WPSB/416/2017 of ANKIT SHRIKOTI Vs STATE OF UTTARAKHAND

of mandamus declaring the action of the Respondent No. 2 in non-selecting the petitioners for post of Lecturer Civil Engineering Polytechnic College in pursuance to the advertisement dated 16-04-2015 (Annexure No.3) by applying wrong procedure of reservation as arbitrary and illegal. C. To issue writ order or direction in the nature of mandamus commanding the Respondent No. 2 to treat the petitioners as selected candidate for the post of Lecturer Civil Engineering Polytechnic College in pursuance to the advertisement dated 16-04-2015 (Annexure No.3) on the basis of their marks and further direct the respondent no.1 to consider the case of the petitioners for appointment on the post of Lecturer Civil Engineering Polytechnic College in pursuance to the advertisement dated 16-04-2015 (Annexure No 3) on the basis of their marks obtained in the written examination, after correctly applying the principle of reservation and law on the subject and after calling the entire records from the respondents.”

7. Ms. Menka Tripathi, learned counsel appearing for Uttarakhand Public Service Commission submits that total 24 vacancies on the post of Lecturer (Civil Engineering) were advertised, out of which 8 were reserved for Uttarakhand women; since candidates belonging to Uttarakhand women category scored sufficiently high marks so as to be included in the open category, therefore, candidates belonging to women category were selected in excess of the quota available for them. She relies upon the judgment rendered by the Hon’ble Apex Court in the case of “Saurav Yadav & others Vs. State of Uttar Pradesh”, reported in (2021) 4 SCC 542 for contending that women candidates, if outperform other candidates, including male candidates, then they have to selected against unreserved open

“60. Horizontal reservations on the other hand, by their nature, are not inviolate pools or carved in stone. They are premised on their overlaps and are “interlocking” reservations [ The expression used by B.P. Jeevan Reddy, J., in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1.] . As sequel, they are to be calculated concurrently and along with the inviolate “vertical” (or “social”) reservation quotas, by application of the various steps laid out with clarity in para 21.3 [Ed. : See also paras 21.4, 21.6, para 23.11 r/w para 43 and paras 30 to 43.] of Lalit, J.'s judgment. They cannot be carried forward. The first rule that applies to filling horizontal reservation quotas is one of adjustment i.e. examining whether on merit any of the horizontal categories are adjusted in the merit list in the open category, and then, in the quota for such horizontal category within the particular specified/social reservation. 61. The open category is not “quota”, but rather available to all women and men alike. Similarly, as held in Rajesh Kumar Daria [Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 : (2009) 1 SCC (L&S) 1055] , there is no quota for men. If we are to accept the second view [as held by the Allahabad High Court in Ajay Kumar v. State of U.P. [Ajay Kumar v. State of U.P., 2019 SCC OnLine All 2674 : (2019) 5 All LJ 466] and the Madhya Pradesh High Court in State of M.P. v. Uday Sisode [State of M.P. v. Uday Sisode, 2019 SCC OnLine MP 5750] , referred to in paras 24 and 25 of Lalit, J.'s judgment], the result would be confining the number of women candidates, irrespective of their performance, in their social reservation categories and therefore, destructive of logic and merit. The second view, therefore — perhaps unconsciously supports—but definitely results in confining the number of women in the select list to the overall numerical quota assured by the rule.

62. In my opinion, the second view collapses completely, when more than the stipulated percentage 20% (say, 40% or 50%) of women candidates figure in the most meritorious category. The said second view in Ajay Kumar[Ajay Kumar v. Stateof U.P., 2019SCC

OnLine All 2674 : (2019) 5 All LJ 466] and Uday Sisode [State of M.P. v. Uday Sisode, 2019 SCC OnLine MP 5750] thus penalises merit. The principle of mobility or migration, upheld by this Court in Union of India v. Ramesh Ram [ three-Judge Bench in (2009) 6 SCC 619 : (2009) 2 SCC (L&S) 234, referred the matter to be heard by Constitution Bench of five Judges in Union of India v. Ramesh Ram, (2010) 7 SCC 234 : (2010) 2 SCC (L&S) 412, which took note of the judgment in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1, wherein it was held that : (SCC p. 735, para 811)“811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.”] and other cases, would then have discriminatory application, as it would apply for mobility of special category men, but would not apply to the case of women in such special categories (as glaringly evident from the facts of this case) to women who score equal to or more than their counterparts in the open/general category.

65. In view of these clear decisions, it is too late in the day for the respondent State to contend that women candidates who are entitled to benefit of social category reservations, cannot fill open category vacancies. The said view is starkly exposed as misconceived, because it would result in such women candidates with less merit (in the open category) being selected, and those with more merit than such selected candidates, (in the social/vertical reservation category) being left out of selection.

66. I would conclude by saying that reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where candidate's merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the State's argument is accepted. Doing so, would result in communal reservation, where each social category is confined within the extent of their reservation,thus negating merit. Theopen