Patna High Court
Snehi Kumari vs The State Of Bihar on 7 February, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5493 of 2022
======================================================
Snehi Kumari D/o- Dhirendra Kumar Sinha, resident of Birpur, Hospital
Road, Near Shiv Mandir, Ward No.1, Basantpur, Supaul Bazar, Pin Code-
854340.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, General Administration
Department Govt. of Bihar, Patna.
2. The Additional Secretary, General Administration Department Govt. of
Bihar, Patna.
3. The Chairman, Bihar Public Service Commission (B.P.S.C), Bailey Road
Patna- 2.
4. The Secretary, Bihar Public Service Commission (B.P.S.C), Bailey Road
Patna- 2.
5. The Joint Secretary, Bihar Public Service Commission (B.P.S.C), Bailey
Road Patna- 2.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 15520 of 2021
======================================================
Sushma Kumari Wife of Sri Pritam Kumar, Resident of Mohalla - Mayur
Vihar Colony (Shyam Nagar), P.O. - Khajpur, P.S. - Rajiv Nagar, District -
Patna.
... ... Petitioner/s
Versus
1. The Bihar Public Service Commission, Patna through its Secretary,
2. The Chairman, Bihar Public Service Commission, Patna.
3. The Secretary Bihar Public Service Commission, Patna.
4. The Joint Secretary - Cum - Examination Controller Bihar Public Service
Commission, Patna.
5. The State of Bihar through Principal Secretary, General Administrative
Department, Government of Bihar, Patna.
6. The Additional Secretary, General Administrative Department, Government
of Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 13884 of 2022
======================================================
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
2/67
Bhawna Mishra Daughte rof Sri Pradeep Kumar Mishra, Resident of Village-
Dhakauli, P.O.-Somaiya Nagar, P.S.-Kotwali Nagar, District-Barabanki (Uttar
Pradesh).
... ... Petitioner/s
Versus
1. The Bihar Public Service Commission, Patna through its Secretary.
2. The Chairman, Bihar Public Service Commission, Patna
3. The Secretary, Bihar Public Servie Commission, Patna
4. The Joint Secretary-cum-Examination Controller, Bihar Public Servie
Commission, Patna
5. The State of Bihar through Principal Secretary, General Administrative
Department, Government of Bihar, Patna.
6. The Additional Secretary, General Administrative Department, Government
of Bihar, Patna.
7. The Additional Chief Secretary, Road Construction Department,
Government of Bihar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 13970 of 2022
======================================================
1. Khushboo Kumari daughter of Sri Gopal Jha, resident of Village- Sangi,
P.O.- Sangi, P.S.- Phulparas, District- Madhubani.
2. Ritu Shukla, daughter of Sri Girish Kumar Shukla, resident of Mohalla- Old
Postal Colony No. 1, Mahmood Chowk, Chapra, P.S.- Chapra Sadar,
District- Saran.
3. Himanshi Nag, daughter of Sri Shiv Gopal Nag, resident of 545 KA/AR-25,
Arjun Vihar, Para Road, Rajajipuram, P.S.- Para Chowki, District- Lucknow
(Uttar Pradesh).
... ... Petitioner/s
Versus
1. The Bihar Public Service Commission, Patna through its Secretary.
2. The Chairman, Bihar Public Service Commission, Patna.
3. The Secretary, Bihar Public Service Commission, Patna.
4. The Joint Secretary-cum- Examination Controller, Bihar Public Service
Commission, Patna.
5. The State of Bihar through Principal Secretary, General Administrative
Department, Government of Bihar, Patna.
6. The Additional Secretary, General Administrative Department, Government
of Bihar, Patna.
7. The Additional Chief Secretary, Road Construction Department,
Government of Bihar, Patna.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
3/67
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 14202 of 2022
======================================================
Nancy Shubham Daughter of Sunil Dhari Prasad Singh Resident of House
No.- 30, Sardar Patel Path, North S.K. Puri, Post Office- Patliputra, Police
Station- S.K. Puri, District- Patna, Pin Code- 800013.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Principal Secretary, General Administration
Department, Government of Bihar, Patna.
2. The Principal Secretary General Administration Department, Government of
Bihar, Patna.
3. The Additional Secretary General Administration Department, Government
of Bihar, Patna.
4. The Chairman Bihar Public Service Commission, 15, Jawaharlal Nehru
Marg, (Beli Road), Patna- 800001.
5. The Joint Secretary-cum- Examination Controller Bihar Public Service
Commission, 15, Jawaharlal Nehru Marg, (Beli Road), Patna- 800001.
6. The Secretary Bihar Public Service Commission, 15, Jawaharlal Nehru
Marg, (Beli Road), Patna- 800001.
7. Sushma Kumari Wife of Sri Pritam Kumar Resident of Mohalla- Mayur
Vihar Colony (Shyam Nagar), P.O.- Khajpur, P.S.- Rajiv Nagar, District-
Patna.
8. Saurav Kumar Rai, (UR) Roll No. 228265 and Merit Sl No. 2905.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdtion Case No.5493 of 2022)
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Ashok Kumar Choudhary, Sr. Advocate
Mr. Bhola Kumar, Advocate
Mr. Akshansh Ankit, Advocate
For the State : Mr. Manish Kumar (G.P.-4)
For the B.P.S.C. : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
(In Civil Writ Jurisdiction Case No. 15520 of 2021)
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Ashok Kumar Choudhary, Sr. Advocate
Mr. Bhola Kumar, Advocate
Mr. Akshansh Ankit, Advocate
For the State : Mr. Sheo Shankar Prasad (S.C.-8)
For the B.P.S.C. : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
4/67
(In Civil Writ Jurisdiction Case No. 13884 of 2022)
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Ashok Kumar Choudhary, Sr. Advocate
Mr. Bhola Kumar, Advocate
Mr. Akshansh Ankit, Advocate
For the State : Mr. Sheo Shankar Prasad (S.C.-8)
For the B.P.S.C. : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
(In Civil Writ Jurisdiction Case No. 13970 of 2022)
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Bhola Kumar, Advocate
Mr. Akshansh Ankit, Advocate
For the State : Mr. Md. Nadim Seraj (G.P.-5)
For the B.P.S.C. : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
(In Civil Writ Jurisdiction Case No. 14202 of 2022)
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Swami Parth Sarthy, Advocate
Mr. Bhola Kumar, Advocate
Mr. Akshansh Ankit, Advocate
For the State : Mr. P.K. Shahi, (A.G.)
Md. Nadim Seraj (G.P.-5)
For the B.P.S.C. : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 07.02.2025
1. These batch of writ petitions having similar set of
questions of law and fact have been heard together and this
court proceeds to deliver the following judgment to dispose of
aforementioned writ petitions by a composite judgment
2. In all the aforementioned writ petitions the
petitioners appeared for selection and appointment the post of
assistant engineer (civil) on the basis of an advertisement
bearing number 2 of 2017 issued by Bihar Public Service
Commission on 3rd march 2017, which was subsequently
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
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amended by another notification having same advertisement
number dated 6th February 2019, whereby and where under the
number of posts were increased by the BPSC in consultation
with the concerned department of the state government.
3. There are certain factual differences in respect of
in the cases of the petitioner which I propose to discuss at the
relevant point of time.
4. In all the writ petitions the petitioners have
invoked extra ordinary constitutional writ jurisdiction of this
court under article 226 of the constitution for the following
reliefs:
1. For a direction upon the Respondent Bihar Public
Service Commission to consider the candidature of
the Petitioner for the post of Assistant Engineer
(Civil) pursuant to Advt. No, 02/2017 and
recommend the name of the Petitioner for the said
post as Petitioner has been illegally omitted from
the final result by denying the benefits of 35%
horizontal reservation for female candidates under
Letter No. 2342 dated 15.02.2016 issued by the
General Administrative Department, Bihar.
2. To pass any other order/orders in shape of a
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
6/67
consequential relief to which the Petitioner may be
found to be legally entitled to in the facts and
circumstances of the instant case at hand.
5. It is on record that in the above mention writ
petition, the contesting parties have submitted series of
affidavits which would be profitable to discuss in brief
chronologically.
6. Petitioner, namely Sushma Kumari filed the writ
application under Article 226 on 31.08.2021. The fact in brief
is that the Petitioner applied for the post of Assistant Engineer
(Civil), under Unreserved Category, pursuant to Advertisement
No. 02/2017 issued by the Bihar Public Service Commission.
It is stated that a total number of 1284 vacancies under
different departments of the State of Bihar was advertised vide
Advertisement No. 02/2017. Petitioner was allotted Roll No.
213988 in the selection process and she cleared the preliminary
examination conducted on 15.09.2018. Thereafter, a
Notification dated 06.02.2019 was published by the
Commission inviting applications from candidates who had
cleared preliminary examination. Further, terms and conditions
of the Advertisement No. 02/2017 was reiterated in the said
Notification. There is a specific stipulation in the aforesaid
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
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Advertisement that 35% horizontal reservation for women
would be maintained in light of Letter No. 2342 dated
15.02.2016
issued by the General Administrative Department,
Bihar. It is further clarified in the said Letter that in case of any
vacancy reserved for female being unfilled can be filled in by
male candidates. Petitioner appeared in mains examination
from 27.03.2019 to 31.03.2019 and was subsequently declared
successful in the mains examination vide result dated
24.01.2021. Petitioner was called for interview on 18.03.2021
and performed at par with other candidate. Name of the
Petitioner was omitted from the Final Result dated 14.07.2021
and only 1240 candidates were declared successful against
1284 vacancies. It is stated that a bare perusal of the final
result would reveal that under Unreserved (01) category only
702 candidates were declared successful whereas total number
of vacancies under Unreserved Category was 733.
7. Under Unreserved Category, benefit of horizontal
reservation has been given to Physically Handicapped and
under Freedom Fighter quota. However, such benefit of
horizontal reservation has not been given to female candidates,
in as much as, only 187 female candidates (out of total 702)
were selected under Unreserved Category which comes to
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
about only 26.64% of the total selected candidates. It is stated
that such an action by the Respondent Commission is in utter
violation of Letter No. 2342 dated 15.02.2016 and cannot be
sustained in the eyes of law. Learned advocate for Petitioner
contends that when eligible female candidates like the
Petitioner was available then Respondent Commission could
not have proceeded to fill the vacancies with male candidates
by breaching the horizontal reservation of 35% available to
female candidates. It is pertinent to mention here that
Petitioner secured a total of 390 marks [340 in written
examination and 50 in interview] in the selection process.
However, the Petitioner was declared unsuccessful by fixing
the cut-off marks as 394 [Unreserved (Female)]. It is stated
that the Respondent Commission has erred in fixing the cut-off
for Unreserved (Female) as 394 when 35% female candidates
were not already in select list as stated hereinabove.
8. It is stated by the Petitioner that another error
which has crept in the Final Result dated 14.07.2021 is that the
Respondent Commission has erroneously extended the benefit
of horizontal reservation under Letter No. 2342 dated
15.02.2016 to even such candidates who are domiciled outside
the State of Bihar. It is trite law that when a vacancy/post is
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
under the control of Central Government then reservation
status remains same throughout the Country. However, it has
been settled by the Hon'ble Apex Court that when a
vacancy/post is under the control of respective State
Government, like Advertisement No. 02/2017 in question, then
migration results in loss of status. Thus, benefit of horizontal
reservation under Letter No. 2342 dated 15.02.2016 [Annexure
P2] is restricted to residents / domiciles of the State of Bihar. It
is stated that the Respondent Commission has followed the
same principle in other horizontal reservation granted by the
State of Bihar i.e. for family members of freedom fighters,
however, in the case of female reservation the Respondent
Commission to give the settled position of law a complete go-
by which cannot be sustained in the eyes of law.
9. It is finally stated by the Petitioner that she is
eligible under the terms of the Advertisement to be appointed
for the post of Assistant Engineer (Civil). It is stated that the
Petitioner obtained B.Tech. in Civil Engineering from B.I.T.,
Sindri (Vinoba Bhave University) in 2013 and secured first
division (7.20 CGPA). Thereafter, the Petitioner duly qualified
in both preliminary and main examination pursuant to
Advertisement No. 02/2017. It is stated that the Petitioner
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
secured 340 marks in main written examination while cut-off
for Unreserved (Female) was merely 275. Thus, it is stated that
Petitioner is qualified to be selected and as such the
Respondent Commission could not have selected male
candidates on the posts meant for Female candidates under the
benefit of horizontal reservation.
10. Supplementary Affidavit was filed on behalf of
the petitioner dated 01.09.2021 and submits that in compliance
of the order dated 16.08.2021 passed in C.W.J.C. No. 13107 of
2021 and analogous case passed by this Hon'ble Court, the
Respondent Bihar Public Service commission has revised the
final Result dated 14.07.2021 and again published final result
of Assistant Engineer (Civil) pursuant to advertisement
No.02/2019 on 24.08.2021 (Annexure-P/11 page 25)in which
again the name of the petitioner was omitted from the revised
final Result dated 24.08.2021 and only 1241 candidates were
declared successful against 1284 vacancies. It is stated that a
bare perusal of the final result would several that under
unreserved (01) category only 703 candidates were declared
successful whereas total number of vacancies under unreserved
category was total number of vacancies under unreserved
category was 735.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
11. Counter Affidavit on behalf of Bihar Public
Service Commission was filed on 15.12.21. The commission
submits that it has published the final result in the light of
letter no. 2342 dated 15.02.2016 and letter no. 11364 dated
04.09.2017 of the General Administration Department,
Government of Bihar keeping in view the provision of 35%
horizontal reservation available to women candidates of all
categories and in accordance with the number of vacancies and
roster prepared by the Department concerned. It is stated and
submitted that the benefit of 35% horizontal reservation to
women candidates of all categories has been extended in
accordance with the opinion rendered by the Advocate General
in this behalf. Moreover, memo no. 2342 dated 15.02.2016
does not restrict the said benefit to the women candidates
belonging to the State of Bihar only. It is stated that the
Commission has not violated the terms of memo no. 2342
dated 15.02.2016 and the final result has been published by the
Commission on 14.07.2021 strictly in accordance with terms
of the requisition, reservation rules and roster prepared by the
Department concerned. It is further stated that the petitioner
was not declared successful as she secured finally 390 marks
which is less than the cut off marks in her category, i.e., 394.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
The petitioner being a General category candidate is placed at
merit sl.no. 2155 and the last candidate selected is placed at
merit sl.no. 501 and the last selected candidate under 35%
horizontal reservation for women in General category is at
merit sl. no. 2092 and the petitioner's merit sl.no. is 2155 in the
combined merit list. Respondents further states and submit that
the Commission has published revised final result on
24.08.2021 in view of the order passed by the Hon'ble High
Court in CWJC No. 13107/2021 and another analogous matter.
Thereafter, the Commission sent the revised recommendation
of the successful candidates to the concerned Department vide
letter no. 30 dated 25.08.2021. Thus, the selection process is
over.
12. Petitioner files the rejoinder to the Counter
Affidavit filed by the Respondent i.e. Bihar Public Service
Commission dated 13.01.2022. In the rejoinder the petitioner
submits that in the counter affidavit, under reply, is completely
silent about number of posts reserved for female under 35%
horizontal reservation given to female candidates. It stated that
only 192 female candidates (out of total 702) were selected
under Unreserved Category which comes to about only
26.64% of the total selected candidates whereas 35%
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
horizontal reservation is stipulated. It is stated that vacancies
still remain as lesser number of candidates was selected than
the total vacancies. Therefore, the Petitioner may be selected
against one such vacant post without interfering with the rights
of other candidates created under Final Result dated
14.07.2021.
13. Supplementary counter affidavit on behalf of the
Respondent i.e. Bihar Public Service Commission was filed on
07.02.2022. Respondents in compliance of the order dated
24.01.2022 passed in the instant matter, presents the chart
giving details of number of vacancies advertised in various
categories including that for female category and selected
candidates under different categories are as follows:
Sn Category No. of No. of No. of Total number Details of
vacancy selected vacancies of females the last
candidates for female Candidates selected
No selected candidates
UR (01) 719 703 192 192 Roll no-
220116
Name-
Pooja
SC (02) 147 147 50 31 Roll no-
212173
Name-Jyoti
kumari
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
ST (03) 04 04 02 02 Roll no -
210416
Name-
Supriya
Kumari
EBC (04) 230 230 58 58 Roll no.-
228047
Name-
Archana
Kumari
BC (05) 92 92 21 21 Roll no.-
216744
Name-
Tripti
Jaiswal
BCL (06) 65 65 65 65 Roll no.-
212350
Name-
Ankita
kumari
TOTAL 1257 1241 388 369
14. In the supplementary counter affidavit the
Respondent submits that the General Administration
Department, Government of Bihar vide letter no. 2342 dated
15.02.2016 (Annexure - E to the counter affidavit) clearly
stipulates that in the event of non-availability of eligible
female candidates, the posts may be filled by male candidates
of the relevant category (reserved/unreserved) in the same
recruitment year. In the light of above-mentioned letter
remaining vacant 19 seats of SC (02) Category which were
reserved for female candidates has been filled with male
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
candidates of SC (02) Category due to non-availability of
suitable eligible female candidates of SC (02) Category.
15. Respondent namely the State and Additional
Secretary, General Administrative Department filed the
Counter Affidavit for the first time on 29.03.2022. Vide letter
No. 3836 dated 14.03.2022 of General Administration
Department, Bihar, Patna, the Additional Chief Secretary /
Principal Secretary / Secretary of the concerning departments
viz. Construction Department, Bihar, Patna / Public Health
Engineering Department Bihar, Patna Department, Bihar,
Patna Resources Department, Bihar, Patna Building
Construction Department, Bihar, Patna / Rural Works
Department, Bihar, Patna and Planning and Development
Department, Bihar, Patna were requested / Minor Water
Resources Road / Water Building Construction Department,
Bihar, Patna / Rural Works Department, Bihar, Patna and
Planning and Development Department, Bihar, Patna were
requested to furnish the copy of the roster clearance done by
their Department and sent to the General Administration
Department, Government of Bihar in the matter of
Advertisement No. 02/2017, for appointment of the published
Assistant Engineer (Civil). All the seven departments came
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
with its report regarding roaster clearance for advertisement in
question. I would like to reiterate the data as it is presented to
me in the counter affidavit of the Respondent.
16. The Building Construction Department- For this
department, there were 122 vacancies reported in which 38
posts were calculated as a back log. In this way, the current
vacancies were only 84 against which 22 posts available to the
women as a horizontal reservation. The roster clearance for
122 posts were made in two transactions; naturally there is a
short fall of horizontal reservation in the said case.
17. The Rural Works Department- For this
department there were 250 vacancies reported, against which
17 posts were calculated as a back log, in this way the current
vacancies available were only 233. Wherein roster clearance
for 59 posts were given to the women as a horizontal
reservation. As the roster clearance for 250 posts has been
done in two transactions, hence there is minor short fall too of
horizontal reservation for women in this case.
18. The Road Construction Department- For this
department there were 236 vacancies were reported against
which 57 posts were calculated as a back log, in this way the
current vacancies were only 179. In this roster clearance 56
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
posts were given to the women as a horizontal reservation. As
roster clearance for 236 posts have been done in two
transactions, hence there is minor short fall too of horizontal
reservation for women in this case.
19. The Public Health Engineering Department- For
this department there were 64 vacancies reported against
which 17 posts were given to the women as horizontal
reservation. Since the roster clearance for 64 posts have been
done in three transactions, hence there is an automatic short
fall in the horizontal reservation for women in this case.
20. The Planning and Development Department- For
this department there were 270 vacancies reported against
which 92 posts were given to the women as a horizontal
reservation. As the roster clearance for 270 posts has been
done in one transaction, hence in this case, the quota of
horizontal reservation has been fully filled up.
21. The Water Resources Department- For this
department there were 284 vacancies reported, against which
73 posts were given to the women as a horizontal reservation.
Also 23 posts were given to the women for backward classes
(W.B.C.) as a back log. There is a short fall of horizontal
reservation in this case, but it is due to calculation of back log
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
for W.B.C. in this roster clearance.
22. The Minor Water Resources Department- For
this department there were 56 vacancies reported earlier but on
later part, the vacancies were revised and it was reported as a
31 posts only. Against which 2 posts calculated as a back log
and 5 posts were given to the women as horizontal reservation.
As roster clearance for 31 posts has been done in two
transactions, hence there is also a minor short fall in horizontal
reservation for women in this case. But it is due to revision of
vacancies made by the administrative department.
23. Above data in simplified form has been traced
down in the chart form:
S.no. Name of the Total no. of 35% of Actual horizontal
department vacancies total reservation
vacancies (female)
provided by the
department
1) Planning And 270 94.5-95 92
Development
Department
2) Public Health 64 22.4-22 17
Engineering
Department
3) Minor Water 31 10.85-11 5
Resources
Department
4) Road 236 82.6-83 55
Construction
Department
5) Water 284 99.4-99 73
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
Resources
Department
6) Building 122 42.7-43 22
Construction
Department
7) Rural Works 250 87.5 59
Department
Total 1257 441 323
24. State further mentions the Letter No. 3862 dated
16.03.2022 which reports about the 719 posts or vacancies
being calculated for unreserved category against which 192
posts have been made available to the female candidates of
unreserved category. In the combined merit list prepared for
the final result the name of the petitioner i.e. Sushma Kumari
(Roll No. 213988) has been shown at Sl. No. 2155, whereas
the last successful candidate in this category is at Sl. No. 2092.
It is also relevant to point out and submit that there are 9
female candidates placed in between combined merit list from
2092 to 2155 who have not been selected due to lack of
vacancies in this category.
25. Second 2nd Supplementary Affidavit on behalf of
the petitioner was filed on 29.03.2022. It is being filed in in
compliance of the order dated 03.03.2022 passed in the instant
writ application by this Hon'ble Court whereby and
whereunder direction was issued to the Petitioner in the
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
following terms: "Learned counsel for the petitioner is hereby
directed to ascertain from the internal correspondence
between the State Government (Seven departments) and
B.P.S.C. in respect of reservation for number of posts to be
recruited with reference to reservation policy. He is hereby
directed to apprise by means of a chart or statement with
reference to various notifications issued by the seven
departments to the B.P.S.C. in order to arrive whether is there
any violation of percentage of reservation for women
candidates in the process of recruitment to the post of
Assistant Engineer (Civil) or not?". Upon the direction, the
internal communication between the respective departments of
Government of Bihar and Respondent Bihar Public Service
Commission regarding number of vacancies and applicable
reservation was handed over to the Petitioner pursuant to the
direction of this Hon'ble Court. According to the internal
communication all the respective seven Departments of
Government of Bihar, in unison, acknowledge and accept
applicability of Letter No. 2342 dated 15.02.2016 [Annexure
P2 to the Writ Application] in the instant selection process
whereby 35% horizontal reservation has been granted to
female candidates in all the categories including unreserved
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
category. Petitioner vehemently points out the error has crept
into the requisitions made by the respective Departments, in as
much as, 35% horizontal reservation to female candidates in
light of Letter No. 2342 dated 15.02.2016 [Annexure P2 to the
Writ Application] has not been extended in its true letter and
spirit. It is stated that as many as 118 seats have not been
reserved for Female Candidate in violation of Letter No. 2342
dated 15.02.2016 as 35% of total requisitioned vacancies by
the respective Department i.e. 1257 [as stated in the internal
communications) comes to about 441 vacancies but reservation
has been extended only to 323 candidates. Denying the chart
proposed by the state, the petitioner put forth its own detailed
chart as follows:
Sno. Name of the Total no. of 35% of total Actual-horizontal
department vacancies vacancies reservation(female)
provided by the
department
1) Planning And 135 47.25-47 46
Development
Department
2) Public Health 32 11.2-11 9
Engineering
Department
3) Minor Water 28 9.8-10 5
Resources
Department
4) Road 104 36.4-36 31
Construction
Department
5) Water Resources 196 68.9-69 48
Department
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
6) Building 54 18.9-19 14
Construction
Department
7) Rural Works 170 59.5-59 39
Department
Total 719 251 192
26. Petitioner pleads that it is crystal clear from the
chart herein above that even in unreserved category, to which
the Petitioner belongs, benefit of horizontal reservation was
not provided for 35% female candidates as provided under
Letter No. 2342 dated 15.02.2016 (Annexure P2 to the Writ
Application). It is stated that as many as 59 seats have not been
reserved for Female Candidate as 35% of total requisitioned
vacancies by the respective Department i.e. 719 [as stated in
the internal communications] comes to about 251 vacancies
but reservation has been extended only to 192 candidates.
Petitioner reiterates that total number of vacancies still remain
unfilled, in as much as, lesser number of candidates were
selected against total number of vacancies, Therefore, the
Petitioner may be selected against one such vacant post
without interfering with the rights of other candidates created
under Final Result dated 14.07.2021 and 24.08.2021.
27. Supplementary Counter Affidavit was filed on
behalf of The State on 13.05.2022. The state emphasis on
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
adoption of 100 point modal roaster in which 35 percent
horizontal reservation has been granted to all unreserved and
reserved category and presented the chart below:
i) Unreserved Roster Point-
3,9,15,21,27,33,39,45,49,55,61,67,73,7
9, 85,91,97= 17 posts
ii) Schedule Cast Roster Point- 10,24,40,62,78,98= 6
posts
iii) Schedule Tribe Roster Point- 0 posts
iv) Extremely Backward Class Roster Point-8,26,42,60,70,94,100= 7
posts
v) Backward Class Roster Point- 12,38,64,90= 4 posts
Total - 34 posts
28. For the matter relating to 35% horizontal
reservation of women, state contends that it may be saturated
only in the situation, when roster clearance falls under roster
point 1 to roster point 100. In case of such roster clearance not
falling under roster point 1 to roster point 100, it may be less
than 35%, more than 35%, 0% and 100%.
29. Case of the other petitioners are factually similar
with that of Sushma Kumari's. They also have filed the writ
petition for similar relief. Only difference in the above-
mentioned cases are, while Sushma Kumari got 390 marks,
Snehi Kumari, petitioner of CWJC No.5493/2022 got 392
marks, Bhavana Mishra, petitioner CWJC No.13884/2022 also
got 392 marks, Kushboo Kumari, petitioner of CWJC
No.13970/2022 got 390 marks & Nancy Shubham, petitioner
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
in CWJC No.14202 of 2022 got 375 marks.
30. Mr. Rajendra Narain, learned Senior Counsel
appearing on behalf of the petitioners in CWJC No. 5493 of
2022, CWJC No.15520 of 2021, CWJC No.13884 of 2022,
CWJC No.13970 of 2022 and CWJC No.14202 of 2022. In the
above mentioned writ petitions, at the outset draws my
attention to the contents of Advertisement No.02/2017. The
said advertisement states consolidated number of vacancy to
be filled up in different departments of Engineering Service
which was initially declared as 963.
31. It is stated in the said advertisement that 35% of
horizontal reservation would be available to the female
candidates. There are other horizontal reservations stated in the
said advertisement. However, these are not relevant for our
purpose. In Clause-6(ka)(i) it is further stated that the
candidates who want to claim reservation must state the said
fact in their application. The reservation policy would be
applicable for the candidates, who are permanently residing in
the State of Bihar. The said policy also is not applicable for the
candidates residing outside the State of Bihar.
32. Subsequently, another notification under same
advertisement number was released, enhancing the number of
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
total candidates to 1284.
33. The learned Senior Counsel next submits that the
General Administrative Department, Government of Bihar was
at a fix, as to how 35% of horizontal vacancy is to be filled up
in relation to roster point. The issue was referred to the learned
Advocate General of the State of Bihar. The learned Advocate
General placing reliance on the Supreme Court decision in
Rajesh Kumar Dariya Vs. Rajasthan Public Commission and
others, (2007) 8 SCC 785 and Anil Kumar Gupta Vs. The
State of Uttar Pradesh, (1995) 5 SCC 173 at Page-185,
opined inter-alia as follows:-
"However, a three Judge Bench of the Hon'ble
Supreme Court in the case of Rajesh Kumar
Dariya Vs. Rajasthan Public Commission and
others, reported in (2007) 8 SCC 785 quoted
with approval, in para-7 the method of
implementing special reservation, which is
horizontal reservation as explained in the case of
Anil Kumar Gupta Vs. The State of Uttar
Pradesh, reported in (1995) 5 SCC 173 at Page-
185. The proper and correct course is to first fill-
up the Open Competition (O.C.) (50%) on the
basis of merit, then fill up each of the social
reservation quotas i.e. S.C., S.T. and B.C.. The
third step would be to find out, how many
candidates to special reservations have been
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
selected on the above basis. If the quota fixed for
horizontal reservation is already satisfied- in case
it is an over all 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 categories by deleting the
corresponding number of candidates therefrom.
(if, however, it is a case of compartmentalized
horizontal reservation, then the process of
verification and adjustment/ accommodation, as
stated above, should be applied separately to
each of the vertical reservation. In such a case,
the reservation of 15% in favour of special
categories, over all may be satisfied or may
not be satisfied."
34. It is pertinent to mention here that above
underlined portion is stressed upon by the learned Advocate
General in his argument, which I proposed to discuss at the
relevant point of time.
35. The said Notification No.2342 dated 15.02.2016
was further explained by illustration as follows :-
" If 100 vacant posts are to be selected-
(a) First, 50% of such vacant post shall be filled
up on the basis of merit. In the said merit list
unreserved candidates, reserved candidates,
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
women, men, all shall be accommodated.
(b) On the next phase 50% of reserved candidates
would be selected and filled up. Out of the said
50% reserved candidate, 47% candidates would
be either male or female candidates and 3%
would be reserved female candidates.
(c) In the third phase of selection process
calculation will be made on the basis that how
many women are selected in different
reserved/non-reserved categories without 35%
horizontal reservation in the selected list of 100
posts. If their 35% horizontal reservation quota is
completed, then this selection list will be
considered final for appointment. If on this basis
of the 35% horizontal reservation quota for
women is not completed, then in the particular
category (reservation/unreserved) in which there
is a shortage of women, to complete it upto the
limit of 35% in that category, that number of
male candidates having the lowest position in the
merit order will be removed so that the
reservation limit of 35% for women is
completed. If there are female candidates in the
lowest position, then instead of removing them,
the male candidate above them in the merit order
will be removed.
36. On the basis of the above illustration, the State-
Respondents in their supplementary counter affidavit dated
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
13.05.2022 stated the roster points in respect of 34 posts
against 100 posts to be applicable for horizontal reservation.
37. The learned Senior Counsel on behalf of the
petitioners next refers to Page-43 of the writ petition stating,
inter-alia, that in different departments of Engineering Service
after examination 733 candidates were selected and out of the
said 733 candidates, 196 female candidates were selected
under 35% reservation, meaning thereby the State only filled-
up 26.74% of the vacancy.
38. Similarly in respect of Extremely Backward Class
quota 240 candidates were selected, out of which 62
candidates were women, meaning thereby 25.83% of
horizontal reservation was filled up.
39. In time it is submitted by the learned Senior
Counsel on behalf of the petitioners that out of 1282
candidates, 331 female candidates were selected, whereas 448
female candidates ought to have been selected had 35% of
horizontal reservation been taken care of.
40. The learned Senior Counsel on behalf of the
petitioner simultaneously takes me to Annexure-C of the
counter affidavit filed by the BPSC refers to a corrigendum
dated 20.02.2021, which refers to the number of total post of
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
Engineering Service, which were filled up, was 1257 and out
of the said 1257 candidates, 323 women candidates were
selected in respect of 35% quota, while 35% of 1257 would
come to 440, so shortage remains the same.
41. It is submitted by the learned Senior Counsel on
behalf of the petitioners that cut off mark for unreserved
female candidates was fixed by the Public Service
Commission by its notice dated 14.07.2021 as 394 marks. It is
contended on behalf of the petitioners that had entire 35% of
horizontal reservation been accommodated in the reserved
quota of unreserved candidates, the cut off mark would have
been come down and the petitioners could have been selected
in service.
42. The learned senior counsel on behalf of the
petitioner next refers to the counter affidavit filed on behalf of
the Bihar Public Service Commission on 15.02.2021. In
paragraph No.13 of the said counter affidavit it is claimed by
the Commission that it had published the final result in the
light of Letter No.2432 dated 15.02.2016 and the letter
No.11364 dated 04.09.2017 issued by the General
Administration Department, Government of Bihar keeping in
view the provision of 35% horizontal reservation available to
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
women candidates of all categories and in accordance with the
number of vacancies and roster prepared by the department
concerned. It is also contended on behalf of the B.P.S.C. that
before publication of result legal opinion of the Advocate
General of the State was obtained and the result was published
on the basis of the said legal opinion. On 24.08.2021, in view
of the order passed by this Court in C.W.J.C. No.13107 of
2021. In view of such circumstances, it is contended on behalf
of the B.P.S.C. that selection process being over, these batch of
writ petitions are not maintainable.
43. In reply to such objection, the learned Senior
Advocate on behalf of the petitioners refers to paragraph No.7
of the rejoinder affidavit filed on behalf of the petitioners on
31.01.2022, it is contended on behalf of the petitioners in
CWJC No.15520 of 2022 that the petitioners failed to clear cut
off marks of 394 and she was not selected in the horizontal
reservation of 35% meant for female candidates. However,
both the States Government as well as B.P.S.C. remain
complete silence about number of posts reserved for female
under 35% horizontal reservation given to the female
candidates. It is stated that only 192 female candidates out of
total 703 were selected under unreserved quota, which comes
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
to about only 26.64% of the total selected list, whereas 35% of
horizontal reservation is stipulated.
44. In this regard, the learned Senior Advocate on
behalf of the writ-petitioners refers to Order No.7 dated
22.02.2022, Order No.8 dated 03.03.2022, Order No.9 dated
09.05.2022 and Order No.10 dated 17.05.2022 passed by a
Coordinate Bench during the pendency of the instant writ
petitions. I have carefully perused the said order, in Order No.7
dated 22.02.2022 it is observed by this Hon'ble Court:-
"If one go by arithmetic calculation for 703
selected candidates 35% would be 246 that apart it is
confusing process for the reasons that the number of
vacancies were notified 1284. In other words, there is
no corrected figure in respect of filling up of
Assistant Engineer (Civil) pursuant to the
Advertisement No.2/2017 since several time number
of vacancies have been altered".
45. With the above observations, next date of hearing
was fixed on 03.03.2022. On 03.03.2022, this Court passed
order No.8 directing the Principal Secretary, General
Administration Department, how each of the department have
arrived to the percentage of women reservation for the purpose
of present recruitment to the post of Assistant Engineer (Civil),
since 35% of the number of vacancies notified are not tallying
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
with the percentage of reservation. From the date of
reservation policy to the extent of 35% for general women till
the present recruitment how many vacancies for women
reservation have been filled up be made known with necessary
material information so as to ascertain as to whether any
excess reservation to the women has been provided in earlier
recruitment so as to reduce the percentage of women
reservation in the present process of recruitment or not? The
aforesaid material shall be placed on record by means of
supplementary affidavit by the 5th respondents in the form of
statement.
46. B.P.S.C. was also directed to furnish internal
information between the State Government Departments
(Seven) and the B.P.S.C. in respect of process of recruitment to
the post of Assistant Engineer (Civil) by various notifications
which has been made available to the Court during the course
of the day. The petitioner was also directed to ascertain from
the internal correspondence between the State Government
(Seven departments) and B.P.S.C. in respect of reservation for
number of posts to be recruited with reference to reservation
policy. The petitioner was further directed to apprise by means
of a chart or statement with reference to various notified issued
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
by seven Department to the B.P.S.C. in order to arrived at
whether is there any violation of percentage of reservation for
women candidates in the process of recruitment to the post of
Assistant Engineer (Civil) or not? On 09.05.2022 the Under
Secretary, General Administration Department, Government of
Bihar was directed to be present in Court to apprise as to how
he has calculated women reservation as 35%. By order No.10
dated 17.05.2022 it is observed by the Coordinate Bench that
by virtue of Additional Supplementary Counter Affidavit, the
State Government has admitted in Annexure-G that some error
was committed in respect of non adherence to 35% women
reservation by the respective department while forwarding the
material information to Government Commission to fill up
Assistant Engineers post. In the light of such admission on
behalf of the State, the State- General Administration
Department was directed to rectify the classification of
vacancies earmarked for women reservation and to that effect
necessary correction was directed to be made to the original
proposal to fill up the post of Assistant Engineer in various
departments to the Public Service Commission.
47. The learned Senior Advocate on behalf of the
petitioners refers to paragraph No.10 of the counter affidavit
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
filed by the General Administration Department at Page-174
and submits that there are in all 75 posts which remains
unfilled from 35% quota alongwith the statement made in
paragraph No.10 of the aforesaid counter affidavit.
48. The learned Senior Counsel on behalf of the
petitioners draws my attention to Annexure-G at running page-
376 of the supplementary counter affidavit filed by respondent
No.5. Annexure-G shows that in Planning and Development
Department, 270 numbers of posts of Assistant Engineer
(Leaving Behind) P.H.C. candidate was 270 and the calculation
of 35% / 34% of horizontal vacancies for women was fixed at
92. However, 35% of such vacancies ought to have been 94/95
so there are two vacancies to be filled up in Planning and
Development Department. In Minor Water Resources
Department, total number of vacancies in unreserved category
was shown as 31 and the number of horizontal vacancy was
shown as 11; out of the said 11 candidates, 05 candidates were
appointed. In Water Resources Department, out of 270
candidates, 92 was shown as the percentage of horizontal
vacancy and out of them 73 vacancies were filled up. In
Building Construction Department, there were 84 unreserved
candidates out of them 29 women candidates were recruited in
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
35% quota and the vacancy is 22. In Rural Construction
Department, out of 233, 79 posts were filed up, in 35% women
reservation quota leaving behind 59 posts. In Road
Construction Department out of 179 unreserved posts, 80 posts
were filled up in 35% quota but 56 posts were created. In
Public Health Engineering Department, out of 64 unreserved
quota, 22 posts were filled up by 35% reservation and 17 posts
were filled and explanation was supplied in Annexure-G
stating the reasons of lesser number of appointment in 35%
reserved quota for the women. I proposed to deal with the
reasons subsequently.
49. The learned Senior Advocate on behalf of the
petitioners also submits that the State Government filed L.P.A.
against the order dated 17.05.2022 passed by this Court. The
said L.P.A. bearing L.P.A. No.309 of 2022 was disposed of on
17.04.2023 wherein the Division Bench noticed that the
interim order dated 17.05.2022 effectively disposed of the writ
petition directing revision of seniority list. The argument of the
reservation not being employed on the cumulative posts
available in the notification and roster points having been
identified with respect to the different categories, both reserved
and unreserved, for the purpose satisfying horizontal
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
reservation at the rate of 35% was not considered. The learned
Advocate General has made further submission that 3% of the
posts are reserved for Schedule Backward Class Tribes Women
and in the circumstances applying 35% reservation can only
lead to such percentage being applied on 97 vacancies which
essentially would work out to 34% of the total vacancies.
50. Considering such aspect of the matter, the
Division Bench was pleased to set aside the impugned order
with liberty to the parties to agitate every point before this
Court on merit.
51. The learned Single Judge was also given liberty to
consider the validity of the argument advanced on behalf of the
State.
52. Mr. Rajendra Narain, learned Senior Counsel on
behalf of the petitioners next draws my attention to Annexure-
SA/2 appended to the 3rd supplementary affidavit on behalf of
the petitioners. Annexure-SA/2 is a Notification No.14762
issued by the General Administration Department, Government
of Bihar. Paragraph No.2 of the said notification is important
and reproduced below in English :-
"2. It is noteworthy, in this regard from the
observation of the mark sheet of the petitioner (Ms.
Sushma Kumari) attached with the affidavit filed by
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
the Commission in the writ petition No.15520 of
2021 (Sushma Kumari Vs. Bihar Public Service
Commission and others) that she is a candidate of
unreserved category. It was also considered that
while publishing result of the concerned
examination, in the event of non-availability of total
17 eligible disabled candidates, a total 17 posts of
unreserved candidates have been kept reserved by
forwarding them by further transaction, i.e. there are
total 17 such posts, the requisition of which has
already been sent to the Bihar Public Service
Commission but against this no recommendation
has been made at present."
53. In the subsequent clauses of the said notification,
it is stated :-
"3. In clause-9 of the Resolution No.962
dated 22.01.2021 of the General Administration
Department, it is provided that - "Where a vacancy
cannot be filled in any recruitment year due to
non-availability of persons with disabilities
referred to above or for any other sufficient
reason, such vacancy shall be carried forward to
the subsequent recruitment year by marking it in
the unreserved category......
4. Therefore, in the light of the order passed
by High Court, Patna on 17.05.2022 in C.W.J.C.
No.15520 of 2021 (Sushma Kumari Vs. Bihar Public
Service Commission and others) and on 18.08.2022
in M.J.C. No.1247 of 2022 (Sushma Kumari Vs.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
Bihar Public Service Commission and others) and
subject to the final order passed in L.P.A. No.309 of
2022 (State of Bihar and others Vs. Sushma Kumari),
filed by the State against order passed in C.W.J.C.
No.15520 of 2021, Bihar Public Service Commission
permitted to select the petitioner Ms. Sushma Kumari
against a vacant posts from the 17 unreserved vacant
posts earlier requisitioned but earmarked for disabled
persons against the horizontal reservation of 35% for
women under the unreserved category, for the time
being, revised requisition for only one (01) post is
being sent to the Bihar Public Service Commission."
54. Thus, it is contended on behalf of the learned
Senior Counsel on behalf of the petitioners that in case of
horizontal vacancy, first the unreserved meritorious candidates
are to be filled up in their 50% quota. Thereafter, as a result of
horizontal vacancy within a particular quota (here it is
unreserved), the successful women candidates will march into
the position from below the list till completion of the special
quota of 35% / 34%. The quota of female unreserved
candidates within the same unreserved category was stipulated
by the State in order to implement Article 15(3) and Article
16(4) of the Constitution of India because of inadequate
representation of women in the services under the State.
55. In support of his argument, he first refers to the
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
decision of the Hon'ble Supreme Court in Anil Kumar Gupta
and others Vs. State of U.P. and others, reported in (1995) 5
SCC 173, it is submitted by the learned Senior Counsel on
behalf of the petitioners that the learned Advocate General
submitted his opinion on the basis of paragraph No.17 & 18 of
the aforesaid report in Anil Kumar Gupta (supra). However,
State Government has not taken care of Paragraph No.20 of the
aforesaid judgment.
56. In paragraph No.19 of the said judgment, the
Hon'ble Supreme Court reiterated the observation of Indra
Sawhney case, 1992 Supplementary 3 SCC 217.
57. In Indra Sawhney, it was observed :-
"(B) But at the same time, one think is
clear. It is in very exceptional situation - and not for
all and sundry reasons - that any further
reservations and whatever kind should be provided
under clause (1). In such cases, the State has to
satisfy, if called upon, that making such a provision
was necessary (in public interest) to redress the
specific situation. The very presence of clause (4)
should act as a damper upon the propensity to create
further classes deserving special treatment. The
reason for saying so is very simple. If reservations
are made both under clause (4) as well as under
clause (1), the vacancies available for free
competition as well as reserved categories would be
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
correspondingly whittled down and that is not a
reasonable think to do."
58. Acquitting the said observation, it is decided by
the Hon'ble Supreme Court in Anil Kumar Gupta :-
"Though, the said observation was made
with reference to clause (1) and (4) of Article 16, the
same apply with equal force to clauses (1) and (4) of
Article 15 as well in this case, the reservation of 15%
of seats for special categories was on very high side.
As pointed out above, two categories out of them
representing 6% out of 15% are really reservations
under Article 15(4) wrongly treated as reservations
under Article 15(1). Even otherwise the special
reservation would be 9%. The respondents would be
well advised to keep in mind the admonition
administered by this Court and ensure that the special
reservations (horizontal reservations) are kept at the
minimum."
59. Subsequently, in paragraph No.20, the Hon'ble
Supreme Court was pleased to state the reason for its
decision :-
"20. Having pointed out the errors in the
rule of reservations and its implementation, the
question arises what should be done now? Should we
interfere with the admissions already finalised? We
think it inadvisable to do so. It may be remembered
that the admissions now finalised (in June-July,
1995) are really the admissions which ought to have
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
been finalized one year back. The delay has occurred
on account of first faulty notification (issued on
17.05.1994). When a writ petition was filed in this
Court - probably some writ petitions in High Court
also - the Government realised its mistake and issued
the revised notification on 17.12.1994. It dropped the
reservation in favour of women in stages. The
University had then to issue a corrigendum asking
the special category candidates to indicate their
social status. This was a delayed exercise which
ought to have been undertaken at the beginning itself.
Even the manner in which the seats have been filled
up, as indicated above, is faulty. What we have laid
down herein is more for the purpose of future
guidance for the respondents. At the same time, we
have to rectify the injustice done to the open
competition candidates in the admissions in question,
to the extent feasible. Accordingly, we direct that in
the matter of admission made pursuant to CPMT
1994, while the admissions are already finalized shall
not be disturbed, the Uttar Pradesh Government shall
create 34 additional seats in the M.B.B.S. course and
admit 34 students from the OC category against those
seats. If any seats are vacant as on today, they shall
also be filled from the O.C. category alone. (It is
made clear that O.C. category means, the merit list
and not distinction shall be made among the
candidates in the O.C. list on the basis of their social
status because it is well settled that even a
ST/SC/OBC candidates is entitled to obtain a seat in
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
the O.C. category on the basis of his merit). The
Counsel for the petitioners complain that 54 students
belonging to O.C. category have been deprived on
account of respondents faulty actions and that it
should be directed to be made up. We cannot agree.
The factual basis of this submission is debatable in
view of ambiguity mentioned herein before. We have
directed creation of 34 seats (making a total of 780
seats this year) having regard to all the facts and
circumstances of the case, this creation of additional
seats is restricted to current admissions only and shall
not be a permanent future. The Uttar Pradesh
Government/concerned Authorities shall allocated
the said 34 additional seats appropriately among the
government medical colleges and make admission
thereto as early as possible."
60. Thus, it is contended by Mr. Rajendra Narain,
learned Senior Counsel for the petitioners that if the Court
finds that the petitioners are entitled to be appointed in 35% of
reserved quota for the women and due to faulty calculation
they were deprived from getting their service, the Court can
very well direct the State Government to absorbed these 09
petitioners in the Engineering Service to correct the wrong
committed by the respondents.
61. It is further submitted by the learned Senior
Advocate on behalf of the petitioners that relying on the latest
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
decision of the Hon'ble Supreme Court reported in State of
Tamil Nadu and others Vs. K. Shobana, reported in (2021) 4
SCC 686 that the Hon'ble Supreme Court in the aforesaid
report has clearly stipulated the method in which different
categories of selected candidates would be appointed. It is
stated by the Hon'ble Supreme Court in Paragraph No.16 :-
"16. That thus, first the meritorious
candidates would take their place in the general merit
list where no reservation would apply. Reservation
would apply thereafter, whereby the backlog
vacancies would be filled in first, followed by the
current year vacancies. In a nutshell, his contention
was that Section 27 of the Act has nothing to do with
the selection based on merit, and only applies to the
mode of reservation post that stage. Two lists for "the
distinct groups" are required to be made as provided
for the reserved vacancies, which would be-first, a
backlog list and then, secondly, the current list. The
meritorious selected candidates have nothing to do
with this part of the list. Our attention was also
drawn to the provisional selection list dated 20-11-
2019 to point out how the merit list had been drawn
up. The submission, thus, was that this is the
consistent and correct practice, and the fact that this
problem arose only in case of Chemistry would make
no difference even though practically now all the
backlog vacancies would be filled in.".
62. The Hon'ble Supreme Court then refers to the
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
steps to be taken in implementing filling up of posts of
unreserved and reserved quota as held by the Apex Court in
Saurav Yadav Vs. State of U.P., reported in (2021) 4 SCC 542,
the Hon'ble Supreme Court held in paragraph No.22 :-
"22. First we would like to turn to the
judgment (K. Shobana & Ors. Vs. State of Tamil
Nadu and others), of the learned Single Judge,
which, in our view, is absolutely lucid and clear to
the controversy and the conclusion. The learned
Single Judge set forth the controversy in the first
paragraph itself i.e. whether the candidates who
secured high marks should have been fitted in the
general turn but have been fitted in MBC/DNC
quota for the last year, which in turn has deprived
certain candidates of selection. It has been rightly
noted that the entire confusion has arisen due to the
wrong reading of provisions of Section 27 of the
Act, which provides for reservation for appointment.
Section 27(f) merely states that if the required
number of candidates belonging to the community
which fall under reservation are not available, then,
the vacancies, for which selection could not be made
in the current year, should be treated as backlog
vacancies. In the subsequent recruitment, the
backlog vacancies and the current vacancies for the
particular community must be separately announced,
and the direct recruitment must first accommodated
the backlog vacancies and thereafter only, the
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
current vacancies have to be accommodated. The
provision had been read by the appellants as if the
backlog vacancies must be filled in by MBC/DNC
category candidates, irrespective of the merit of the
candidate or the rank secured by him/her. The
highest mark that was secured was 109 and, up to 90
marks, the candidates were fitted in general turn and
thus those candidates will have to be selected under
the general turn, irrespective of their community. It
is these candidates who had been fitted in the
backlog vacancy which has caused the problem."
63. Thus, the Hon'ble Supreme Court reiterated the
steps to be taken by the concerned authority in filling up of
posts. The steps are clear in their terms: in the given facts of
the case, application of those principles or steps would imply:
(a) the general merit list to be first filled in;
(b) the backlog vacancies of the particular reserved
category to be thereafter filled in "first"; and
(c) the remaining reserved vacancies for the current
year to be filled thereafter."
64. It is contended by Mr. Rajendra Narain, learned
Senior Counsel on behalf of the petitioners that Advertisement
No.02/2017 did not disclose the number of backlog vacancies.
Entire vacancies were shown as current vacancies in respect of
filling up of horizontal reservation amongst unreserved
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
candidates, first the entire merit list in unreserved candidates
are to be filled in. Thereafter, the requisite percentage of
unreserved women candidates should march ahead of the male
candidates to fulfill the quota.
65. In case of horizontal vacancy there cannot be any
roster point. Roster point refers to vertical vacancy in respect
of separate class of people on the basis of their backwardness
on the ground of caste, religion, extremely economic
backwardness. Therefore, it is submitted by Mr. Rajendra
Narain, learned Senior Counsel that if horizontal reservation
would have been filled up without leaving the percentage of
their quota, all the petitioners would have been appointed to
the post of Assistant Engineer.
66. Per-contra, learned Advocate General on behalf of
the State-Respondents submits that the case of the petitioners
suffers from three inherent fallacies :-
"(i) horizontal reservation for the women in
unreserved quota is not 35%, but 34%,
(ii) foundation of the case of the petitioners is
based on the basis of calculation of vacancies taking
into account the total vacancies in the quota. They did
not take into consideration the backlog vacancies
which were required to be filled in, in the selection
process conducted on the basis of Advertisement
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
No.02/2017.
(iii) it is submitted by the learned Advocate
General that the circular in Advertisement No.02/2017
which was issued for providing horizontal reservation
ought to be read with roster. Any discussion of
reservation policy without roster system is an
incomplete and truncated argument which the Court
cannot consider."
67. The learned Advocate General first refers to the
legal opinion contained in Annexure-P/2 of the writ petition.
The rule relating to filling up of posts on the basis of
reservation as per the guideline made by the Hon'ble Supreme
Court in the case of Anil Kumar Gupta (supra) is to fill up the
50% vacancy which is sought to be filled up on the basis of
merit, first, from the category of selected candidates in Open
Competition, then fill up each of social reservation quotas i.e.
SC, ST and BC; the third steps would be to find out how many
candidates belonging to special reservation have been selected
on the above basis. If the quota fixed for horizontal reservation
is already satisfied, in case it is an over all 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 and accommodate against
the respective social reservation categories by deleting the
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
corresponding number of candidates therefrom. If, however, it
is a case of compartmentalized horizontal reservation, then the
process of verification of adjustment/accommodation as stated
above, should be applied separately to each of the vertical
reservation. In such a case, the reservation of 15% in favour of
special categories, over all may be satisfied or may not be
satisfied.
68. Thus, it is urged by the learned Advocate General
that while filling up backlog vacancy in unreserved quota on
the basis of merit, a list is to be prepared in respect of
successful candidates in 50% unreserved quota, then it is to be
looked into how many women candidates in the open category
were selected and the said number of selected women
candidates would be subtracted from the number of 35%
horizontal reservation. The remaining women candidates
would be accommodated under horizontal reservation to
complete 35% quota of women. Therefore, the petitioners were
absolutely wrong in pleading that they are entitled to 35 posts
of total vacancy in unreserved quota and the B.P.S.C. failed to
accommodated.
69. The learned Advocate General further submits
that prior to 2016, there was no horizontal reservation so
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
backlog vacancy was declared to be considered on the basis of
roster for fixing reservation. In support of his contention, he
refers to the Appendix of Notification No.2342 (Annexure-P/2
at Page-37 of the writ petition). In the notification in respect of
34% of vacancies in unreserved category, roster point was
stated to be 3, 9, 15, 21, 27, 33, 39, 45, 49, 55, 61, 67, 73, 79,
85, 91 and 97, in all 17 posts out of 100 posts. Similarly, roster
point in respect of the horizontal vacancy in the quota of
Extremely Backward Class and Backward Class was stated as
illustration.
70. The learned Advocate General repeatedly submits
that percentage of posts and roster point are integral part of
reservation and it cannot be applied sans either of the two.
71. It is pointed out by the learned Advocate General
that the petitioners did not challenge the validity of the circular
dated 15.02.2016.
72. The learned Advocate General next refers to
Paragraph Nos.9 & 10 of the counter affidavit filed on behalf
of respondent Nos. 5 & 6. In paragraph No.9 it is clearly stated
that 35% horizontal reservation for women candidates in the
recruitment process of post and services of the State is in
principle. In fact, 3% vertical reservation for women of
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
Backward Classes (WBC) are admissible prior to this
horizontal reservation, meaning thereby 35% horizontal
reservation is admissible only against 97% posts and 35% of
97% comes only as 34.
73. Thus, it is contended on behalf of the State-
Respondents that if 100 candidates are selected in unreserved
category, 34% of the same would be women.
74. It is also stated on behalf of State-Respondents
that 35% horizontal reservation for women has been
formulated vide Circular No.2342 dated 15.02.2016 issued by
the Administration Department (Annexure-P/2 of the writ
petition), whereas the advertisement in question was published
in 2017. In the course of roster clearance some posts were so
calculated as a backlog for different categories, which were
prior to the enforcement of the said circular, hence, against the
backlog vacancies, the horizontal reservation for women were
not admissible.
75. Thirdly, the case of the respondents is that as the
percentage of horizontal reservation was declared on principle
as State policy, therefore, only in ideal condition where roster
point 1 to 100 are used, the equilibrium of 35% horizontal
reservation for women is maintained i.e. 34 posts for women
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
are essentially been provided to them. In such case, all the
earmarked roster points go to the women category.
76. It is further contended on behalf of the State that
if 35% of posts in horizontal vacancy is attempted to be filled
up, this will violate the equilibrium of horizontal reservation.
For example, when roster point 8, 9 and 10 are used, in such
situation, all the three roster points go to women for different
categories. Because of the fact, roster point 8 is earmarked for
E.B.C. (female), roster point 9 is earmarked for U.R. (Female)
and roster point 10 is earmarked for S.C. (Female). Again
where roster point between 8 to 12 are used, reservation for
women is 80% on the other hand when roster point 50 to 54
are used, there is no post earmarked for women, i.e. no post
falls under horizontal reservation among the said roster points.
In support of such contention, the learned Advocate General
refers to Annexure-D of the counter affidavit.
77. Coming to the factual aspect of the instant case, it
is stated by the respondents that the Building Construction
Department, there were 122 vacancies reported out of which
38 posts were calculated as backlog. In this way, the current
vacancies were only 84 against which, 22 posts were made
available to the women as a horizontal reservation. Roster
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
clearance for 122 posts was made in two transactions.
Naturally, there is a shortfall of horizontal reservation in the
said case.
78. In Rural Works Department, there were 250
vacancies reported, against which 17 posts were calculated as
backlog. In this way the current vacancies available were only
232 wherein roster clearance for 59 posts were given to the
women as a horizontal reservation as the roster clearance for
250 posts has been done in two transactions, there is minor
shortfall of horizontal reservation for women in this case.
79. In respect of Road Construction Department,
there were 236 vacancies, against which 57 posts were
calculated as a backlog. Thus, the current vacancies were only
179 in the roster clearance 56 posts were given to the women
as a horizontal reservation, as roster clearance for 236 posts
have been done in two transactions there was minor shortfall
of horizontal reservation for woman.
80. Again in Public Health Engineering Department,
there were 64 vacancies reported against which 17 were given
to the women as horizontal vacancies. Since, the roster
clearance for 64 posts have been done in three transactions,
there is an automatic shortfall in the horizontal reservation for
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
women in this case.
81. Again in Planning and Development Department,
there were 270 vacancies, out which 92 posts were given to the
women as a horizontal reservation. As the roster clearance for
270 posts has been done in one transaction. The quota of
horizontal reservation has been fully filled up.
82. In Water Resources Department, there were 280
vacancies, against which 73 posts were given to the women as
a horizontal reservation also 23 posts were given to the women
for Backward Classes (WBC), as a backlog there is a shortfall
of horizontal reservation in this case but it is due to calculation
of backlog for WBC in the roster clearance.
83. In Minor Resources Department, there were 56
vacancies reported earlier but on letter pad, the vacancies were
revised and it was reported that only 31 posts were vacant,
against which two posts calculated as backlog and 5 posts were
given to the women as horizontal reservation, as roster
clearance for 31 posts has been done in two transaction, there
is also a minor shortfall in horizontal reservation for women in
this case.
84. Thus, it is admitted in Paragraph No.10 (i to vii)
that backlog vacancies were also filled up by virtue of
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
Advertisement No.02/2017. In respect of backlog vacancies
there was no reservation. Thirdly, 35% of horizontal vacancies
were calculated only after deducting the backlog vacancies
from the declared vacant seats in the aforesaid advertisement
and fourthly, in respect of filling up of 35 / 34% reservation of
women, there was some shortfall in the process of calculation.
85. The learned Advocate General next relies on
Annexure-G of the supplementary counter affidavit filed on
behalf of respondent No.5 on 13.05.2022. In the remark
column of Annexure-G which is not a document duly signed
by any Member of Authority of the State Government or the
B.P.S.C., it is stated that in Planning and Development
Department, out of 270 candidates permissible number of
horizontal reservation is 92 and 92 candidates were recruited
because of the fact that the roster clearance of total 270 posts
was done in only one transaction, hence, the number of posts
under horizontal reservation for women was fully filled up.
86. In Minor Resources Department, out of 31 posts
excluding backlog vacancies there were 11 posts to be filled up
by horizontal reservation and 5 post were filled up, due to the
reason that earlier the Administrative Department reported the
total vacancy was 56. Later, it was revised and roster was
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
made for 31 posts, in which 02 posts have been made available
as backlog for women of backward classes. The deficiency in
the number of posts under horizontal reservation for women is
visible due to the aforesaid revision of roster.
87. In respect of Water Resources Department, there
were 270 vacancies out of which 92 posts were fixed as
horizontal reservation and 73 posts were filled up. It is clearly
stated in the remark column that 23 posts have been made
available for women of Backward Classes. Thus, the shortage
of posts under reservation for women is visible due to
availability of 23 posts for women of Backward Classes in the
form of backlog.
88. In respect of Building Construction Department,
84 posts were declared, out of which, 29 posts in horizontal
reservation were fixed out of the said 29 posts, 22 posts were
filled up. Due to the reason that roster clearance for total 122
posts (with 32 posts backlog) has been done in two
transactions. Hence, there was some vacancy in the number of
posts under horizontal reservation for women.
89. In Rural Development Department, out of 233
vacant posts, the number of horizontal reservation for women
was 79 but 59 posts were filled up. Due to the reason that
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
roster clearance for a total 250 posts (with 17 posts backlog)
has been done in two transactions. Therefore, there was some
vacancies under horizontal reservation for women.
90. In respect of Road Construction Department, out
of 179 declared vacant posts, the number of horizontal
reservation was 80 and out of the said 80 posts, 56 posts were
filled up. It is stated in remark column that roster clearance for
total 236 posts (with 57 posts backlog) has been done in two
transaction, therefore, there was some mismatch in filling up of
horizontal vacancies.
91. In Public Health Engineering Department, there
was 64 posts, out of which, the number of horizontal vacancy
was 22 and 17 posts were filled up, due to the reason that the
roster clearance was done in three transactions and it is natural
that there would be a reduction in number of posts under
horizontal reservation for women.
92. I have already pointed out that the petitioner of
CWJC No.15520 of 2021 has filed third supplementary
affidavit on 01.03.2023. In the said supplementary affidavit the
petitioner has annexed a letter written by the Deputy Secretary
of the General Administration Department to the Secretary,
Bihar Public Service Commission on 24.08.2022.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
93. In paragraph No.3 of the said letter, The Deputy
Secretary, General Administration Department has referred to
Clause (9) of the Resolution No.962 dated 22.01.2021 issued
by the General Administration Department, stating, inter-alia,
as follows :-
"Where a vacancy cannot be filled in any
recruitment year due to non-availability of
persons with disabilities referred to above or for
any other sufficient reason, such vacancy shall be
carried forward to the subsequent recruitment
year by marking it in the unreserved category."
94. It is also stated in the said letter in Paragraph
No.4:-
"4. Therefore, in the light of the order
passed by the Hon'ble High Court, Patna on
17.05.2022 in CWJC No.15520 of 2021 (Sushma
Kumari Vs. Bihar Public Service Commission and
others) and on 18.08.2022 in MJC No.1247 of 2022
(Sushma Kumari Vs. Bihar Public Service
Commission and others) and subject to the final order
passed to be passed in LPA No.309 of 2022 (State of
Bihar and others Vs. Sushma Kumari), filed by the
State Government against order passed in CWJC
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
No.15520 of 2021, Bihar Public Service Commission
is permitted to select the petitioner Ms. Sushma
Kumari against a vacant post from the 17 unreserved
vacant posts earlier requisitioned but earmarked for
disabled persons against the horizontal reservation of
35 percent for women under the unreserved category,
for the time being, revised requisitioned for only
1(one) post is being sent to the Bihar Public Service
Commission.
95. Thus, the petitioner of CWJC No.15520 of 2021
was appointed in respect of one post earmarked for physically
challenged candidates by way of backlog vacancy.
96. In reply, the learned Senior Counsel on behalf of
the petitioners submits that 100 Points Modal Roster is not
applicable in the case of horizontal reservation, inasmuch as,
the cases in hand are for recruitment carried out after coming
into effect of Bihar Act 02/2019 (Reservation made for EWS
category). However, the present case relates to Assistant
Engineer (Civil) pursuant to the Advertisement No.02/2017
dated 03.03.2017 and as such the 100 Point Modal Roster as
produced by the learned Advocate General has no relevance in
the adjudication of the present case.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
97. The learned Senior counsel for the petitioner also
submits that the basis for calculation arrived at by the
respondent-State is not apparent from the department wise
candidate shown in the comparative chart. In fact, through the
comparative chart too, the respondents-State has admitted to
the fact that there was shortfall in providing category wise
35% horizontal reservation to women in the recruitment
process in question.
98. It is also submitted by the learned Senior Counsel
on behalf of the petitioners that as per the comparative chart,
department wise vacancies advertised in the Advertisement
No.02/2017 has been reduced for computation of women
reservation on the ground of their being backlog vacancies
which were purportedly carry forward for the previous
recruitment process. However, neither the advertisement nor
any pleading support this claim of the respondents-State and as
such the same may be ignored at this stage of argument.
99. The learned Senior Advocate for the petitioners
further submits that a bare perusal of the comparative charge
as produced would reveal that the respondents have erred in
properly implementing the 35% horizontal reservation made
for women.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
100. It is further submitted by the learned Senior
Advocate for the petitioners that the problem has arisen due to
the fact that the respondents are implement to the horizontal
reservation in the same manner as they would have
implemented vertical reservation. This misapplication by the
respondents has resulted in a particular situation, where 35%
horizontal reservation could not be achieved.
101. The respondents, tried to explain the shortfall, by
relying on Model Roster Point for each department. The
argument is flawed on two counts: Firstly, there is no pleading
or documentary basis for implementation of given roster
points. Secondly, it does not stand to reason that 35%
horizontal reservation, under a given policy, can never be
achieved due to given roster points.
102. The learned Senior Counsel on behalf of the
B.P.S.C. has adopted the submission made by the learned
Advocate General, for the State.
103. Having considered the submissions made by the
learned Senior Counsels in most erudite and comprehensive
way, I like to state at the outset that the issue relating to
horizontal and vertical reservations and the actual concept
between the two as well as differences, if any, and subject
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
matters of decision by the Hon'ble Supreme Court in number
of cases. In Indra Sawhney Vs. Union of India, reported in
1992 Supplementary 3 SCC 217, the Supreme Court held that
there are two types of reservations; vertical and horizontal, in
Saurav Yadav Vs. State of U.P. (supra) it was decided by the
Hon'ble Supreme Court that vertical reservation is not
compatible with the concept of horizontal reservation.
104. In short, vertical reservation is a social
reservation for Schedule Castes, Schedule Tribes and Other
Backward Classes under Article 16(4) of the Constitution of
India. It is the highers form of special provision and cannot
exist 50% of total seats. Horizontal reservation, on the
contrary, is a special reservation for other disadvantage
citizens, such as women, persons with disabilities, and the
transgender community, under Article 15(3) and 16(1) of the
Constitution of India. It is a lesser form of special provision
and cuts across vertical reservation.
105. In the State of Tamil Nadu and others Vs. K.
Shobana and others, reported in (2021) 4 SCC 686, the
Hon'ble Supreme Court relying on its previous decision in
Saurav Yadav Vs. State of U.P., reported in (2021) 4 SCC 542
approved the ways and means of filling up of posts on
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
horizontal reservation relying on the decision of the Single
Bench of Madras High Court in K.R. Shanthi Vs. State of
Tamil Nadu, reported in (2012) SCC Online Mad. 5451,
Paragraph No.14 of the said judgment, which is reproduced by
the Hon'ble Supreme Court is quoted below :-
"14. A perusal of the above judgments would
keep at least two things beyond any pale of doubt.
Firstly, the roster is not vacancy based, but the same is
only post based. It identifies the number of posts
earmarked for various categories under the vertical
reservations and posts left behind for open quota as
well as special reservations. Secondly, after so
identifying the posts, it should be calculated as to how
many vacancies are to be filled up under various
categories in the current selection. If once the number
of vacancies earmarked for each category in the
current selection is identified by using the roster,
thereafter the roster will have no further role to play in
the matter of selection. After identifying the number
of vacancies earmarked for various categories, the
selection for each category has to be made purely
based on merit following the method detailed below:
First Step:
(i) As against the number of vacancies
identified for open quota, irrespective of caste, sex,
physically challenged, etc. everyone should be
allowed to compete based on merits.
(ii) The meritorious candidates should be
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
first selected as against the above vacancies under
open quota.
Second Step:
(iii) After completing the first step, moving
on to the vertical reservation categories, selection has
to be made for each category from amongst the
remaining candidates belonging to the particular
reserved category (vertical) based on merits.
Third Step:
(iv) After completing the second step,
horizontal reservation which cuts across the vertical
reservation has to be verified as to whether the
required number of candidates who are otherwise
entitled to be appointed under the horizontal
reservation have been selected under the vertical
reservation.
(v) On such verification, if it is found that
sufficient number of candidates to satisfy the special
reservation (horizontal reservation) have not been
selected, then required corresponding number of
special reservation candidates shall have to be taken
and adjusted/ accommodated as against social
reservation categories by deleting the corresponding
number of candidates therefrom.
(vi) Even while filling up the vacancies in the
vertical reservation, if, sufficient number of
candidates falling under the horizontal reservation
have been appointed, then, there will be no more
appointment exclusively under the horizontal
reservation.
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
Caution:
(vii) At any rate, the candidates who were
selected as against a post under open quota shall not
be adjusted against the reserved quota under vertical
reservations."
106. In view of such circumstances, it is incumbent
upon the Public Service Commission to fill up 35% of
horizontal reservation, reserved for women from different
quota of unreserved and reserved candidates. If on merit some
female candidate is already recruited in the selection list, the
percentage of number would be deducted from total 35% of
women reservation.
107. Neither the B.P.S.C., nor the State-Respondents
have done the said exercise before publication of selected list
and recruitment of candidates.
108. In view of such circumstances, the B.P.S.C. is
directed to make the exercise as per the direction of the
Hon'ble Supreme Court in State of Tamil Nadu Vs. K.
Shobana, (2021) 4 SCC 686.
109. Since, the B.P.S.C. has not stated anything
regarding backlog vacancy in the advertisement at the
subsequent stage of filling up of horizontal reservation or at
the stage of argument, the respondents cannot take such plea as
a matter of defence. In this regard, this Court may profitably
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
rely on the celebrated decision on the Division Bench of
Calcutta High Court in the case of A.E.G. Carapiet Vs. A.Y.
Derderian, reported in AIR 1961 Calcutta 359, it is observed
in Paragraph No.10 of the said judgment :-
"10. The law is clear on the subject. Wherever
the opponent has declined to avail himself of the
opportunity to put his essential and material case in
cross-examination, it must follow that he believed
that the testimony given could not be disputed at all.
It is wrong to think that this is merely a technical
rule of evidence. It is a rule of essential justice. It
serves to prevent surprise at trial and miscarriage of
justice, because it gives notice to the other side of
the actual case that is going to be made when the
turn of the party on whose behalf the cross-
examination is being made comes to give and lead
evidence by producing witnesses. It has been stated
on high authority of the House of Lords that this
much a counsel is bound to do when cross-
examining that he must put to each of his opponent's
witnesses in turn, so much of his own case as
concerns that particular witness or in which that
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
witness had any share. If he asks no question with
regard to this, then he must be taken to accept the
plaintiff's account in its entirety. Such failure leads to
miscarriage of justice, first by springing surprise
upon the party when he has finished the evidence of
his witnesses and when he has no further chance to
meet the new case made which was never put and
secondly, because such subsequent testimony has no
chance of being tested and corroborated."
110. In a writ petition the statement made in counter
affidavit can be equated with the counter evidence, wherein it
is the incumbent duty of the respondents not only to deny the
prosecution case but to assert its own case to the effect that the
number of vacancies advertised in Advertisement No.02/2017
were inclusive of backlog vacancies. In the absence of such
case, subsequent argument cannot be relied on and accepted
for consideration by this Court.
111. For the reasons stated above, the instant writ
petition is disposed of directing the B.P.S.C. (respondent No.4
& 5) to recalculate the horizontal vacancy in terms of the
declared percentage against the declared unreserved quota and
re-write the cut off mark. The respective case of the petitioners
Patna High Court CWJC No.5493 of 2022 dt.07-02-2025
shall be decided on the basis of the new cut off mark to be
fixed by the Public Service Commission in the light of the
observation made herein-above. Entire exercise shall be done
within 60 days from the date of communication of this order.
112. With the above direction, the writ petitions are
disposed of.
(Bibek Chaudhuri, J)
mdrashid/-
AFR/NAFR AFR
CAV DATE 10.12.2024
Uploading Date 07.02.2025
Transmission Date 07.02.2025
