High Court · 2025

Mr. P.S. Bisht , learned Addl. CSC, for t he St at e

2. of Ut t arakhand. Ms. Menka Tripat hi, learned counsel for t he

3. respondent - UPSC.

4. Mr. Susheel Kum ar, learned counsel holding brief of Mr. Gaurav Singh, learned counsel for t he respondent nos.3, 4, 5 and 9.

5. Pet it ioners part icipat ed in t he select ion held by Ut t arakhand Public Service Com m ission for t he post of Lect urer in different Governm ent Polyt echnics. Since t heir nam es do not figure t he list of successful candidat es, t herefore, t hey have filed t his writ pet it ion on t he ground t hat wom en candidat es were appoint ed in excess of t he reservat ion quot a available t o t hem .

6. The reliefs sought in t his writ pet it ion are as follows: “ A. To issue a wr it order or direct ion in t he nat ure of Cert iorari by quashing t he im pugned select ion dat ed 30- 08- 2017 ( Cont ained as Annexure No.1) so far as relat es t o t he privat e respondent s, aft er calling t he ent ire records. B. To issue a writ order or direct ion in t he nat ure 2 t he act ion of non- select ing t he of m andam us declaring Respondent No. t he pet it ioners for post of Lect urer Civil Engineering t he Polyt echnic College ( Annexure advert isem ent dat ed 16- 04- 2015 No.3) reservat ion as arbit rary and illegal. applying wrong in pursuance procedure t o t o in pursuance C. To issue a writ order or direct ion in t he nat ure of m andam us com m anding t he Respondent No. 2 t o t reat t he pet it ioners as select ed candidat e t he post of Lect urer Civil Engineering Polyt echnic College t he advert isem ent dat ed 16- 04- 2015 ( Annexure No.3) on t he basis of t heir m arks and furt her direct t he respondent no.1 t o consider t he case of t he pet it ioners for appoint m ent on t he post of Lect urer Civil Engineering Polyt echnic College in pursuance t o t he advert isem ent dat ed 16- 04- 2015 ( Annexure No 3) on t he basis of t heir m arks obt ained in t he writ t en exam inat ion, aft er correct ly applying t he principle of reservat ion and law on t he subj ect and aft er calling t he ent ire records from t he respondent s.”

7. Ms. Menka Tripat hi, learned counsel appearing for Ut t arakhand Public Service Com m ission subm it s t hat t ot al 24 vacancies on t he post of Lect urer ( Civil Engineering) were advert ised, out of which 8 were reserved for Ut t arakhand wom en; since candidat es belonging t o Ut t arakhand wom en cat egory scored sufficient ly high m arks so as t o be included in t he open cat egory, t herefore, candidat es belonging t o wom en cat egory were select ed in excess of t he quot a available t hem . She relies upon t he j udgm ent rendered by t he Hon’ble Apex Court in t he case of “ Sa u r a v Ya d a v & o t h e r s Vs. St a t e o f Ut t a r Pr a d e sh ” , report ed in ( 2021) 4 SCC 542 for cont ending t hat wom en candidat es, if out perform ot her candidat es, including m ale candidat es, t hen t hey have t o select ed against unreserved open cat egory vacancies. Paragraphs 60, 61, 62, 65 and 66 of t he said j udgm ent are ext ract ed below: - t he inviolat e reservat ions “ int erlocking” “ 6 0 . Horizont al reservat ions on t he ot her hand, by t heir nat ure, are not inviolat e pools or carved in st one. They are prem ised on t heir overlaps and are [ The expression used by B.P. Jeevan Reddy, J., in I ndra Sawhney v. Union of I ndia, 1992 Supp ( 3) SCC 217 : 1992 SCC ( L&S) Supp 1.] . As a sequel, t hey are t o be calculat ed concurrent ly and along w it h ( or “ social” ) reservat ion quot as, by applicat ion of t he various st eps laid out wit h clar it y in para 21.3 [ Ed . : See also paras 21.4, 21.6, para 23.11 r/ w para 43 and paras 30 t o 43.] of Lalit , J.'s j udgm ent . They cannot be carried forward. The first rule t hat applies t o filling horizont al reservat ion quot as is one of adj ust m ent i.e. t he exam ining whet her on m erit any of horizont al cat egories are adj ust ed in t he m erit list in t he open cat egory, and t hen, in t he quot a for such horizont al cat egory wit hin t he part icular specified/ social reservat ion. “ vert ical” Public Daria v. Raj ast han 6 1 . The open cat egory is not a “ quot a” , but rat her available t o all wom en and m en alike. Sim ilarly, as held in Raj esh Kum ar Daria [ Raj esh Kum ar Service Com m ission, ( 2007) 8 SCC 785 : ( 2009) 1 SCC ( L&S) 1055] , t here is no quot a for m en. I f we are t o accept t he second view [ as held by t he Allahabad High Court in Aj ay Kum ar v. St at e of U.P. [ Aj ay Kum ar v. St at e of U.P., 2019 SCC OnLine All 2674 : ( 2019) 5 All LJ 466] and t he Madhya Pradesh High Court in St at e M.P. v. Uday Sisode [ St at e of M.P. v. Uday Sisode, 2019 SCC OnLine MP 5750] , referred t o in paras 24 and 25 of Lalit , J.'s j udgm ent ] , t he result would be confining t he num ber of wom en candidat es, irrespect ive of t heir perform ance, in t heir social reservat ion cat egories and t herefore, dest ruct ive of logic and m erit . The second view, t herefore — perhaps unconsciously support s— but definit ely result s in confining t he num ber of wom en in t he select list t o t he overall num erical quot a assured by t he rule. 6 2 . I n m y opinion, t he second v iew collapses com plet ely, when m ore t he st ipulat ed percent age 20% ( say, 40% or 50% ) of wom en t he m ost m erit orious candidat es cat egory. The in Aj ay second Kum ar [ Aj ay Kum ar v. St at e of U.P., 2019 SCC figure t han in Union of OnLine All 2674 : ( 2019) 5 All LJ 466] and Uday Sisode [ St at e of M.P. v. Uday Sisode, 2019 SCC OnLine MP 5750] t hus penalises m erit . The principle of m obilit y or m igrat ion, upheld by t his Court I ndia v. Ram esh Ram [ A t hree- Judge Bench in ( 2009) 6 SCC 619 : ( 2009) 2 SCC ( L&S) 234, referred t he m at t er t o be heard by a Const it ut ion Bench of five Judges in Union of I ndia v. Ram esh Ram , ( 2010) 7 SCC 234 : ( 2010) 2 SCC ( L&S) 412, which t ook not e of t he j udgm ent in I ndra Sawhney v. Union of I ndia, 1992 Supp ( 3) SCC 217 : 1992 SCC ( L&S) Supp 1, wherein it was held t hat : ( SCC p. 735, para 811) “ 811. I n t his connect ion it is well t o rem em ber t hat t he reservat ions under Art icle com m unal like a 16( 4) do not operat e reservat ion. t hat som e I t m ay well happen m em bers belonging t o, say, Scheduled Cast es get select ed in t he open com pet it ion field on t he t hey will not be basis of reserved count ed against Scheduled Cast es; t hey will be t reat ed as open com pet it ion candidat es.” ] and ot her cases, would t hen have discrim inat ory applicat ion, as it for m obilit y of special cat egory would apply m en, but would not apply t o t he case of wom en in such special cat egories ( as glaringly evident from t he fact s of t his case) t o wom en who score equal t o or m ore t han t heir count erpart s in t he open/ general cat egory. t heir own m erit ; t he quot a 6 5 . I n view of t hese clear decisions, it is t oo lat e in t he day for t he respondent St at e t o cont end t hat wom en candidat es who are ent it led t o benefit of social cat egory reservat ions, cannot fill open cat egory vacancies. The said view st arkly exposed as m isconceived, because would result in such wom en candidat es wit h less m erit ( in t he open cat egory) being select ed, and t hose wit h m ore m erit t han such select ed candidat es, ( in t he social/ vert ical reservat ion cat egory) being left out of select ion. saying conclude 6 6 . I would t hat reservat ions, bot h vert ical and horizont al, are in public m et hod of ensuring represent at ion services. These are not t o be seen as rigid “ slot s” , where a candidat e's m erit , which ot herwise ent it les her t o be shown in t he open general t he consequence would be, if t he St at e's argum ent is accept ed. Doing so, would in a social com m unal cat egory is confined wit hin t he ext ent of t heir t hus negat ing m erit . The open reservat ion, result reservat ion, where each foreclosed, cat egory, cat egory is open t o all, and t he only condit ion for a candidat e t o be shown in it is m erit , regardless of whet her reservat ion benefit of eit her t ype is available t o her or him .”

8. Law is well set t led t hat t he unreserved vacancies are open t o all candidat es, and a reserved cat egory candidat e, by virt ue of his/ her higher m erit can m igrat e t o open cat egory and t here is no law which prohibit s such m igrat ion. I t is not in disput e t hat t he last wom an candidat e, who was select ed in t he im pugned select ion, had secured 60 m arks while pet it ioners could score only 57 and 58 m arks respect ively in t he said select ion. Therefore, t he process of select ion cannot be fault ed.

9. Thus, t here is no scope for int erference. The writ pet it ion fails and is hereby dism issed. ( A sh i sh N a i t h a n i , J) ( M a n o j K u m a r Ti w a r i , J)

19.03.2025 NR/