merits would be treated to be selected and appointed
against the vacancy of Scheduled Caste female in place of said Jitendra
Shakya. In his place, Shri Sanjeev Pandey said to be selected in General
category against the vacancy of female candidate in General category would
be treated to be selected and in place of Shri Sanjeev Pandey, Ajay Singh
said to be selected and appointed as Sub-Inspector (Radio) in General
category against the post of ex-serviceman would be treated to be selected
and appointed against the post reserved for female candidates in General
category. In the vacancy so available in General category on account of non-
availability of the ex-serviceman, the appointment be given to the petitioner
Aditya Tiwari."
23. The aforesaid directions cannot be sustained in law. The learned Single
Judge wrongly cancelled the candidature of Respondent No. 14 herein,
Anurag Jaharia, and the above directions were issued on account of such
cancellation. Since we now hold that the candidature of Anurag Jaharia is in
accordance with law, all the directions issued by the learned Single Judge
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cannot be sustained and are liable to be set aside.
24. Accordingly, both the writ appeals are allowed, and the order dated
03.07.2013 of the Writ Court passed in W.P. No. 610 of 2012 is set aside.
The candidature of Anurag Jaharia respondent No.14 herein against the
general quota of Ex- serviceman is affirmed due to non-availability of EX-
serviceman candidate.
(VIVEK RUSIA) (PRADEEP MITTAL)
JUDGE JUDGE
MSP
